- 6 -
the document is received after the time when a document
so mailed and so postmarked by the United States Post
Office would ordinarily be received, such document will
be treated as having been received at the time when a
document so mailed and so postmarked would ordinarily
be received, if the person who is required to file the
document establishes (i) that it was actually deposited
in the mail before the last collection of the mail from
the place of deposit which was postmarked (except for
the metered mail) by the United States Post Office on
or before the last date, or the last day of the period,
prescribed for filing the document, (ii) that the delay
in receiving the document was due to a delay in the
transmission of the mail, and (iii) the cause of such
delay. * * * [Emphasis added.]
The validity of this regulation has been upheld. Lindemood v.
Commissioner, 566 F.2d 646, 649 (9th Cir. 1977), affg. T.C. Memo.
1975-195; Fishman v. Commissioner, 420 F.2d 491, 492 (2d Cir.
1970), affg. 51 T.C. 869 (1969).
The notices of deficiency in the present case were mailed to
petitioner on November 30, 1994. Consequently, the 90-day period
for filing a timely petition with this Court expired on Tuesday,
February 28, 1995. Although the envelope in which the petition
was mailed to the Court bears a private postage meter postmark
date of February 27, 1995, the 89th day after the mailing of the
notices of deficiency, the envelope was not received by the Court
until March 9, 1995, 10 days after it was purportedly mailed.
Obviously, the petition was not received by the Court within the
normal mailing time between New York, New York, and Washington,
D.C., in respect of an item of first class mail. Consequently,
under section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,
petitioner must establish that: (1) The envelope bearing the
petition was actually deposited in the mail in a timely fashion,
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011