Robert L. Smith Deborah Smith v. Commissioner Internal Revenue Service

81 F.3d 170 77 A.F.T.R.2d 96 -1512, 96-1 USTC P 50,232 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Robert L. SMITH; Deborah Smith, Petitioners-Appellants, v. COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 94-70891. United States Court of Appeals, Ninth Circuit. Submitted March 14, 1996. * Decided March 27, 1996. 1 Before: BEEZER and HAWKINS, Circuit Judges, and ZILLY, ** District Judge. 2 MEMORANDUM *** 3 Taxpayers appeal the Tax Court's decision that they are liable for a deficiency in income tax for the taxable year 1988 because they did not timely file Form 2553. We have jurisdiction pursuant to 26 U.S.C. § 7482 . We affirm. I. 4 Taxpayers presented testimony to the Tax Court that they mailed Form 2553 on May 29, 1989. The Commissioner presented evidence that Taxpayer's Form 2553 was never received. The Tax Court found taxpayer's evidence to be credible, yet found the form to be untimely filed because: (1) taxpayers did not present evidence of…