On December 10, 2008, respondent sent petitioner a Final Notice of Intent to Levy and Notice of Your Right to a Hearing (final notice) for 1996-2000. On or about January 2, 2009, petitioner timely mailed a Form 12153, Request for a Collection Due Process or Equivalent Hearing. On the Form 12153 petitioner stated that he disagreed with the proposed levy because he owed no tax or penalty. Attached to the Form 12153 was a letter explaining petitioner's disagreement with the proposed levy.⁶ Petitioner denied receiving any notices regarding taxes due. Petitioner also stated in the letter that he had paid all income taxes due for 1996-2000 and that any claim for additional taxes, penalties, and interest was barred by the statute of limitations. Petitioner also stated that respondent had used an incorrect address for him even though he had provided his new address to respondent in various documents, including 2011 Tax Ct. Memo LEXIS 112">*119 the Federal income tax returns he had filed in 2003 and in later years.⁷

Petitioner's case was assigned to Settlement Officer Sheila D. Jenkins (Ms. Jenkins). On February 3, 2009, Ms. Jenkins wrote in her activity record that the case had been assigned for the assistance of an Appeals officer. Appeals Officer Maria A. Frazier (Ms. Frazier) reviewed the case and prepared a case memorandum. Ms. Frazier wrote in the memorandum that it was not clear whether petitioner had been notified of the assessments. She also stated that it was not clear whether any returns had been processed. On the basis of the entries with code 560, "Assessment Statute Expir. Date Extended to 03-12-2006", on petitioner's accounts, Ms. Frazier determined that petitioner had signed an extension agreement⁸ extending the period of limitations to March 12, 2006. She stated that "Since an extension was signed there had to be a statute of limitation that was triggered with either a filing of the return or an agreement of some kind" and concluded that the assessments 2011 Tax Ct. Memo LEXIS 112">*120 were timely.

On March 30, 2009, Ms. Jenkins sent petitioner a letter scheduling a telephone hearing for April 17, 2009. Ms. Jenkins advised petitioner that if he wanted to propose alternative collection methods, he should submit a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and/or Form 433-B, Collection Information Statement for Businesses, and supporting documents, including proof of 2008 estimated tax payments, and he should file all Federal income tax returns due. Ms. Jenkins also stated that respondent had investigated 2011 Tax Ct. Memo LEXIS 112">*121 the assessments of the additions to tax⁹ and determined that they were timely. Ms. Jenkins commented as follows: "The IRS does in fact, usually give persons notice of an assessment being made; however, the assessment can be made without notification as long as it is within the statute of limitations."

On April 1, 2009, Mr. Thornhill and Ms. Jenkins spoke on the telephone. Mr. Thornhill reiterated that petitioner did not recall executing an extension agreement. Mr. Thornhill requested a copy of all extension agreement documents that respondent believed petitioner had executed and a copy of any letter that respondent had allegedly sent petitioner regarding the assessments. Mr. Thornhill and Ms. Jenkins agreed to postpone the section 6330 telephone hearing until May 1, 2009.

The telephone hearing scheduled for May 1, 2009, was held as scheduled. During the hearing Mr. Thornhill reiterated petitioner's position that the assessments of the additions to tax under section 6651(f) were time barred and that petitioner had not received any notices from respondent 2011 Tax Ct. Memo LEXIS 112">*122 regarding the unpaid additions to tax. Ms. Jenkins advised Mr. Thornhill that petitioner's accounts had been referred to the Examination Division to determine the correctness of the assessments. She stated that in the process of that investigation respondent had determined that the assessments were timely because petitioner had extended the period of limitations on collection and assessment to March 12, 2006. Ms. Jenkins informed Mr. Thornhill that respondent had attempted without success to find the extension agreement that she maintained petitioner had signed. Ms. Jenkins advised Mr. Thornhill that the case would be reviewed further before a final determination.

On May 13, 2009, Mr. Thornhill and Ms. Jenkins held a followup telephone conversation regarding the existence of any extension agreement. On May 20, 2009, Ms. Jenkins and Mr. Thornhill held another telephone conference. Ms. Jenkins stated that the case had been reviewed by an Appeals officer and the assessed additions to tax would not be abated. Mr. Thornhill asked to speak with the Appeals team manager, Jean Fuentes (Ms. Fuentes).

On June 1, 2009, Ms. Fuentes conducted a conference with Mr. Thornhill. Ms. Fuentes explained 2011 Tax Ct. Memo LEXIS 112">*123 that the assessments dated March 12, 2006, were timely because petitioner had filed his returns on March 17, 2003.¹⁰ She also stated that because petitioner had failed to provide documents requested in the March 30, 2009, letter, no collection alternatives could be considered.

