[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

       United States Court of Appeals
           For the First Circuit

No. 97-2380

           FREDERIC S. CLAYTON and
             MARLENE B. CLAYTON,

           Petitioners, Appellants,

                      v.

      COMMISSIONER OF INTERNAL REVENUE,

            Respondent, Appellee.

        ON APPEAL FROM THE DECISION OF
         THE UNITED STATES TAX COURT

                    Before

            Selya, Circuit Judge,

Rosenn* and Campbell, Senior Circuit Judges.

Robert S. Grodberg with whom Zimble &amp; Brettler was on brief
for appellants.
Laurie Snyder with whom Kenneth L. Greene, Attorneys, Tax
Division, Department of Justice, and Loretta C. Argrett, Assistant
Attorney General, were on brief for appellee.

June 10, 1998

     

*Of the Third Circuit, sitting by designation.

Per Curiam.  The Commissioner assessed a deficiency in
Appellants' return for taxable year 1985.  Appellants sought review
in the Tax Court, which rejected their challenge, and now appeal to
this court.  Having reviewed Appellants' briefs and heard argument,
we affirm the decision of the Tax Court substantially for the
reasons set out in its opinion.  Clayton v. Commissioner, 74 T.C.M.
(CCH) 146, T.C.M (RIA) 97,327 (1997).  
We specifically note that we are unable to find clear
error in the Tax Court's determination that there was insufficient
evidence to satisfy Appellants' burden of proof regarding the
mailing of the fourth amended return.  The Tax Court was not
obliged to accept taxpayer Mr. Clayton's testimony as determinative
that the fourth amended return was in fact mailed, given the
evidence of non-delivery, his lack of specificity as to details,
and the other factors noted in the Tax Court's decision and pointed
out in the government's brief.  While the issue was perhaps close,
Appellants have not shown that the Tax Court's finding was clearly
erroneous.  See 26 U.S.C.  7482(a) (providing that Courts of
Appeals review decisions of the Tax Court in the same manner as
district court decisions in non-jury matters); McMurray v.
Commissioner, 985 F.2d 36, 41 (1st Cir. 1993).
In respect to the other issues Appellants raise, we are
likewise satisfied that the Tax Court committed neither legal error
nor clear factual error.
Affirmed.
