Douglas Leroy and Nancy Helene Maxfield - Page 7




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          Postal Service certified mailing list reflecting delivery of a              
          document by the Commissioner to the Postal Service represents               
          direct evidence of mailing.  August v. Commissioner, 54 T.C.                
          1535, 1536-1537 (1970); Hovind v. Commissioner, supra.                      
               Respondent introduced the testimony of a settlement officer            
          who described respondent’s mailing practices.  Respondent also              
          introduced a certified mailing list indicating that a notice of             
          deficiency had been mailed to petitioners at their address in               
          Bowie, Maryland.  The settlement officer testified there was no             
          indication of irregularity in the preparation or mailing of the             
          notice of deficiency.1                                                      
               We find that respondent properly mailed the notice of                  
          deficiency to petitioners’ last known address.  A presumption of            
          delivery therefore arises.  See Zenco Engg. Corp. v.                        
          Commissioner, supra.  We conclude, however, that petitioners have           
          rebutted the presumption of delivery.  Our conclusion is based on           
          petitioner’s credible testimony as well as their history of                 


               1 The settlement officer acknowledged that respondent’s                
          administrative file did not contain a copy of the notice that was           
          sent to petitioners.  The Commissioner’s failure to produce a               
          copy of a notice of deficiency may indicate that no notice was              
          mailed.  See Pietanza v. Commissioner, 92 T.C. 729, 735-736                 
          (1989), affd. without published opinion 935 F.2d 1282 (3d Cir.              
          1991).  However, that is not necessarily the case where, as here,           
          the Commissioner introduces a copy of a certified mailing list              
          and the corroborating testimony of an Internal Revenue Service              
          employee.  See Webb v. Commissioner, T.C. Memo. 1996-449.                   
          Because petitioners concede the notice was mailed, we need not              
          address this issue further.                                                 






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