Petition for Writ of Certiorari — Carroll v. Commissioner

951601 MAR 2 5 19%

OFFICE OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1995

e

¥

JAMES R. CARROLL and DOROTHY A. CARROLL,

Petitioners.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

+

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

+

PETITION FOR WRIT OF CERTIORARI

+

Dudley W. Taylor

Counsel of Record

Stephen W. Gibson

One Centre Square, Suite 240

620 Market Street

Knoxville, Tennessee 37902

(423) 523-3672

.

QUESTION PRESENTED

Should this Court grant certiorari to review the

decision of the United States Court of Appeals for the Sixth

Circuit, which that Court acknowledged was an issue on

which the circuits are divided, to wit: Whether the

common law "mailbox rule," under which proof of the

mailing of a properly addressed communication bearing

proper postage raises a rebuttable presumption of receipt in

due course by the addressee, is a rule that applies to matters

sent to the Internal Revenue Service by regular mail?

i |

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............. |

TABLE OF CONTENTS ............-. i

TABLE OF AUTHORITIES ............. ii

OPpatns BRLOW .; ae 2 |

RINNE ae 2 |

STATUTORY PROVISION ............. 2 |

“USC. ONS: C....<.. ce 2

BURG MING Or ae 3 |

STATEMENT OF THE CASE ............ 4 |

REASONS FOR GRANTING THE WRIT .... 6 |

|

CONE ERIONG Fo 55 ee ee 9 |

ill

TABLE OF AUTHORITIES

Page

Cases Crrep:

Midlantic National Bank v. New Jersey

Department of Environmental Protection,

oR SS a 7

Anderson v. United States,

966 F.2d 487 (9th Cir. 1992) ...... igh 7

Deutsch v. Commissioner of Internal Revenue,

599 F2d 44 (2nd Cir. 1979), cert. denied,

are 8

Miller v. United States,

784 F.2d 728 (6th Cir. 1986) ........... &

Wood v. Commissioner, 92 T.C.

793 (1989) (en banc), aff'd

909 F.2d 1155 (8th Cir. 1990)........... 6

In The

Supreme Court of the United States

October Term, 1995

ra

¥

JAMES R. CARROLL and DOROTHY A. CARROLL,

Petitioners,

Vv.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

r

vv

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

rs

v

PETITION FOR WRIT OF CERTIORARI

+

Petitioners, James R. Carroll and Dorothy A. Carroll,

respectfully pray that a Writ of Certiorari issue to review the

Judgment of the United States Court of Appeals for the Sixth

Circuit entered on December 26, 1995.

OPINIONS BELOW

The United States Tax Court denied Petitioners’

Petition for a redetermination of a deficiency set forth by

Respondent, based upon Respondent’s contention that

Petitioners had not timely filed the necessary form. By

Order and Decision of May 24, 1994, the United States Tax

Court determined a deficiency of $22,479.25 with respect to

the 1988 federal income tax liability of Petitioners. On

December 26, 1995, the United States Court of Appeals for

the Sixth Circuit affirmed the lower court’s decision, holding

that it was bound by circuit precedent to do so. (App. 1-9).

JURISDICTION |

Judgment of the United States Court of Appeals for

the Sixth Circuit was entered on December 26, 1995. This

Court’s jurisdiction to consider this Petition from the final

Judgment of the United States Court of Appeals for the Sixth

Circuit is invoked pursuant to 28 U.S.C. §1254.

STATUTORY PROVISIONS

(a) 26 U.S.C. 7502(a)(1):

If any return, claim, statement, or other

document required to be filed, or any payment

required to be made, within a prescribed

ee Ee ROE TT ET a oe Oe

3

period or on or before a prescribed date under

authority of any provision of the internal

revenue laws is, after such period or such

date, delivered by United States mail to the

agency, officer, or office with which such

return, claim, statement, or other document is

required to be filed, or to which such payment

is required to be made, the date of the United

States postmark stamped on the cover in

which such return, claim, statement, or other

document, or payment, is mailed shall be

deemed to be the date of delivery or the date

of payment, as the case may be.