On June 23, 2009, respondent sent petitioner the notice of determination. In the notice of determination respondent stated that "Based upon the best available information, the requirements of various applicable law and administrative procedures have been met." Respondent stated that petitioner had failed to present a viable collection alternative and that the decision to proceed with collection by levy was appropriate. In the attachment to the notice of determination respondent concluded that petitioner had extended the period of limitations to March 12, 2006. The Appeals Office also determined that the February 28, 2006, assessments 2011 Tax Ct. Memo LEXIS 112">*124 were timely because petitioner had filed his returns on March 17, 2003.

Petitioner did not execute an extension agreement or any other document that extended the applicable period of limitations. Petitioner filed his returns for 1996-2000 no later than February 19, 2003, when the checks that were delivered with the 1996-2000 returns to the CID were credited to petitioner's 1996 and 1997 accounts.

Section 6331(a) authorizes the Secretary to levy upon property and property rights of a taxpayer liable for taxes who fails to pay those taxes within 10 days after notice and demand for payment is made. Section 6330(a) provides that no levy may be made on any property or rights to property of any person unless the Secretary has notified such person in writing of the right to a hearing before the levy is made. If the person requests a hearing, a hearing shall be held before an impartial officer or employee of the IRS Office of Appeals. Sec. 6330(b)(1), (3). At the hearing the person may raise any relevant issue, including appropriate spousal defenses, challenges to the appropriateness of the collection action, and collection alternatives. Sec. 6330(c)(2)(A). A taxpayer 2011 Tax Ct. Memo LEXIS 112">*125 may also contest the existence or amount of the underlying tax liability if he did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B); see also Sego v. Commissioner,114 T.C. 604">114 T.C. 604, 114 T.C. 604">609 (2000).

Following the hearing, the Appeals Office must determine whether the proposed levy action may proceed. The Appeals Office is required to take into consideration: (1) Verification presented by the Secretary that the requirements of applicable law and administrative procedure have been met, (2) relevant issues raised by the taxpayer, and (3) whether the proposed levy action appropriately balances the need for efficient collection of taxes with the taxpayer's concerns regarding the intrusiveness of the proposed levy action. Sec. 6330(c)(3).

Section 6330(d)(1) grants this Court jurisdiction to review the determination made by the Appeals Office in connection with the section 6330 hearing. Where the underlying liability is properly at issue, we review the taxpayer's liability de novo. See Goza v. Commissioner,114 T.C. 176">114 T.C. 176, 114 T.C. 176">181-182 (2000). We review all other determinations for abuse of discretion. Lunsford v. Commissioner,117 T.C. 183">117 T.C. 183, 117 T.C. 183">185 (2001); 2011 Tax Ct. Memo LEXIS 112">*126 114 T.C. 604">Sego v. Commissioner, supra at 610; 114 T.C. 176">Goza v. Commissioner, supra at 182. An abuse of discretion occurs if the Appeals Office exercises its discretion "arbitrarily, capriciously, or without sound basis in fact or law." Woodral v. Commissioner,112 T.C. 19">112 T.C. 19, 112 T.C. 19">23 (1999).

In his Form 12153 and during the hearing, petitioner questioned whether respondent had made the assessments within the applicable limitations period. The assertion by a taxpayer that the period of limitations has expired constitutes a challenge to the underlying tax liability. Hoffman v. Commissioner,119 T.C. 140">119 T.C. 140, 119 T.C. 140">145 (2002). The underlying liabilities are properly at issue because respondent did not issue notices of deficiency^{112011 Tax Ct. Memo LEXIS 112">*127} and petitioner had no opportunity to dispute the underlying tax liabilities. See sec. 6330(c)(2)(B). Accordingly, we review de novo the question of whether respondent made the assessments within the applicable period of limitations. See 114 T.C. 604">Sego v. Commissioner, supra at 609-610.

Generally, any reference in the Code to tax includes additions to tax, additional amounts, and penalties. See sec. 6665(b). Accordingly, we shall apply the limitations provisions of section 6501 to decide whether the section 6651(f) additions to tax were timely assessed. Section 6501(a) generally provides that the amount of any tax imposed by the Code shall be assessed within 2011 Tax Ct. Memo LEXIS 112">*128 3 years after the return was filed. In Bennett v. Commissioner,30 T.C. 114">30 T.C. 114, 30 T.C. 114">123-124 (1958), we held that the limitations period begins to run when the taxpayer files a delinquent nonfraudulent return after fraudulently failing to file a timely return.

