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that he submitted a Form 4361 to the IRS before his letter in May
of 1996 or that an application for exemption was ever approved.2
Because a search of IRS and SSA records by respondent for
Mr. Vigil’s Form 4361 failed to discover the original form, and
since petitioners failed to carry their burden of proving that
the form was filed, we find that petitioners did not timely file
a request for exemption as required by section 1402(e).
Petitioners claimed that their C.P.A. showed the Form 4361
to the IRS agent examining their 1994 return and that this
documentation ultimately resulted in the no-change letter from
the IRS for 1994.3 Petitioners contend that the decision by the
IRS not to change their tax for 1994 proves that the IRS accepted
Mr. Vigil’s exemption for 1994 and establishes that the
2 At times during the trial, Mr. Vigil intimated that he
submitted Form 4361 to the IRS in 1980. Such a submission would
have been timely. The copy of the only Form 4361 introduced into
evidence bears a signature date of “April 7, 198”. The last
digit of the year appears to have been cut off in copying. Mr.
Vigil’s May 1996 letter provided this copy to the IRS. In that
letter, Mr. Vigil wrote that he had filed the Form 4361 on April
7, 1987. He testified that the signature date should be April 7,
1987, but he also claimed that he might have submitted the Form
4361 much earlier in the 1980s. However, the Form 4361 in the
record bears a revision date of March 1986. Since the version of
the Form 4361 completed by Mr. Vigil did not exist before 1986,
it follows that he could not have timely submitted this form by
the due date of his 1981 return, even with extensions, as
required by sec. 1402(e)(3).
3 It is doubtful, however, that petitioners shared with the
IRS examiner the June 11, 1996, notice from the IRS stating that
both the IRS and the SSA had searched their records but neither
could find any record of Mr. Vigil’s ever filing Form 4361.
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