(b) 26 U.S.C. 7502(c)(1):

For purposes of this section, if any such

return, claim, statement, or other document, or

payment, is sent by United States registered

mail --

(A) such registration shall be

prima facie evidence that the

return, claim, statement, or

other document was delivered

to the agency, officer, or office

to which addressed, and

(B) the date of registration

shall be deemed the postmark

date.

4

STATEMENT OF THE CASE

Petitioner James R. Carroll acquired control of a

Tennessee corporation, late in the year 1986. He determined

to exercise the election permitted by the Internal Revenue

Code to have the corporation taxed as an "S corporation."

Thereafter, IRS Form 2553 (the "Form") was duly prepared,

signed by Petitioner, and given by Petitioner to his secretary

for mailing. In order to effectively elect S corporation tax

treatment for the calendar year 1987, the Form was required

to be filed with Respondent no later than Monday, March 16,

1987.

Petitioner Carroll’s secretary put the signed Form in

a properly addressed envelope, affixed the necessary postage,

and handed the envelope to a messenger who made a special

trip with it to a United States post office in Knoxville,

Tennessee. The envelope was duly deposited in a mail

receptacle inside the post office. The Tax Court

subsequently found as a fact that the signed Form had been

mailed to the IRS on January 21, 1987.

While not challenging the Tax Court’s finding that

the Form was properly mailed 54 days before the filing

deadline, the IRS has not been able to locate the original

Form, and its records therefore do not indicate that the Form

was ever filed.

Petitioners filed a joint federal income tax return for

1987, in which they claimed a pass-through loss with respect

to the corporation. The claimed loss was disallowed by the

IRS on the ground that there had been no election to have

the corporation treated as an S-corporation in 1987, which

disallowance resulted in a finding of a tax deficiency for

1988.

5

The United States Tax Court had jurisdiction over this

matter pursuant to 26 U.S.C. §7442. The Tax Court

conducted a hearing and found that the election Form had

been mailed to the IRS on January 21, 1987. Because the

Form had not been sent by registered or certified mail,

however, and because the United States Court of Appeals for

the Sixth Circuit refuses to apply the common law "mailbox

rule," which would have created a presumption that the IRS

received the mailing prior to March 16, 1987, the Tax Court

concluded that the evidence was insufficient to prove a

timely filing of the Form. Accordingly, the Tax Court

decided that there was a deficiency of $22,479.25 in the

Petitioner’s 1988 federal income tax.

On appeal, the United States Court of Appeals for the

Sixth Circuit noted that, with the enactment of 26 U.S.C.

§7502(a), Congress provided that a document mailed to the

IRS on or before a filing date and delivered by the postal

service after the deadline would be deemed received on the

date of the postmark. Congress went on to say in

§7502(c)(1)(A) that a showing that the document had been

sent by registered mai! would constitute prima facie evidence

of delivery to the IRS.

The subject statute was silent as to the result where,

as here, a taxpayer could prove that a document had been

timely mailed to the IRS, but because of the loss of the

document -- and because of the use of regular mail rather

than registered or certified mail -- the taxpayer could offer

no direct proof that the document had been postmarked on or

before the filing deadline and actually delivered to the IRS.

The question for the Court of Appeals was whether

the subject statute had the effect of repealing the common

law "mailbox rule," by which proof of the mailing of a

6

properly addressed envelope bearing proper postage raises a

rebuttable presumption of receipt in due course by the

addressee. The Court acknowledged a split among the

circuits as to whether this question should be answered

affirmatively or negatively, and it concluded that in the Sixth

Circuit precedent bound it to answer affirmatively. The

decision of the Tax Court, accordingly, was upheld.

REASONS FOR GRANTING THE WRIT

The various circuits of the United States Court of

Appeals are in conflict with respect to an important federal

question presented to this Court. The question is important

because it can affect any taxpayer in the United States of

America to that taxpayer’s economic detriment.

