David and Gail Vigil - Page 11




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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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