                        T.C. Memo. 2003-256



                      UNITED STATES TAX COURT



         WALTER R. HUFF AND LUCY C. HUFF, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9102-02.              Filed August 25, 2003.



     Walter R. Huff, pro se.

     Jean Song, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioners petitioned the Court to

redetermine a $29,771 deficiency in their 1997 Federal income

tax, a $4,115 addition thereto under section 6651(a)(1), and a

$4,517 accuracy-related penalty under section 6662(a).    We decide

the only issue that petitioners raised in their petition and

discussed in their brief; namely, whether the applicable 3-year
                               - 2 -

period of limitations under section 6501(a) has run as to their

1997 taxable year.   We hold it has not.    Unless otherwise noted,

section references are to the applicable versions of the Internal

Revenue Code.

                         FINDINGS OF FACT

     Some facts were stipulated.   The stipulated facts and the

accompanying exhibits are incorporated herein by this reference.

We find the stipulated facts accordingly.    Petitioners resided in

Montgomery, Texas, when their petition was filed.

     Petitioners filed with respondent a 1997 Form 1040, U.S.

Individual Income Tax Return, using the filing status of “Married

filing joint return” and reporting their “total tax” and “total

[tax] payments” for the year as $13,340 and $16,327,

respectively.   The return consisted of seven single-sided pages.

The information that petitioners furnished in the signature block

on page 2 of the Form 1040 (i.e., signatures, date of signatures,

and occupations) was all written by hand, as were two “X”s that

were placed in the “No” blocks to questions requiring the

checking of a “Yes” or “No” box.   All other information

petitioners reported on their 1997 return was typed.    Petitioners

reported on the 1997 return that they had each signed the return

on April 15, 1998.

     Walter R. Huff (Mr. Huff) testified at trial that he mailed

petitioners’ 1997 return to respondent between 10:30 p.m. and
                                 - 3 -

10:45 p.m. on April 15, 1998, in an envelope that also contained

petitioners’ completed 1997 Form 4868, Application for Automatic

Extension of Time to File U.S. Individual Income Tax Return.      Mr.

Huff testified that he mailed this envelope by placing it in a

post office box at a post office near his home in Chino Hills,

California.   Respondent’s records indicate that his department in

Fresno, California, received petitioners’ 1997 tax return on

April 23, 1999, and respondent filed that return as of that date.

Respondent mailed the subject notice of deficiency to petitioners

on March 7, 2002.

     Petitioners’ 1997 Form 4868 is a one-page document on which

petitioners listed their names, address, Social Security numbers,

and numeric answers to requested information concerning their

1997 Federal income tax.    The requested information was “4   Total

tax liability for 1997", “5    Total 1997 payments”, and “6

Balance.   Subtract 5 from 4".   Petitioners answered that their

total tax liability for 1997 was “15,800", that their total 1997

tax payments equaled “15,800+”, and that their balance was zero.

All of the information that petitioners listed on their 1997 Form

4868 was written by hand.    Petitioners requested through this

Form 4868 an extension of time until August 15, 1998, to file

their 1997 Federal income tax return.    Respondent filed this Form

4868 as of April 15, 1998.
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     During the subject year, Mr. Huff was an attorney

specializing in personal injury work in the State of California.1

He practiced law through his sole proprietorship.    His practice

during 1997 paid wages of $92,000 to his wife and withheld from

those wages Federal income taxes of $16,327.    These withholdings

were the only Federal income tax payments petitioners made during

1997.

     Respondent’s records show that petitioners filed their 1991

Federal income tax return untimely on June 5, 1994, that they

filed their 1992 Federal income tax return untimely on October

20, 1993, that they filed their 1993 Federal income tax return

untimely on February 9, 1995, that they filed their 1994 Federal

income tax return untimely on October 15, 1995, that they filed

their 1995 Federal income tax return untimely on June 11, 1997,

that they filed their 1999 Federal income tax return untimely on

September 13, 2001, and that they filed their 2000 Federal income

tax return untimely on September 17, 2001.2    Respondent’s records

show that petitioners filed their 1996 Federal income tax return

timely on July 31, 1997, after requesting and receiving an

extension of the due date for the return to August 15, 1997, and


     1
       As of May 5, 2003, the date of trial, Mr. Huff had been
practicing law for 14 years.
     2
       Petitioners had received extensions until Aug. 15, 1995,
and Aug. 15, 2001, to file their returns for 1994 and 2000,
respectively.
                                 - 5 -

that petitioners filed their 1998 Federal income tax return

timely on April 15, 1999.