The bar of the period of limitations is an affirmative defense, and the party raising the defense must specifically plead it and prove it. Rules 39, 142(a); 119 T.C. 140">Hoffman v. Commissioner, supra at 146. Petitioner pleaded the defense by claiming that the limitations period had expired before respondent assessed the additions to tax. To prove the defense successfully, the taxpayer must establish (1) the filing date of the returns and (2) that the Commissioner assessed the relevant amounts after the expiration of the 3-year period for assessment. See 119 T.C. 140">Hoffman v. Commissioner, supra at 146; Mecom v. Commissioner,101 T.C. 374">101 T.C. 374, 101 T.C. 374">382 (1993), affd. without published opinion 40 F.3d 385">40 F.3d 385 (5th Cir. 1994). If the taxpayer establishes a prima facie case that the applicable period of limitations has expired and that the Commissioner's assessment is barred, the burden of going forward with evidence shifts to the Commissioner. See 119 T.C. 140">Hoffman v. Commissioner, supra at 146; 2011 Tax Ct. Memo LEXIS 112">*129 101 T.C. 374">Mecom v. Commissioner, supra at 382. The Commissioner then must show that the assessment is not barred by the period of limitations under section 6501(a). 119 T.C. 140">Hoffman v. Commissioner, supra at 146; 101 T.C. 374">Mecom v. Commissioner, supra at 382. If the Commissioner makes such a showing, the burden of going forward with the evidence shifts back to the taxpayer. 119 T.C. 140">Hoffman v. Commissioner, supra at 146; 101 T.C. 374">Mecom v. Commissioner, supra at 383. Notwithstanding the shifting of the burden of going forward, the burden of ultimate persuasion remains with the party who pleads the bar of the period of limitations. 119 T.C. 140">Hoffman v. Commissioner, supra at 146-147.

The parties do not disagree about the assessment date, February 28, 2006. Instead, they disagree about the filing date of petitioner's delinquent 1996-2000 returns. Petitioner asserts that he filed his 1996-2000 returns no later than February 19, 2003, when the checks that were delivered with the returns were credited to his 1996 and 1997 accounts. He points to respondent's records; namely, uncertified transcripts of his income tax accounts that were admitted into evidence without objection, which confirm that respondent posted petitioner's 2011 Tax Ct. Memo LEXIS 112">*130 payments of his reported 1996-97 liabilities on February 19, 2003. Petitioner testified at trial that his counsel delivered the checks to pay petitioner's Federal income tax liabilities for 1996 and 1997¹² with original signed returns for each of the years 1996-2000 to the CID. Petitioner contends that this means that by February 19, 2003, at the latest, respondent had received the payments for 1996 and 1997 and the 1996-2000 returns and had processed the payments. Petitioner denies signing any extension agreements extending the period of limitations on assessment or any other documents that would have kept the 3-year limitations period open beyond February 19, 2006, and we accept his testimony on this point as credible.¹³

Respondent's position during the section 6330 hearing was different from that asserted during trial and on brief. 2011 Tax Ct. Memo LEXIS 112">*131 During the section 6330 hearing, respondent contended that the assessments were timely because petitioner executed an extension agreement extending the applicable period of limitations on assessment before the limitations period had expired as shown on IRS transcripts and because petitioner had filed the returns on March 17, 2003. At trial and on brief, however, respondent abandoned his argument that petitioner had executed an extension agreement extending the period of limitations on assessment and relied only on his contention that petitioner filed his returns on March 17, 2003, thereby making the assessment timely. Respondent relies on the transcripts of petitioner's 1996-2000 tax accounts showing entries with code 977, "Amended Return Filed", that are dated March 17, 2003, to support his contention.^{142011 Tax Ct. Memo LEXIS 112">*132} Respondent also relies on transcript entries showing that the February 19, 2003, payments were posted as "Advance Payment of Deficiency" rather than payments accompanying filed returns.¹⁵ Respondent therefore claims that the Appeals Office correctly determined the assessments were timely.

After reviewing the record, including petitioner's testimony, which we find credible, and respondent's transcript entries regarding the characterization and filing date of the returns, which we do not find credible, we find that petitioner's counsel delivered a package containing petitioner's fully executed original returns for 1996-2000 and checks to pay the 1996 and 1997 liabilities shown on the 1996 and 1997 returns to the CID no later than February 19, 2003. That finding, however, is not sufficient, standing alone, to permit us to conclude that the returns were properly filed. We must delve deeper.

