                        T.C. Memo. 1997-102



                      UNITED STATES TAX COURT



     MELTON R. BOONE AND GERALDINE R. BOONE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24295-92.             Filed February 27, 1997.



     Melton R. Boone and Geraldine R. Boone, pro sese.

     Horace Crump, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     SCOTT, Judge:   Respondent determined deficiencies in

petitioners' Federal income taxes and additions to tax for the

taxable years 1985 through 1988 as follows:
                                 -2 -

                                              Additions to Tax
        Year              Deficiency           Sec. 6651(a)(1)
        1985               $6,890                  $813
        1986                7,080                   685
        1987                5,095                   164
        1988                3,338                    51

All issues but one have been settled or conceded by the parties.1

The only issue remaining for decision is whether petitioners are

liable for additions to tax under section 6651(a)(1)2 for failure

to file timely Federal income tax returns for the years 1985

through 1987.

                           FINDINGS OF FACT

        Some of the facts have been stipulated and are found

accordingly.     The stipulation of facts and the exhibits attached

thereto are incorporated herein by reference.

        Petitioners, husband and wife, were residents of Crestview,

Florida, at the time they filed their petition in this case.

        Sometime between 1985 and the time of trial, Melton R. Boone

(petitioner) experienced brain hemorrhaging.      As a result, he

could not safely drive, and his son, Melton R. Boone, Jr., drove


    1
       With respect to whether petitioner's civil service
retirement income is taxable, the parties agreed to be bound by
the Veterans' Administration's disability determination.
Petitioners conceded that respondent's determination of their
Schedule C income for 1985 through 1987 is correct. Finally,
petitioners conceded at trial that they are liable for the
addition to tax for failure to file a timely return under sec.
6651(a)(1) for 1988.
    2
       All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                               -3 -

him to and from his regular work as D.P. Manager for the city of

Pembroke Pines, Florida, during each of the years in issue.

     Petitioners requested, and respondent granted, an extension

of time for them to file their Federal income tax return for each

of the years 1985 through 1987.   Not having received returns from

petitioners for 1985 through 1987, on April 26, 1990, respondent

prepared and filed substitute returns for them for each of these

years.   On June 1, 1990, the Internal Revenue Service Center in

Atlanta received purported copies of Federal income tax returns

from petitioners that had been prepared by petitioner for the

years 1985 through 1987.   The 1985 return was dated May 26, 1986,

the 1986 return was dated May 30, 1987, and the 1987 return was

dated May 24, 1988.   Although each return claimed that

petitioners were due a refund, petitioner, who was a part-time

income tax return preparer, did not contact the Internal Revenue

Service (IRS) to determine why the refunds were never received

for the taxable years 1985 through 1987.

     In the notice of deficiency respondent determined that

petitioners are liable for additions to tax under section

6651(a)(1) for failing to file a timely Federal income tax return

for each of the years 1985 through 1987.

                              OPINION

     Section 6651(a)(1) imposes a 5-percent-per-month addition to

tax, not to exceed 25 percent, for failure to file a timely

return, unless the taxpayer establishes:   (1) The failure did not
                               -4 -

result from willful neglect; and (2) the failure was due to

reasonable cause.   Willful neglect has been interpreted to mean a

conscious, intentional failure, or reckless indifference.      United

States v. Boyle, 469 U.S. 241, 245-246 (1985).      Reasonable cause

requires the taxpayer to demonstrate that he exercised ordinary

business care and prudence and was nonetheless unable to file a

return within the prescribed time.    Id. at 246.

     Petitioners were granted automatic 4-month extensions of

time within which to file their 1985, 1986, and 1987 Federal

income tax returns.   The returns were due on August 15, 1986,

August 15, 1987, and August 15, 1988, respectively.     Sec.

1.6081-4, Income Tax Regs.   Purported copies of the returns were

not received by the Atlanta Internal Revenue Service Center until

June 1, 1990.

     Petitioner testified that he mailed their 1985, 1986, and

1987 tax returns on May 26, 1986, May 30, 1987, and May 24, 1988,

respectively.   He contends that the returns were timely filed

because they were deposited with proper postage in a mailbox

outside the main post office in Perrine, Florida, each year

within the extended filing periods allowed.   He then argues that

once the returns were placed in the U.S. Postal Service mailbox,

petitioners' responsibility for their delivery ended.     As to what

may have happened to the returns, petitioner speculates that:

(1) The mailbox was tampered with by vandals or thieves; (2)

vandals unbolted the mailbox from its base and took the mail; (3)
                               -5 -

postal employees stole the mail; or (4) the IRS lost or misfiled

the returns because of its ineptitude.   To say the least, we

regard such speculations as farfetched and unreliable.

