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1996. Therefore, petitioner satisfies the first element of
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
However, respondent argues that petitioner does not satisfy the
second element of this section because a properly addressed
envelope "mailed by regular mail from the Boca Raton area and
bearing a United States postmark with a date of August 20, 1996
would have ordinarily been received on August 23, 1996 at the Tax
Court." Since the petition was not filed until August 26, 1996,
respondent concludes that it was not timely.
Respondent misinterprets the requirement of section
301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. The regulation
clearly states that the ordinary period of time it takes for
delivery starts on the last day prescribed for filing, not, as
respondent contends, the date indicated on the privately metered
postmark.
The last day for filing the petition was August 22, 1996.
For purposes of deciding this motion, we accept respondent's
allegation that the ordinary delivery period for properly
addressed regular mail from the Boca Raton area to the Tax Court
is approximately 3 days.4 Therefore, had the petition been
4Whether the petition was received by the Tax Court within
the time that a document mailed on the 90th day would have
ordinarily been received is purely a factual question. Stotter
v. Commissioner, 69 T.C. 896, 898 (1978). Although we apply
respondent's allegation of ordinary delivery time for purposes of
this case, we make no independent finding of fact regarding this
(continued...)
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