Respondent 2011 Tax Ct. Memo LEXIS 112">*133 contends that simply delivering returns to an IRS office is not sufficient to constitute proper filing. Respondent relies upon section 6091 and related regulations to support his argument. In anticipation that we might find that petitioner's counsel delivered the returns and checks to the CID office handling petitioner's criminal investigation, respondent also relies on a line of cases holding that the delivery of a return to the wrong IRS representative or office is not a return filing and does not cause the applicable period of limitations on assessment to begin to run. Respondent explains that if the returns were not delivered to the correct IRS office and to an IRS employee with authority to accept returns for filing on or before February 19, 2003, the 3-year limitations period did not start to run on that date. Respondent also argues that delivery of returns to the CID was not a proper filing because special agents of the CID were not specifically authorized to accept returns for filing.

As discussed above, section 6501(a) provides that the amount of any tax imposed by the Code shall be assessed within 3 years after the return 2011 Tax Ct. Memo LEXIS 112">*134 was filed. Section 6501 does not define the word "filed", but under pertinent caselaw the general rule is that a return is filed when it is received.¹⁶United States v. Lombardo,241 U.S. 73">241 U.S. 73, 241 U.S. 73">76, 36 S. Ct. 508">36 S. Ct. 508, 60 L. Ed. 897">60 L. Ed. 897 (1916); Trout v. Commissioner,131 T.C. 239">131 T.C. 239, 131 T.C. 239">246 (2008). Generally, a limitations period "runs against the United States only when they assent and upon the conditions prescribed." Lucas v. Pilliod Lumber Co.,281 U.S. 245">281 U.S. 245, 281 U.S. 245">249, 50 S. Ct. 297">50 S. Ct. 297, 74 L. Ed. 829">74 L. Ed. 829, 1930-2 C.B. 396 (1930). For a taxpayer to secure the benefit of a limitations period bar, there must be "'meticulous compliance by the taxpayer with all named conditions.'" Winnett v. Commissioner,96 T.C. 802">96 T.C. 802, 96 T.C. 802">807-808 (1991) (quoting 281 U.S. 245">Lucas v. Pilliod Lumber Co., supra at 249). One such requirement is that a return be filed at the designated place of filing returns. See 96 T.C. 802">id. at 808.

Section 6091(a) provides that "When not otherwise provided for by this title, the Secretary shall by regulations prescribe the place for the filing of any return". Section 6091(b)(1)(A) provides generally that a person other than a corporation must make a return to the Secretary¹⁷ (i) in the internal revenue district of the taxpayer's 2011 Tax Ct. Memo LEXIS 112">*135 place of residence or (ii) at a service center serving such internal revenue district, as the Secretary may prescribe by regulations. Section 6091(b)(4) provides that, notwithstanding the above, a return to which section 6091(b)(1) would apply but for subsection (b)(4) that is made to the Secretary by hand carrying shall, under regulations prescribed by the Secretary, be made to the internal revenue district referred to in section 6091(b)(1)(A)(i).

As in effect for 2003, section 1.6091-1, Income Tax Regs., provides that with an exception not applicable here, an income tax return required under the Code or regulations shall be filed at the place for filing specified in the Code or, if no place is specified, the return shall be filed at the place prescribed by regulations. Section 1.6091-2(a)(1), Income Tax Regs., provides that income 2011 Tax Ct. Memo LEXIS 112">*136 tax returns of individuals shall be filed with the district director for the internal revenue district of the taxpayer's residence.¹⁸Section 1.6091-2(d)(1), Income Tax Regs., provides that returns of individual taxpayers that are filed by hand carrying "shall be filed with the district director (or with any person assigned the administrative supervision of an area, zone or local office constituting a permanent post of duty within the internal revenue district of such director) as provided in * * * [section 1.6091-2(a), Income Tax Regs.]." See also sec. 301.6091-1(b)(1), Proced. & Admin. Regs. A return is considered to be hand carried if it is brought to the district director by the person required to file the return or other document, or by his agent, such as the taxpayer's attorney or a member of the taxpayer's family. See sec. 301.6091-1(c), Proced. & Admin. Regs.