                               OPINION

     Petitioners argue that the applicable period of limitations

under section 6501(a) has run.    We disagree.   The Commissioner

generally must assess tax against individual taxpayers such as

petitioners within 3 years of the later of the due date or the

filing date of their return.   Sec. 6501(a) and (b)(1); Mecom v.

Commissioner, 101 T.C. 374, 382 (1993), affd. without published

opinion 40 F.3d 385 (5th Cir. 1994).     On the basis of the

credible evidence in the record, we find as facts that

petitioners filed their 1997 return with respondent on April 23,

1999, and that respondent issued to them the subject notice of

deficiency within 3 years after that date.

     Mr. Huff testified that he mailed petitioners’ 1997 return

to respondent on April 15, 1998.    We find that testimony to be

uncorroborated and incredible.3    We need not and do not rely upon

that testimony for the purpose of reaching our decision herein.

See Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 115 (5th

Cir. 1987); Ruark v. Commissioner, 449 F.2d 311, 312 (9th Cir.

1971), affg. per curiam T.C. Memo. 1969-48; Neonatology

Associates, P.A. v. Commissioner, 115 T.C. 43, 84 (2000), affd.

     3
       Although petitioners reported on their 1997 return that
they each signed the return on Apr. 15, 1998, we do not find that
to be the date on which the return was filed.
                               - 6 -

299 F.3d 221 (3d Cir. 2002).   In fact, on the basis of our

perception of Mr. Huff as he testified, and our evaluation of his

overall testimony in the light of the record as a whole, we

reject petitioners’ argument on brief that Mr. Huff’s testimony

constitutes “credible evidence” sufficient to shift the burden of

proof to respondent under section 7491(a).

     Mr. Huff during his testimony had a selective loss of

memory; for example, he could vividly recall specific facts that

supported his case but generally had no recollection as to many

other facts which could have been detrimental to his case (e.g.,

whether he filed timely his 1997 State income tax return, whether

he filed timely his 1991 through 1993 Federal income tax

returns).   He also testified that he prepared petitioners’ 1997

Form 4868 immediately after he had finished preparing their 1997

Form 1040 and that he prepared the former document because he was

concerned that the latter document would not be postmarked

timely.   In that the 1997 Form 1040 reports for 1997 that

petitioners’ total tax and total tax payments equal $13,340 and

$16,327, respectively, petitioners’ reporting on their 1997 Form

4868 that their total tax and total tax payments for that year

equaled $15,800 and “$15,800+”, respectively, indicates that Mr.

Huff did not readily know when he prepared the 1997 Form 4868 the

precise amount of either petitioners’ total tax or their tax

payments.
                               - 7 -

     The fact that Mr. Huff testified that he mailed the 1997

Form 1040 and the 1997 Form 4868 to respondent in the same

envelope also undercuts his testimony that he filed the Form 4868

simply out of concern that the Form 1040 would not be postmarked

timely.   A request for an automatic extension of time to file a

tax return must be filed before the unextended due date of that

return.   See sec. 1.6081-4(a)(3), Income Tax Regs.   We are hard

pressed to understand how an attorney such as Mr. Huff could have

expected or perceived that two documents mailed to respondent in

the same envelope would be treated by respondent as filed on

different dates.   We also are hard pressed to understand why, if

Mr. Huff had prepared the 1997 Form 4868 immediately after he

completed the 1997 Form 1040, as he testified, petitioners typed

almost all of the information on the 1997 Form 1040 but hand

wrote the minimal information reported on the 1997 Form 4868.    We

also note that although Mr. Huff indicated during his testimony

that petitioner Lucy C. Huff could corroborate his assertion that

he had filed their 1997 tax return late on the evening of

April 15, 1998, he neither called her to testify under oath as to

this matter nor offered a valid explanation as to why she was

unavailable to testify.   We can only assume that petitioner Lucy

C. Huff’s testimony as to this matter would have been unfavorable

to petitioners’ case.   See, e.g., Wichita Terminal Elevator Co.
                               - 8 -

v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513

(10th Cir. 1947).