Moreover, we think it is highly improbable that the returns

allegedly deposited with the U.S. Postal Service in late May for

3 successive years would not have been delivered to the IRS or

that each return was lost or misplaced by the IRS.

     Petitioner also offered his son's testimony in an effort to

corroborate his own to show that petitioners timely filed their

returns for each year.   Petitioner and his son testified that

petitioners' Federal income tax return for each of the years in

issue was mailed during their drive home from work.   But the son

later testified that the returns were mailed late at night.     When

asked by the Court to reconcile the two seemingly conflicting

statements, the son admitted that he did not remember the

specific circumstances surrounding the mailing of petitioners'

returns.   However, the son testified that his returns for 1985

through 1987, which he thought were mailed at the same time

petitioners' returns for these years were mailed, were timely

received by the IRS.

     Respondent's position is that petitioners have failed to

prove that their returns for the years in issue were timely

filed.   We agree.

     Section 7502(a) provides that the date of the U.S. postmark

stamped on the cover in which a return is filed is deemed the
                                -6 -

date the return was filed if the postmark date is within the

period for filing the return and the return is delivered after

the date it was required to be filed.     If no evidence establishes

the postmark date of a return, the date the return was delivered

is the date the return was filed.      Here petitioners provided no

evidence of a U.S. postmark.    Consequently, section 7502 is not

applicable.

     It has been held, however, that section 7502 does not

displace the common law presumption of delivery (the mailbox

rule).   Anderson v. United States, 966 F.2d 487, 491 (9th Cir.

1992); cf. Konst v. Florida E. Coast Ry., 71 F.3d 850, 854 (11th

Cir. 1996).    Under the common law mailbox rule, the proper

mailing of a return gives rise to a rebuttable presumption of

delivery.   Anderson v. United States,     supra at 491.   When a

taxpayer is unable to produce documentary evidence that a return

was mailed, we have allowed indirect, credible evidence to prove

the date of postmark.    See Estate of Wood v. Commissioner, 92

T.C. 793, 798 (1989) (accepting testimony of a postmistress who

affixed the postmark to the envelope containing the return),

affd. 909 F.2d 1155 (8th Cir. 1990).     By contrast, petitioners in

this case have not produced credible evidence that their returns

were timely mailed and postmarked.     We are not persuaded by

petitioner's self-serving testimony.     We think it is significant

that petitioner failed to inquire about the refunds claimed on

the returns.    It seems improbable to us that if petitioners had
                                -7 -

filed returns showing refunds due for 1985 through 1987,

petitioner, an income tax return preparer, would not have made

certain that the refunds were received.

     In addition, we do not find the testimony of petitioners'

son credible as to whether, or when, they mailed their returns

for the years in issue.   His testimony was contradictory and

uncertain.    It is unlikely that petitioners' returns were mailed

at the same time as, and along with, their son's returns for 1985

through 1987 because their son's returns were apparently received

by the IRS.

     Accordingly, we conclude that petitioners did not file any

Federal income tax returns for the years 1985 through 1987 other

than the copies of the returns received by respondent on June 1,

1990.   They, of course, were untimely filed.

     Next, we consider whether petitioners have shown that they

had reasonable cause for filing their 1985, 1986, and 1987 tax

returns late.   Continuous illness or incapacity may constitute

reasonable cause if the taxpayer establishes that he was so ill

that he was unable to file a tax return.      Williams v.

Commissioner, 16 T.C. 893 (1951).      Respondent contends that

petitioner was not so ill during the years in issue that he could

not have filed the returns on time.

     At some point after 1985, petitioner experienced a brain

hemorrhage and was unable to perform some of the tasks associated

with daily living, such as safely driving an automobile.
                                   -8 -

However, he presented no evidence suggesting that he was so ill

during those years that he was unable to file a return.        To the

contrary, petitioner was regularly employed by the city of

Pembroke Pines and worked as an income tax return preparer during

the years 1985 through 1987.    He even stated at trial that he was

physically able to file a return during those years in issue.

While we are sympathetic to petitioner's physical condition

during the years 1985 through 1987, we are unable to find that he

was so ill that he could not file a return.        Consequently, we

hold that petitioners have not shown they had reasonable cause

for failing to file their Federal income tax returns in a timely

manner.

       Having found that petitioners did not file timely Federal

income tax returns for 1985 through 1987, and that there was no

reasonable cause for their failure to do so, it follows that they

are liable for the additions to tax under section 6651(a)(1).

Therefore, it is not necessary to decide whether their failure

was due to willful neglect.    United States v. Boyle, 469 U.S. at

245.

       To reflect the foregoing,



                                                    Decision will be

                                          entered under Rule 155.