Although section 6091 and the regulations thereunder as in effect for 2011 Tax Ct. Memo LEXIS 112">*137 2003 authorized returns to be filed with the district director or his delegate, that direction had been rendered obsolete with the restructuring of the IRS pursuant to the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 1001(a), 112 Stat. 689. That act required the Commissioner to develop and implement a plan to reorganize the IRS. Id. The new organizational structure became effective on October 1, 2000. See I.R.S. News Release IR-2000-67 (Sept. 27, 2000). As a result of the reorganization, the IRS replaced the national, regional, and district structure with organizational units serving particular industries and groups of taxpayers with similar needs. See id. Despite these comprehensive organizational changes, in 2003 regulations under section 6091 continued to refer to officials whose positions had been eliminated and to offices that had been eliminated as a result of the reorganization, leaving taxpayers with little or no effective regulatory guidance regarding important requirements affecting their return filing obligations.^{192011 Tax Ct. Memo LEXIS 112">*138}

In early 2003 the Commissioner issued Notice 2003-19, 2003-1 C.B. 703 (2003 notice), advising taxpayers of the proper addresses for filing documents with the IRS, including "with respect to offices or officials that no longer exist as part of the reorganization." In the 2003 notice the Commissioner acknowledged that the Office of District Director was an outdated place of filing.

According to the 2003 notice, to file returns under section 6091, "Returns should be mailed to the address specified in the form or instructions."²⁰Notice 2003-19, 2003-1 C.B. 703. The 2003 notice also stated that "Hand-carried returns should be filed with the local Service office." Id. Section 6 of the 2003 notice titled "Obtaining Information for Location of Service Offices Where Elections, Statements, Returns, and Other Documents Can Be Filed By Personal Delivery" provides 2011 Tax Ct. Memo LEXIS 112">*139 that "Taxpayers required to file elections, statements, returns, and other documents who are permitted to file by personal delivery with a Service office may obtain information regarding the location of the nearest Service office by calling the Service's toll-free number". Id. at 711. The 2003 notice was effective for documents filed on or after April 7, 2003. See id.

It was not until September 16, 2004, that the Department of the Treasury amended section 1.6091-2, Income Tax Regs., to reflect the changes in the IRS 2011 Tax Ct. Memo LEXIS 112">*140 organizational structure and to explain how they affected the filing of returns. See T.D. 9156, 2004-2 C.B. 669. According to the preamble, "these final regulations replace obsolete references to IRS organizations and titles with updated references that are sufficiently flexible to take into account future changes to IRS structure or operations." Id. at 670. The preamble provided that the amended regulations specify the place of filing hand-carried²¹ returns in a manner consistent with the 2003 notice. See id. at 669. Section 1.6091-2(a)(1), Income Tax Regs., as amended by T.D. 9156, 2004-2 C.B. at 670, provides that individual income tax returns must be filed with "any person assigned the responsibility to receive returns at the local Internal Revenue Service office that serves the legal residence * * * of the person required to make the return." Section 1.6091-2(d)(1), Income Tax Regs., as amended by T.D. 9156, 2004-2 C.B. at 670, addresses returns filed by hand carrying and provides that "Returns of persons other than corporations which are filed by hand carrying shall be filed with any person assigned the responsibility to receive hand-carried returns in the local Internal Revenue 2011 Tax Ct. Memo LEXIS 112">*141 Service office".

Respondent contends that because the 2004 amendments to section 1.6091-2(d)(1), Income Tax Regs., made no substantive changes to the taxpayer's ability to file a return by hand carrying it to a local IRS office as stated in the preamble, see T.D. 9156, 2004-2 C.B. at 669, it is appropriate to treat amended section 1.6091-2, Income Tax Regs., as the relevant authority with respect to the issue of whether petitioner's counsel delivered the returns to the appropriate IRS employee. We disagree. There is no provision in T.D. 9156, 2004-2 C.B. at 669, that gives amended section 1.6091-2, Income Tax Regs., retroactive 2011 Tax Ct. Memo LEXIS 112">*142 effect, and respondent has cited no authority for the proposition that amended section 1.6091-2, Income Tax Regs., controls or should control the filing of an individual income tax return in 2003.

To summarize, in the first 3 months of 2003, the only relevant guidance to a taxpayer regarding the filing of his return was the guidance provided by section 6091, obsolete regulations, and any instructions for specific returns. The 2003 notice, which the IRS issued in early 2003 to temporarily fill the information gap created by the reorganization, was effective for documents filed after April 7, 2003, and did not apply to returns delivered to the IRS before the effective date. The amended regulations under section 6091 were not promulgated until 2004 and did not apply to returns filed in 2003.

The record does not establish exactly how or when petitioner's counsel delivered the package of returns and checks to the CID. In the normal case, such a gap in the record would dictate that the taxpayer, who has the burden of proof on the limitations issue, must lose. This is not the normal case, however.