In its Opinion below, the United States Court of

Appeals for the Sixth Circuit reviewed the division among

the circuits with respect to this important question. It

carefully considered the decision of Wood v, Commissioner,

92 T.C. 793 (1989) (en banc), aff'd 909 F.2d 1155 (8th Cir.

1990). In Wood, supra, the Tax Court rejected the

proposition that, under 26 U.S.C. §7502, delivery of mail

which the IRS has not been able to locate can be proved only

by producing a receipt for registered or certified mail. The

Tax Court concluded that a Congressionally sanctioned,

assured method of proof *. . . does not in law or logic forbid

any other method unless Congress expressed intent to

exclude other methods. No such expression exists." /d. At

798.

7

The Court of Appeals for the Eighth Circuit affirmed

the Tax Court’s decision in Wood, supra, applying the

principle that "[wjhen interpreting a statute, we must

consider the statute in light of judicial concepts [in this case,

the common law presumption of delivery] existing before it

. . » was enacted." 909 F.2d at 1160, as quoted in App.,

page 6, herein.

The Court of Appeals in Wood, supra, further noted

that Congress must be supposed to have known of the

common law presumption of delivery, and that if "Congress

intends for legislation to change the interpretation of a

judicially created concept, it makes that intent specific." /d.,

quoting Midlantic National Bank v. New Jersey Department

of Environmental Protection, 474 U.S. 494 (1986).

The position taken in Wood, supra, has been adopted

by the United States Court of Appeals for the Ninth Circuit

in Anderson v. United States, 966 F.2d 487 (9th Cir. 1992).

In that Opinion, the Court said the following:

. . .We agree with the Eighth

Circuit that enactment of

Section 7502 did not displace

the common law presumption

of delivery. The statute itself

does not reflect a clear intent

by Congress to displace the

common law mailbox rule

[under which proper and

timely mailing of a document

raises a rebuttable presumption

that it is received by the

addressee}. At 491.

This position has not been followed by the Sixth

Circuit. It held in Miller v. United States, 784 F.2d 728

(1986), that the only exceptions to the physical delivery rule

are the two set out in §7502. In reaching its decision, the

Sixth Circuit cited Deutsch v. Commissioner of Internal

Revenue, 599 F2d 44 (2nd Cir. 1979), cert. denied, 444 U.S.

1015 (1980).

In its Opinion below, the Sixth Circuit notes that it

was invited recently to reconsider Miller, supra, in an en

banc proceeding. A three judge panel refrained from any

expression of opinion as to the soundness of contrary

decisions, and concluded that the clear precedent in its circuit

bound it to reject the common law "mailbox rule." The

Court was petitioned for a rehearing en banc on the question,

and a number of the judges (including the author of the

decision below) voted in favor of rehearing, although the

number was less than a majority.

With obvious regret, the decision below by the United

States Court of Appeals for the Sixth Circuit states the

following:

If the Carrolls [Petitioners] had

been residents of any state

other than Tennessee,

Kentucky, Ohio, Michigan,

Connecticut, New York, or

Vermont, the Tax Court would

have allowed them to invoke

the presumption of delivery

and would have decided this

case in their favor. Because

the Carrolls live in Tennessee,

however, the presumption of

| a, 4

quay

9

delivery does not work for

them. (App., page 9).

This Court should review this decision and exercise

its authority to achieve uniformity among the conflicting

circuits as to whether the common law "mailbox rule" applies

to matters sent to the Internal Revenue Service by regular

mail. The result for these Petitioners, according to the

appellate Court below, is in conflict with 43 other states in

this Union, and that conflict can only be resolved by this

honorable Court. Taxpayers such as these Petitioners should

not be subjected to differing treatment as to this important

question, based solely upon where they happen to reside.

CONCLUSION

For all of the reasons stated, Petitioners, James R.

