Douglas Leroy and Nancy Helene Maxfield - Page 9




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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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