Although the record is not clear regarding the details of the delivery of the tax return 2011 Tax Ct. Memo LEXIS 112">*143 package to the IRS, the record clearly establishes two important facts: (1) The tax return package was delivered to the IRS no later than February 19, 2003, and (2) the package was received by an IRS office that had the authority to process its contents. We know these facts because the income tax transcripts in the record confirm that the checks to pay petitioner's 1996 and 1997 tax liabilities as reported on petitioner's 1996 and 1997 returns were processed, deposited, and ultimately credited to petitioner's 1996 and 1997 accounts on February 19, 2003. Although the transcripts are less clear about the processing of the returns, the transcripts also show that returns of some kind were processed on March 17, 2003, as "Amended Return Filed". Because the only returns petitioner submitted to the IRS were his original delinquent returns, we assume for purposes of this analysis that the returns processed as amended returns were really petitioner's original returns. Respondent did not introduce any evidence to explain the "Amended Return Filed" entries on the transcripts or the lack of any entry with respect to the original returns.

As stated earlier, petitioner has the burden of proof regarding 2011 Tax Ct. Memo LEXIS 112">*144 the limitations issue and the initial burden of production. Petitioner carried his initial burden of production by introducing credible evidence that his attorney delivered a package containing his 1996-2000 original returns and checks to pay his 1996 and 1997 tax liabilities to the IRS and by introducing IRS transcripts confirming that the IRS had received the package and actually processed at least some of its contents. The earliest processing date, February 19, 2003, appearing on the transcripts gives rise to an inference that an IRS office with authority to receive and process the documents had received the returns and checks by that date. Consequently, the burden of producing evidence shifted to respondent.

Respondent called no witnesses and introduced no exhibits other than a few stipulated exhibits and certified transcripts with respect to the allegedly unpaid liabilities for each of the years 1996-2000 that are the subject of this proceeding. The transcripts contain substantially the same entries. One entry on each of the transcripts reflects that a fraud penalty was assessed on February 28, 2006. The rest of the entries are largely uninformative and require us to guess at their 2011 Tax Ct. Memo LEXIS 112">*145 meanings, e.g., "Claim Pend", "470 In Error", and "Litigation". The certified transcripts, which do not purport to be the type of income tax transcripts that would show the history of petitioner's income tax accounts for 1996-2000, contain no indication that petitioner filed original returns for 1996-2000, that the tax reported on the returns was assessed, or that payments of the reported tax were credited to petitioner's accounts. However, each of the transcripts contains the following entry: "NO NOTICES TO THE TAXPAYER CI IS WORKING THIS FRAUD CASE IRC 6651 F".

Respondent had the obligation to produce evidence that demonstrated petitioner did not effectively file his 1996-2000 return until March 2003. Respondent did not do so. The only evidence in the record regarding the receipt and processing of the package that petitioner's counsel delivered to the IRS is the evidence gleaned from IRS transcripts. Those transcripts establish that the package was received no later than February 19, 2003, when the payments of petitioner's 1996 and 1997 tax liabilities as reported on petitioner's original returns for those years by checks included in the package were posted to petitioner's accounts.

Ordinarily, 2011 Tax Ct. Memo LEXIS 112">*146 the Commissioner's failure to counter taxpayer's credible evidence would be fatal to the Commissioner's position. Respondent seeks to avoid such a result by contending that petitioner failed to meticulously comply with the filing requirements. Respondent relies on a line of cases to support his argument. See Helvering v. Campbell,139 F.2d 865">139 F.2d 865 (4th Cir. 1944), affg. a Memorandum Opinion of this Court; O'Bryan Bros. v. Commissioner,127 F.2d 645">127 F.2d 645 (6th Cir. 1942), affg. 42 B.T.A. 18">42 B.T.A. 18 (1940); W.H. Hill Co. v. Commissioner,64 F.2d 506">64 F.2d 506 (6th Cir. 1933), affg. 23 B.T.A. 605">23 B.T.A. 605 (1931); Winnett v. Commissioner,96 T.C. 802">96 T.C. 807-808; Espinoza v. Commissioner,78 T.C. 412">78 T.C. 412, 78 T.C. 412">413-414 (1982); Allnutt v. Commissioner,T.C. Memo 2002-311, affd. 523 F.3d 406">523 F.3d 406 (4th Cir. 2008); Friedmann v. Commissioner,T.C. Memo 2001-207, affd. 80 Fed. Appx. 285">80 Fed. Appx. 285 (3d Cir. 2003); Green v. Commissioner,T.C. Memo. 1993-152, affd. without published opinion 33 F.3d 1378">33 F.3d 1378 (5th Cir. 1994); Metals Refining Ltd. v. Commissioner,T.C. Memo. 1993-115; Harrod v. Commissioner,T.C. Memo. 1961-300; Kotovic v. Commissioner,T.C. Memo. 1959-177; Kraus v. United States,55 AFTR 2d 85-1116, at 85-1119, 85-1 USTC par. 9310, at 87,752-87,753 (E.D.N.Y. 1985);2011 Tax Ct. Memo LEXIS 112">*147 United States v. Dolmage,166 F. Supp. 202">166 F. Supp. 202 (D. Md. 1958); Levert v. United States, No. 94-1035, 1994 Bankr. LEXIS 1888 (Bankr. N.D. Ohio 1994).