Carroll and Dorothy A. Carroll, respectfully pray that this

Court grant a writ of certiorari to review the decision of the

United States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

The Taylor Law Firm

10

G

St n W. Gibson

Suite 240,

One Centre Square

620 Market Street

Knoxville, Tennessee 37902

(423) 523-3672

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the

foregoing pleading has been served upon all counsel of

record by placing same in the United States mail, properly

addressed and with euttiplont postage affixed thereto to

ensure delivery this 22 at day of March, 1996.

ey W. Ta

ee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1995 FED App. 0379P (6th Cir.)

File Name: 952a0379p.06

No. 94-1938

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

COMMISSIONER OF INTERNAL

REVENUE,

Respondent-Appellee.

Decided and Filed December 26, 1995

Before: MILBURN and NELSON, Circuit Judges;

MORTON, District Judge.”

DAVID A. NELSON, Circuit Judge. This is a tax case

that presents an issue on which the circuits are divided:

“The Honorable L. Clure Morton, United States District Judge for

the Middle District of Tennessee, sitting by designation.

l App. 1

2 Carroll, et al. v. Commissioner No. 94-1938

whether the common law “mailbox rule," under which

proof of the mailing of a properly addressed

communication bearing proper postage raises a rebuttable

presumption of receipt in due course by the addressee, is

a rule that applies to matter sent to the Internal Revenue

Service by regular mail. Circuit precedent requires us to

hold that the common law rule has no application where the

IRS is involved. In this circuit, a taxpayer who sends a

document to the IRS by regular mail, as opposed to

registered or certified mail, does so at his peril.

I

On November 8, 1986, petitioner James R. Carroll, a

resident of Knoxville, Tennessee, purchased the stock of a

Tennessee corporation known as Volunteer Distribution Co.

Mr. Carroll decided to elect "S-corporation” tax status for

Volunteer, so that the earnings and losses of the

corporation would be passed through to him as owner. The

appropriate election form (IRS Form 2553) was duly signed

by Mr. Carroll as an officer of the electing corporation and

as the consenting stockholder.

Mr. Carroll signed the form on January 21, 1987. If it

were to be effective for the tax year at issue here, the

signed form had to be filed with the IRS no later than

Monday, March 16, 1987.

Mr. Carroll arranged to have the form mailed to the IRS

Service Center in eo Tennessee, on the same day

the form was signed. His secretary put the signed form in

a properly addressed envelope, affixed the necessary

postage, and handed the envelope to a messenger who

made a special trip with it to the Knoxville post office.

The messenger gg the envelope in a mail receptacle

inside the post office. The Tax Court subsequently found

as a fact, following an evidentiary hearing, that the signed

form had been mailed to the IRS on January 21, 1987.

The IRS does not challenge the accuracy of Tax Court’s

factual finding that the signed form was properly mailed to

the Memphis Service Center some 54 days before the filing

App. 2

No. 94-1938 Carroll, et al. v. Commissioner 3

deadline. Unfortunately for Mr. Carroll and his wife,

however, the IRS has not been able to locate the original

form. The records of the Memphis Service Center do not

indicate that the form was ever filed.

When asked at the hearing 5 at a et coveanea win

service center, a representative o wi

an unqualified "yes." The IRS witness gave the same

answer to a question about the loss of tax returns." If Mr.

Carroll’s Form 2553 was not lost in the mail by the United

States Postal Service, it seems virtually certain that the

form was lost at the service center by the IRS.

Mr. Carroll and his wife filed a joint federal income tax

return for 1987 in which they claimed a through loss

with to Volunteer Distribution Co. The claimed

loss, which was carried over to the Carrolls’ 1988 return,

was disallowed by the IRS on the ground that there had

been no election to have Volunteer treated as an S-

corporation in 1987. The disallowance resulted in the

finding of a tax deficiency for 1988.

Mr. and Mrs. Carroll filed a petition in the Tax Court

seeking a redetermination of the deficiency. The Tax

Court conducted a hearing, as noted above, and found that

the S-corporation election form had been mailed to the IRS

mailing Ag to March 16, 1987 (see Miller v. Unit

States, 784 F.2d 728 (6th Cir. 1986), and Surowka vy.

