# Petition for Writ of Certiorari — Carroll v. Commissioner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1692%3A1. Public record. Not legal advice.