Carnahan v. United States, TH 80-120-C.

• Decision Date: 04 February 1982
• Docket Number: No. TH 80-120-C.,TH 80-120-C.
• Citation: 532 F. Supp. 603
• Parties: Ruth M. CARNAHAN, Personal Representative of the Estate of Robert W. Carnahan, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Indiana

532 F. Supp. 603

Ruth M. CARNAHAN, Personal Representative of the Estate of Robert W. Carnahan, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. TH 80-120-C.

United States District Court, S. D. Indiana, Terre Haute Division.

February 4, 1982.

Sarah Evans Barker, U. S. Atty., Charles Goodloe, Jr., Asst. U. S. Atty., Indianapolis, Ind., John S. Miles, Trial Atty., Tax Division, Dept. of Justice, Washington, D. C., for defendant.

Jeffrey B. Kolb, Thomas S. Emison, Robert P. Doolittle, Jr., Emison, Emison, Doolittle & Kolb, Vincennes, Ind., for plaintiff.

MEMORANDUM ENTRY

BROOKS, District Judge.

The Plaintiff obtained an extension of time up to and including August 2, 1976, to file a federal estate tax return, form 706, and to pay federal estate tax. On July 29, 1976, Plaintiff mailed the federal estate tax return to the Internal Revenue Service (IRS). The return was received by the IRS on August 2, 1976. On Monday, July 30, 1979, the Commissioner of the IRS mailed a notice of deficiency for the above return to the Plaintiff which was received on August 1, 1979. On December 3, 1979, the Commissioner of the IRS assessed federal estate taxes against Plaintiff. The only issue raised by the Plaintiff's Motion to Dismiss and the Defendant's Motion for Summary Judgment is whether the statutory notice of deficiency was valid within the three (3) year statute of limitations, i.e. within three years of after the taxpayer's return was filed. Title 26, U.S.C., § 6501.

Title 26, U.S.C., § 6501 provides in relevant part:

The amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) ... and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.

Title 26, U.S.C., § 7502(a) provides in relevant part:

If any return ... required to be filed ... within a prescribed period or on or before a prescribed date ... is, after such period or date, delivered by United States postmark stamped on the cover in which such return ... is mailed shall be deemed to be the date of delivery ...

Plaintiff herein asserts that the mailing date (July 29, 1976) constitutes the filing date for purposes of determining the commencement of the period of limitations for assessing tax by virtue of Section 7502(a). The Defendant contends that the filing date was the date of receipt, August 2, 1976, the day the return was due and received by the IRS.

Generally the date of filing under Section 6501(a) is the date of delivery to the agency, i.e. the date of receipt by the IRS. Hotel Equities Corp. v. Commissioners, 65 T.C. 528 (1975) aff'd 546 F.2d 725 (7th Cir. 1976). This is true even if there has been an extension of time granted by the IRS for filing a return. Pace Oil Co. v. Commissioners, 73 T.C. 249 (1949). The provisions of Section 7502(a) which allow the filing date to be the date of mailing apply only when the return or other paper is mailed within the prescribed time period but not received by the IRS until after the due date. Hotel Equities Corp. v. Commissioners, supra; Pace Oil Co. v. Commissioner, supra. As stated in Pace Oil Co. v. Commissioners, supra at 253:

Clearly, if the petitioner's interpretation were correct, section 7502(a) would apply here. So construed, that section would also, as petitioner contends that it was intended to, establish a general rule that any return mailed during an extended period for filing is deemed to be delivered on the date of its mailing. We, however, do not agree

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