Leonard and L. Melnik Grossman - Page 14

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          and August 26, 2004, in which the U.S. Postal Service accepted              
          responsibility for delaying the transmittal of the piece of mail            
          at issue from May 13, 2004, until it was delivered on May 25,               
          2004.  Since May 13, 2004, was after the 90-day filing period had           
          expired, respondent reasons that petitioners have failed to show,           
          as required by section 301.7502-1(c)(1)(iii)(B)(2)(ii) and (iii),           
          Proced. & Admin. Regs., that the delay from April 5 until May 13,           
          2004, was caused by the U.S. Postal Service’s mistake.  We                  
          disagree with respondent’s analysis.  In the August 26, 2004,               
          letter, the author stated: “we can only presume” (emphasis added)           
          that the envelope containing petitioners’ petition could not have           
          entered the U.S. mail system earlier than May 12, 2004.  Mr. Wong           
          testified that this presumption was likely made on the basis of             
          the standard delivery time for a piece of mail sent from Hazlet,            
          New Jersey, to Clarksburg, New Jersey.  A presumption is indeed             
          not a fact.  Mr. Wong testified to the effect that on the basis             
          of the information available to the U.S. Postal Service it is               
          impossible to identify the actual mailing date of the piece of              
          mail in question.  The author of the August 26, 2004, letter,               
          moreover, did not testify at trial, and we shall not speculate on           
          the basis of his presumption.  Mr. Wong’s testimony, Ms. Bucco’s            
          testimony and affidavit submitted to the Court, and the letter              
          issued by the U.S. Postal Service taking partial responsibility             
          for missending and incorrect scanning, all lead us to conclude              






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