     The thrust of petitioners’ argument is that they must

prevail because respondent has not produced the envelope in which

respondent received their 1997 tax return.   Petitioners note that

respondent acknowledges that respondent lost or destroyed this

envelope and that respondent’s witness, an employee of

respondent, testified that respondent attaches to all late filed

returns the envelope in which the return was received.

Petitioners assert that the envelope, by its postmark, would have

confirmed Mr. Huff’s testimony that he mailed petitioners’ 1997

tax return to respondent on April 15, 1998, that section 7502

would then treat the postmark date as the date of filing,4 and

that the period of limitations under section 6501 would then be

shown to have run before respondent issued the subject notice of

deficiency to them.   As petitioners see it, section 7502 “imparts

upon respondent the burden of preserving and producing the

envelope since * * * the envelope is the sole exclusive evidence

on the issue of timely mailing/timely filing.”



     4
       Sec. 7502(a) provides that a return timely mailed as
evidenced by a U.S. postmark is deemed timely filed even though
delivered to the Commissioner after the due date. When a return
is mailed to the Commissioner after the due date, the return is
considered filed when the Commissioner receives it. Emmons v.
Commissioner, 92 T.C. 342, 346-347 (1989), affd. 898 F.2d 50 (5th
Cir. 1990).
                                 - 9 -

     We disagree with petitioners that respondent’s failure to

produce the envelope in which respondent received their 1997 tax

return means as a matter of law that we must decide this case for

them.     In order to reach their desired end, petitioners rely

erroneously on Lewis v. United States, 144 F.3d 1220 (9th Cir.

1998), and Anderson v. United States, 966 F.2d 487 (9th Cir.

1992).5    In each of those cases, the taxpayer produced credible

evidence of the date of mailing of the document in question.

Here, by contrast, we do not find that Mr. Huff testified

credibly that he mailed petitioners’ 1997 Form 1040 timely.

     Because respondent has failed to produce the envelope

containing petitioners’ return, we decide this case as if the

postmark were missing; thus, petitioners may rely upon extrinsic

evidence to prove that the postmark, if present, would have been

timely.     See Jacobson v. Commissioner, 73 T.C. 610, 615, 616

(1979).     The only evidence petitioners introduced as to this




     5
       We understand petitioners to argue that we should decide
this case by following the jurisprudence of the Court of Appeals
for the Ninth Circuit. While we generally follow a decision
squarely in point of a circuit in which a case is appealable, see
Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985
(10th Cir. 1971), absent the parties’ stipulation to the
contrary, an appeal of this case lies in the Fifth Circuit; i.e.,
the circuit in which petitioners resided when they filed their
petition with this Court, sec. 7482(b)(1)(A) and (2). In any
event, our decision would be the same whether appeal lay to the
Court of Appeals for the Fifth Circuit or to the Court of Appeals
for the Ninth Circuit.
                              - 10 -

matter was Mr. Huff’s testimony, which we do not find to be

credible.6   We hold for respondent.

     We have considered all arguments made by the parties and, to

the extent not discussed herein, have rejected those arguments as

meritless.


                                             Decision will be

                                        entered for respondent.




     6
       Mr. Huff testified that he used his private postage meter
machine to stamp the date on the envelope used to mail
petitioners’ 1997 return to respondent. In certain cases,
privately metered mail received after a due date may be
considered timely even if the mail actually was received beyond
the normal delivery period. Sec. 301.7502-1(c)(1)(iii)(B)(1),
Proced. & Admin. Regs. In those cases, the taxpayer must
establish that: (1) The mail was deposited in the U.S. mail on
or before the due date before the last collection of mail from
that place of deposit, (2) the delay was attributable to delay in
the transmission of the U.S. mail, and (3) the cause for such
delay. Sec. 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs.
Petitioners have not established timely deposit, and they have
offered no persuasive reason as to why their return was received
by respondent more than 1 year after it was allegedly mailed.