United States, 909 F.2d 148 (6th Cir. 1990), tax cases

rejecting the common law mailbox rule), the Tax Court

‘an in-house IRS study described in an article published in the

Washington Post on February 19, 1989, a IRS

loses about two million tax documents from its each year.

4 Carroll, et al. v. Commissioner No. 94-1938

concluded that the evidence was insufficient to — a

timely filing of the form. The Tax Court decided that

there was a deficiency of $22,479.25 in the Carrolls’ 1988

federal income tax, and the Carrolls have appealed that

decision to this court.

II

Prior to 1954, all documents mailed by a taxpayer to the

Internal Revenue Service were considered to have been

"filed" with the agency at the time of actual receipt. See

United States v. Lombardo, 241 U.S. 73, 76 (1916).

Federal courts routinely lied the common law

presumption that properly mailed documents would actually

be received in due course by the addressee, see Estate of

Wood v. Commissioner, 92 T.C. 793, 798-99 (1989) (en

banc), affd, 909 F.2d 1155 (8th Cir. 1990) (citing

numerous cases), but unless same-day delivery was in fact

the norm, receipt by the addressee was not deemed to have

occurred on the same day as the mailing. The presumption

seems to have been that the addressee would receive the

material after a normal interval -- two or three days, ¢.2.,

under current Postal Service norms.

Congress altered the actual-receipt rule with the

enactment of 26 U.S.C. §7502 in 1954. In §7502(a)

Congress said that a document mailed to the IRS on or

before a filing deadline and delivered by the Postal Service

after the deadline would be “deemed” to have been

received on the date of the postmark if the postmark itself

was not after the deadline. And for purposes of §7502,

Congress went on to say in §7502(c)(1)(A), a showing that

the document had been sent by registered mail would

constitute prima facie evidence of delivery to the IRS. The

date of registration -- again “[flor purposes of this

section” -- would be deemed the postmark date.

§7502(c)(1)(B).

The statute was silent as to what the result would be

where, as here, a taxpayer could prove that a document

addressed to the IRS been placed in the mails, with

postage attached, well before the filing deadline, but

App. 4

a ee

No. 94-1938 Carroll, et al. v. Commissioner 5

because of the subsequent loss of the document by the

government -- and use of the use of regular mail,

rather than registered or certified mail -- the taxpayer

could offer no direct proof that the document had been

postmarked on or before the filing deadline and had

actually been delivered to the IRS. Before the statute was

passed, as we have seen, the taxpayer could rely on the

common law presumption of delivery. Did the statute have

the effect of repealing the presumption in all cases other

than those where registered or certified mail was used?

proposition that 26 U.S.C. §7502 means that delivery of

il. The

in Wood offered unimpeachable proof of mailing, just as

the Carrolls did in the case at bar, but the IRS claimed that

the election form had never been received. The Wood

document was mailed on the Friday before a Monday filing

sun eed ‘fo mailing e fied that she mptl

been or mailing testi promptly

postmarked the envelope before placing it in a sack of

outgoing mail. This f that the was affixed on

Friday meant that aa would be deemed the date of

delivery, under 26 U.S.C. §7502(a), but only if the

document had actually been delivered by the Service

to the IRS. Because the petitioner had not used registered

mail, the prima facie evidence of delivery referred to in

§7502(c)(1) (i.e., Bape of registration) could not be

produced. The argued that §7502(c) was “the

exclusive means. of ing delivery,” but the Tax Court

rejected this argument concl that §7502(c) was

merely a “safe harbor." Wood, 92 T.C. at 797-98

(emphasis by the court).

