You requested to know how the tax court would rule on the CPA making a sworn statement. Their are numerous cases on file dealing with late filing penalties. For the most part unless the taxpayer could prove the reason was due to gross negligence of the agent (CPA, return preparer....) the penalties stood.
Here is one where the taxpayer claimed the preparer assured that the extension was sent but the court ruled against the taxpayer based on their education level and their ultimate responsibility to file their return.
Even if you find a case that follows yours specifically, pursuant to Internal Revenue Code Section 7463(b), summary opinions may not be treated as precedent for any other case.
Would the tax court accept the sworn statement of the CPA, only the sitting judge on that day would be able to give the answer to that.
The tax court will base their ruling on the section 7502 that I referenced above which indicates that the date of filing is the date of the United States postmark stamped on the cover.
The statute specifically states that in the case of postmarks not made by the United States Postal Service - that section will not be applied - means the incoming IRS registration will be treated as the date of filing.
According to this section - any other supporting documents including a sworn affidavit by the CPA as a proof of timely filing will not be accepted.
In the part the IRS did not accept postmarks - and the Tax Court on several occasions ruled that postmarks should be accepted - that later resulted the law change - so we have the statute 7502.
Unless you will create a new precedent - most likely the Tax Court will not accept your position.
On the other hand as Robin stated above - you may ask the IRS to abate penalties.
Because the penalty is assessed to the client - only a client may request to abate the penalty.File a form 843 - http://www.irs.gov/pub/irs-pdf/f843.pdf to request the "accuracy related penalty" be abated based on the preparer's honest mistake.Here are instructions - http://www.irs.gov/pub/irs-pdf/i843.pdf
I am sorry if you expected a different answer.Let me know if you need any help.
My goal - to have you 100% satisfied.
Please feel free to ask for clarification if needed.
You replied - Disappointed response does not give probability of success for tax payer appeal Re: waiver of Penalties for something not caused by tax payer.
I may not evaluate the probability of success as that depends on many circumstances that we may not know. I may only express my opinion.
If you appeal based on the ground that your tax return extension was timely filed and do not have the postmark to support the date of filing - the probability of success in my opinion is zero.
If apply to abate late filing penalties based on negligence of your preparer - your chances to have late filing penalties waived are very high. Regardless - you still will be responsible for late payment penalties and interest charges.
Let me know if you need any clarification or help with other tax related issues.