Lewis

MEMORANDUM OF OPINION AND ORDER

This ease presents the curious question of what proof of timely postmark may be offered by a taxpayer when the Internal Revenue Service (IRS) receives a filing several days after the due date, by first class mail, and does not keep the envelope. According to the IRS, the only proof admissible is “direct” evidence of a timely postmark as opposed to proof of timely mailing from which a timely postmark might be inferred.

Frank Lewis alleges that on April 15,1993, he timely mailed his application for an automatic extension for filing the Lewises’ 1992 tax return. The Internal Revenue Service claims it did not receive the form until April 26,1993, eleven days after it was due. After the IRS assessed and collected the late penalty, the Lewises filed this refund suit, contending that the application for extension of time to file was timely under 26 U.S.C. § 7502 (a), which provides that a timely postmark establishes timely filing. The United States now moves for summary judgment, arguing that the Lewises cannot prove a timely postmark because they have no “direct” evidence of postmark.

I.

Frank Lewis claims that he mailed the Lewis’ “Application for…