                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                _____________

                                 No. 96-3528
                                _____________

James M. McGaffin, III, and           *
Deborah McGaffin,                     *
                                      *
           Appellant,                 *
                                      *
     v.                               * On Appeal from the
                                      * United States Tax Court.
                                      *
Commissioner of Internal              *
Revenue,                              *
                                      *
           Appellee.                  *
                                 ___________

                   Submitted: April 14, 1997

                         Filed: April 22, 1997
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, FAGG and MURPHY, Circuit Judges.
                               ___________


RICHARD S. ARNOLD, Chief Judge.


     Under the Internal Revenue Code, ministers and other members of the
clergy can receive an exemption from self-employment tax if they are
conscientiously opposed to the tax and if they file a request for the
exemption, called a Form 4361, by a certain specified time.   The question
presented in this case is whether the     taxpayers, the Reverend and Mrs.
James McGaffin, III, appellants in
this Court, made a timely filing of their Form 4361.      The Tax Court1 found
against them, and they appeal.


        We affirm.     The question whether the form was filed on time is a
question of fact.      The taxpayers had the burden of proof.    After a trial,
the Tax Court found that the form was not mailed on time.         Mr. McGaffin
testified that it was mailed on time, on April l5, 1986, along with his
income-tax return for the year 1985.      The records of the Internal Revenue
Service, on the other hand, show that the income-tax return was not
received until June 9, 1986.       There is no record of the Form 4361's ever
being received.      The Tax Court was convinced that the Form 4361 was mailed
along with the income-tax return, crediting Mr. McGaffin’s testimony to
this extent, but it was not convinced that the form and the return were
mailed on April 15, 1986, which was the deadline for the filing of the
form.


        The finding of the Tax Court is not clearly erroneous.       It was not
required to believe all of Mr. McGaffin’s testimony.     As the trier of fact
with both live and documentary evidence before it, it was open to the Tax
Court to conclude that the taxpayer’s memory was faulty.        The judgment is


        Affirmed.


        A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




        1
      James M. McGaffin, III, T.C. Memo. 1996-290 (June 24, 1996)
(John F. Dean, Special Trial Judge).

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