Most of the cases on which respondent relies involved a situation where the taxpayer submitted returns to an IRS office and/or to an IRS employee contrary to the specific guidance set forth in section 6091 and related regulations. See, e.g., 96 T.C. 802">Winnett v. Commissioner, supra; 78 T.C. 412">Espinoza v. Commissioner, supra at 422; Allnutt v. Commissioner, supra; Friedmann v. Commissioner, supra; Metals Refining Ltd. v. Commissioner, supra.Each of the cases involved an attempted return filing that occurred when IRS districts headed by district directors were still in place. Consequently, the regulations under section 6091 in effect before 2004 offered effective guidance regarding the filing of returns. See, e.g., 78 T.C. 412">Espinoza v. Commissioner, supra at 422; Allnutt v. Commissioner, supra; Metals Refining Ltd. v. Commissioner, supra; Levert v. United States, supra. Some of the cases involved attempts by taxpayers to file returns with revenue agents who were handling their cases at a time when the courts concluded that delivering returns to a revenue agent did not constitute 2011 Tax Ct. Memo LEXIS 112">*148 filing of a return. See, e.g., 127 F.2d 645">O'Bryan Bros., Inc. v. Commissioner, supra at 647; Friedmann v. Commissioner, supra; Metals Refining Ltd. v. Commissioner, supra; Harrod v. Commissioner, supra; Kraus v. United States, 55 AFTR 2d at 85-1119, 85-1 USTC at 87,752-87,753. None of the cases respondent cites involved an attempt by the taxpayer to file executed original returns with payments, and none of the cases involved evidence that the payments made with the returns were actually processed by the IRS and credited to the taxpayer's account.

Some of the cases respondent cites address the taxpayer's intent to file a return. See, e.g., 78 T.C. 412">Espinoza v. Commissioner, supra at 422; Allnutt v. Commissioner, supra; Friedmann v. Commissioner, supra.The record supports a conclusion that petitioner clearly intended to file the returns when his counsel submitted them to the CID. The returns were accompanied by payment of petitioner's 1996 and 1997 Federal income tax liabilities and were filed at a time when the returns could have been used against petitioner in the criminal investigation.²² We believe that an inference that petitioner intended to file the returns by submitting them to the CID is warranted 2011 Tax Ct. Memo LEXIS 112">*149 on the record before us.

Respondent also attempts to convince us that the CID had no authority in 2003 to accept returns for filing. Respondent, relying on some of the cases cited above, contends that special agents of the CID, like revenue agents, had not been specifically delegated authority to accept returns for filing and that therefore the delivery of the package of the returns and the checks to the CID was not a proper filing.

We 2011 Tax Ct. Memo LEXIS 112">*150 cannot and need not draw such a conclusion on the facts of this case for several reasons. First, respondent did not prove that special agents had not been delegated authority to accept returns for filing in 2003. In fact, respondent did not introduce any evidence regarding the IRS employees who were authorized in 2003 to receive returns on behalf of the IRS. Second, the Commissioner has recognized in at least one instance that a specific delegation of authority to receive returns for filing is not necessary as long as a de facto delegation of authority exists. In 1999 the Commissioner's Office of Chief Counsel issued Chief Counsel Advice (CCA) 199933039 (Aug. 20, 1999). The CCA recognized a revenue officer's authority to receive delinquent returns for filing even though there was no specific delegation order permitting revenue officers to do so. See CCA 199933039 (Aug. 20, 1999). In the CCA the Office of Chief Counsel concluded that a delegation of authority may take many forms including functional statements in position descriptions. Id. Respondent did not introduce the position description of a special agent^{232011 Tax Ct. Memo LEXIS 112">*151} or any other evidence to support his arguments.