"The provision for Congressionally sanctioned, assured

method of proof,” said the Tax Court in Wood, ". . . does

not in law or logic forbid any other method unless

Congress expressed intent to exclude other methods. No

App. 5

6 Carroll, et al. v. Commissioner No. 94-1938

such expression exists. There is no language in section

7502 or its legislative egoras he suggest that Congress

intended section 7502(c) to the only way to prove

delivery." Jd. at 798. Delivery could be shown under the

rule -- “well-settled” since the Supreme Court’s decision

in Rosenthal v. Walker, 111 U.S. 185 (1884) -- “that,

absent contrary proof of irregularity, proof of a properly

mailed document creates a presumption that the document

was delivered and was ‘actually received by the person to

whom it was addressed.’" Wood, 92 T.C. at 798, quoting

Hagner v. United States, 285 U.S. 427, 430 (1932)

(emphasis by the Wood court).

In affirming the Tax Court’s decision in Wood, the Court

of Appeals for the Eighth Circuit applied the familiar

principle that “[w]hen interpreting a statute, we must

consider the statute in light of judicial concepts [in this

case, the common law presumption of delivery] existing

before it. . . was enacted." F.2d at 1160. Congress

must be supposed to have known of the common law

presumption of delivery, the court said, and "[t]he normal

rule of statutory construction is that if Congress intends for

legislation to change the interpretation of a judicially

created concept, it makes that intent specific." Jd., quoting

Midlantic Nat'l Bank v. New Jersey Dep’t of Environmental

Proiection, 474 U.S. 494 (1986), as quoted in Stillians v.

State of lowa, 843 F.2d 276, 280 (8th Cir. 1988).

"[A]bsent a clear manifestation of contrary intent,” in other

words, “a newly-enacted or revised statute is presumed to

be harmonious with existing law... ." Wood, id.,

quoting Johnson v. First Nat’l Bank of Montevideo, 719 !

F.2d 270, 277 (8th Cir. 1983), cert. denied, 465 U.S. 1012

(1984). The common law presumption of delivery applied )

against the IRS before the enactment of §7502, and the

Eighth Circuit saw “no reason" why it should not continue

Fc apply against the IRS afterward. Wood, 909 F.2d at

As the Eighth Circuit recognized, the holding in Wood

probably cannot be reconciled with the holding of the Sixth

Circuit in Miller v. United States, 784 F.2d 728 (1986). In

App. 6

soi aeaeaeiameainiinaainaiaiiel

No. 94-1938 Carroll, et al. v. Commissioner 7

Miller, as in Wood, a taxpayer sought to invoke the

judicially-created Presumption that “material mailed is

material received." Miller, 784 F.2d at 730. As in Wood,

the plaintiff i in Miller maintained that §7502 was a "safe

harbor" that did not bar reliance on the judicially created

presumption. Jd. This court disagreed. Citing Deutsch v.

Commissioner of Internal Revenue, 599 F.2d 44, 46 (2d

Cir. 1979), cert. denied, 444 U.S. 1015 (1980), where the

Second Circuit construed §7502 as demonstrating “a

penchant for an easily og objective standard," the

Miller panel concluded "the only exceptions to the

physical delivery rule . . . are the two set out in section

7502 ...." Miller, 784 F.2d at 731 (emphasis supplied).”

In Wood the Eighth Circuit recognized the broad sweep

of Miller and Deutsch, but simply disagreed with the

holdings of those cases. "To the extent that the Sixth and

Second Circuits in Miller and Deutsch hold that a

presumption of delivery can never be used to satisfy the

requirement of delivery in section 7502(a)(1), we

disagree." Wood, 909 F.2d at 1159 (emphasis in original).

7in effect, the two statutory exceptions make the filing complete at

the time a mailing is postmarked, regardless of the time o actual

delivery, if (1) the IRS acknowledges receipt sf ths Godumiat with a

mark that is not later than the Tigo Redpath ny way ethene

is sent by registered mail, and the date of registration -- which is

equated by statute with the postmark date -— is not later than the filing

deadline.

