G. West Munz; Anne C. Munz, Petitioners-appellants, v. Commissioner Internal Revenue Service, Respondent-appellee, 972 F.2d 1341 (9th Cir. 1992)

MEMORANDUM^** 

G. West Munz and Anne C. Munz appeal pro se the tax court's decision affirming the Commissioner of Internal Revenue's ("CIR") determination of a deficiency and additions to tax for tax year 1983. The Munzs contend that the tax court erred by finding that the CIR mailed the notice of deficiency within three years of the Munzs' filing of their 1983 federal income tax return as required by 26 U.S.C. § 6501(a). We have jurisdiction pursuant to 26 U.S.C. § 7482(a) and affirm.

* Standard of Review

We review the tax court's finding of fact under the clearly erroneous standard. See King v. Commissioner, 857 F.2d 676, 678 (9th Cir. 1988).

II

Statute of Limitations

Generally, taxes must be assessed within three years from the date a return is "filed." See 26 U.S.C. § 6501(a); Edwards v. Commissioner, 680 F.2d 1268, 1269 (9th Cir. 1982). The three-year statute of limitations time period is suspended when the taxpayer is issued a statutory notice of deficiency by registered or certified mail. See 26 U.S.C. §§ 6503(a), 6212(a).

Here, the Munzs' 1983 tax return was received by the appropriate Internal Revenue Service ("IRS") District Office on June 17, 1985 and filed on June 20, 1985.¹  The Munzs contend that for purposes of the three-year statute of limitations period, their 1983 tax return should deemed filed on June 12, 1985, the date they claim to have mailed it to the CIR. This claim lacks merit. Pursuant to 26 U.S.C. § 7502(a), a taxpayer's return sent by domestic United States mail may be deemed to have been filed on the date of the postmark. See 26 U.S.C. § 7502(a). Section 7502(a), however, only applies to returns that are timely filed. See 26 U.S.C. § 7502(a) (2) (A) (i). Here, the record is clear--and the Munzs concede--that the return was filed late. Moreover, the Munzs stipulated as to the filing date of June 20, 1985. Given these circumstances, the tax court was not clearly erroneous in determining that the Munzs' 1983 tax return was filed on June 20, 1985.²  Accordingly, if the CIR sent the Munzs a notice of deficiency by certified mail on or before June 20, 1988, the CIR's assessment is not barred by the statute of limitations. See 26 U.S.C. §§ 6501(a), 6503(a) & 6212(a) (statute of limitations is suspended when a notice of deficiency is sent to taxpayers by registered or certified mail).

Here, the CIR offered probative evidence that the notice of deficiency had been sent on June 13, 1988. This evidence included a certified mail list and other documents indicating that the Munzs were sent a notice of deficiency by certified mail on June 13, 1988. In addition, IRS and Postal Service employees testified as to IRS and Postal Service procedures relating to the mailing of notices and identified the notations on the certified mail list indicating that the notices had been properly sent. Given this credible and probative evidence, the tax court was not clearly erroneous in finding that the notice of deficiency had been sent by certified mail to the Munzs on June 13, 1988. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 (1984). Moreover, none of the discrepancies in the procedure or in the list cited by the Munzs on appeal demonstrate that the tax court's finding as to the date was clearly erroneous. See United States v. Carter, 906 F.2d 1375, 1377 (9th Cir. 1990) (statute of limitations is an affirmative defense which the taxpayer bears the burden of pleading and proving); King, 857 F.2d at 681.

AFFIRMED.