The third reason for rejecting respondent's argument is really a corollary of the second reason and relates to the general authority of the CID over criminal investigations of taxpayers and related civil matters. As noted previously, each of the plain-English transcripts in the record contains the following notation: "NO NOTICES TO THE TAXPAYER CI IS WORKING THIS FRAUD CASE IRC 6651 F". Respondent did not introduce any evidence to explain the entries. However, the IRM as in effect in 2003 contemplated that the CID could receive delinquent returns and was entitled to instruct IRS employees regarding the processing of delinquent returns and payments. Part 9.8 of the IRM described the control function of the Fraud Detection Center (FDC), whose primary responsibilities were to identify refund fraud and provide support for the Criminal Investigation field offices. See 5 Administration, IRM (CCH), pt. 9.8.1.2.2 (Jan. 29, 2002). The IRM stated that the FDC was to notify the CID field office when an IRS campus received amended or delinquent returns 2011 Tax Ct. Memo LEXIS 112">*152 for accounts under the control of the CID. See id.pt. 9.8.2.6(1) (July 29, 2002). The IRM also stated: "The FDC will process amended returns, delinquent returns, and advance payments submitted to the FDCfrom the CI field office for accounts under CI control based on instructions".²⁴ See id.pt. 9.8.2.6.1(1) (emphasis supplied).

We have found nothing in the Code or the regulations that would authorize the CID to prevent or delay the processing of delinquent original returns filed by a taxpayer during the pendency of a criminal tax investigation within its jurisdiction. The above-described IRM provisions, however, appear to acknowledge the ability of the CID to "control" cases under investigation and to provide "instructions" regarding 2011 Tax Ct. Memo LEXIS 112">*153 the processing of delinquent returns and payments. See, e.g., id.; id.pt. 9.8.2.6(2). Set against this background is evidence that original returns petitioner filed were not timely processed and that the processing of the returns was inexplicably characterized in the IRS' records as the processing of amended returns. These anomalies deserved an explanation, but none was forthcoming. Although respondent could have called a representative of the CID office that was responsible for the investigation of petitioner or other IRS employees to testify regarding the receipt and processing of petitioner's delinquent returns, respondent chose not to do so. Respondent's failure to introduce evidence within his control gives rise to an inference that the evidence would have been unfavorable. See Wichita Terminal Elevator Co. v. Commissioner,6 T.C. 1158">6 T.C. 1158, 6 T.C. 1158">1165 (1946), affd. 162 F.2d 513">162 F.2d 513 (10th Cir. 1947).

Moreover, we have held that if a taxpayer submits a return to a person who is not authorized to accept the return for filing and the return is then forwarded to the correct IRS office, the period of limitations commences when the office designated to receive the return actually receives it. See Winnett v. Commissioner,96 T.C. 802">96 T.C. 8082011 Tax Ct. Memo LEXIS 112">*154 (holding that for purposes of determining the beginning of the period of limitations a return is deemed filed when it is received by the "revenue office designated to receive such return"); Allnutt v. Commissioner,T.C. Memo 2002-311 (returns deemed filed when the District Director's office stamped them received). We have found that petitioner's counsel delivered the checks along with five returns to the CID of the IRS. The certified transcripts of petitioner's tax accounts show that the checks were processed as of February 19, 2003, and we therefore infer that the checks and returns were transmitted for processing through internal IRS channels. Accordingly, we also conclude that even if the returns were considered filed only when they were received for processing (as opposed to when they were delivered to the CID), such filing occurred on or before February 19, 2003.

For the foregoing reasons, we find that the package of tax returns and checks was received by an IRS office with authority to receive and process the contents of the package no later than February 19, 2003. We hold therefore that petitioner effectively filed his 1996-2000 returns no later than February 19, 2003. It follows 2011 Tax Ct. Memo LEXIS 112">*155 then that respondent's assessments of the section 6651(f) additions to tax on February 28, 2006, were not made within the applicable 3-year period of limitations, and we so find.

Because respondent did not timely assess the section 6651(f) additions to tax for 1996-2000, respondent is barred from collecting the underlying tax liabilities at issue here. We hold therefore that petitioner does not owe the underlying tax liabilities at issue, and we do not sustain respondent's proposed collection action. In the light of this holding, we do not need to address whether the Appeals Office abused its discretion in determining to proceed with the levy.

We have considered all of the arguments raised by either party, and to the extent not discussed above, we find them to be irrelevant or without merit.

To reflect the foregoing,

Decision will be entered for petitioner.