Strictly speaking, of course, the taxpayers in the case at bar are not

contending that they come within a judicially created “exception” to the

rule that a filing is complete only at the time of actual delivery to the

IRS. The taxpayers contend, rather, that when they proved that their

S-corporation election form was mailed to the IRS 54 days in advance

of the filing deadline, they made a prima facie showing of timely

receipt — actual receipt, not constructive receipt -- by the agency.

Like the Eighth Circuit, we are satisfied that the contention is

inconsistent with Miller. See Surowka v. United States, 909 F.2d 148

(6th Cir. 1990), where Miller was interpreted as ruling out

“circumstantial proof" of timely filing where neither of the statutory

exceptions applied.

App. 7

8 Carroll, et al. v. Commissioner No. 94-1938

The Ninth Circuit has also disagreed with the Second and

Sixth Circuits on this ey In Anderson v. United States,

966 F.2d 487, 491 (9th Cir. 1992), the court expressed

itself as follows:

". . . we agree with the Eighth Circuit that enactment

of section 7502 did not displace the common law

presumption of delivery. The statute itself does not

reflect a clear intent by Congress to displace the

common law mailbox rule [under which proper and

timely mailing of a document raises a rebuttable

presumption that it is received by the addressee].

Both Miller and Surowka were cited in Anderson, but

neither was found to be persuasive.

Our court was invited, not long ago, to reconsider Miller

and Surowka in an en banc proceeding. The recent case of

BMC Bankcorp, Inc. v. United States, No. 94-5842 (6th

Cir. June 15, 1995), presented the question whether a

a who did not come within the terms of §7502 could

avail himself of the common law presumption that material

properly mailed to the IRS will, in the normal course of

time, be delivered. Refraining from any expression of

opinion as to the soundness of the Eighth and Ninth Circuit

decisions contrary to Miller and Surowka, a three-judge

panel concluded that the clear precedent in this circuit

required a negative answer. The taxpayer petitioned for

rehearing en banc, and the active members of the court

were polled on whether to grant the petition. A number of

judges voted in favor of merry | (it may come as no

surprise to the attentive reader that the author of the

present opinion was among them), but the number was less

than a majority. See order of October 10, 1995, denying

the petition. Unless the Supreme Court or Congress should

decide otherwise, therefore, Miller and Surowka will

remain good law in the Sixth Circuit.

Mr. and Mrs. Carroll argue that their situation is

different from that of the taxpayers in Miller and Surowka

because here there is “compelling” evidence, over and

above any common law presumption, that their Form 2553

App. 8

ee ee

No. 94-1938 Carroll, et al. v. Commissioner 9

was in fact received by the IRS. The evidence consists of

a preprinted address label supplied by the IRS for use on

Volunteer’s 1987 tax return. The label bears a new

employer identificatioa number, and the Carrolls contend

that the issuance of the new number proves that the S-

corporation election form was received by the IRS. In

support of this contention the Carrolls cite our Paes ae

opinion in Trimarco v. United States, No. 91-3453 (6th

Cir. February 18, 1992).

In Trimarco the taxpayer mailed the IRS a transmittal

letter accompanied, according to the letter, by both an S-

corporation election form and a form applying for an

employer identification number. The IRS subsequently

issued the employer identification number, and we inferred

from this that the taxpayer’s communication did not

miscarry in the mails.

The case at bar is different. Here the S-corporation

election form was not accompanied by a request for an

— identification number. Issuance of the number,

accordingly, does not prove receipt of the election form.

Unless the Carrolls can invoke the common lav mailbox

rule, with its non-statutory presumption of delivery, they

must lose their case.

If the Carrolls had been residents of any state other than

Tennessee, Kentucky, Ohio, Michigan, ecticut, New

York, or Vermont, the Tax Court would have allowed

them to invoke the presumption of delivery and would have

decided this case in their favor. Because the Carrolls live

in Tennessee, however, the presumption of delivery does

not work for them. . Having failed to use registered or

certified mail when they sent the Form 2553 to the IRS, the

Carrolls must pay an additional $22,479.25 in taxes.

AFFIRMED.

App. 9