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informed petitioners that a notice of deficiency had been issued
for 1999, petitioners repeatedly asked respondent for a copy of
the notice and proof of delivery. When respondent was unable to
provide such information, see supra note 1, petitioner visited
the Bowie, Maryland, Post Office and asked a manager to conduct a
search of the Post Office’s records for delivery information.
The manager found no indication that the notice of deficiency had
been delivered.2
Petitioners’ course of conduct indicates they would have
sought review of the notice of deficiency had they received it.
We therefore conclude that petitioners have rebutted the
presumption of delivery. See Butti v. Commissioner, supra.
Because respondent introduced no other evidence establishing that
petitioners actually received the notice, we conclude that
petitioners can challenge the underlying tax liability. See sec.
6330(c)(2)(B). Our standard of review is de novo. Sego v.
Commissioner, 114 T.C. at 610.
2 As respondent notes, petitioner introduced no evidence
concerning the length of time the Post Office maintains records
of certified mail deliveries. Thus, respondent argues that
petitioner’s failure to obtain delivery information may indicate
only that the Post Office deleted such information from its
files, and not that the Post Office failed to deliver the notice.
We agree the absence of delivery information does not necessarily
indicate that the notice was not delivered. Rather, we find
petitioner’s visit to the Post Office to be further evidence of
petitioners’ aggressiveness in challenging respondent’s
determinations. See Butti v. Commissioner, T.C. Memo. 2006-66.
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Last modified: November 10, 2007