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second condition, or to show the cause of the delay, the
third condition. See Beacham v. Commissioner, T.C. Memo.
1996-226; Gomez v. Commissioner, supra. We note that the
complete failure of proof on petitioner's part in regard
to the delay in the transmission of the mail makes this
case readily distinguishable on its facts from Rotenberry
v. Commissioner, 847 F.2d 229 (5th Cir. 1988), revg. and
remanding an unreported order of this Court, where the
Commissioner conceded that the delay in delivering the
taxpayer's petition to the Tax Court was occasioned by a
delay in the transmission of the mail, and the Court of
Appeals accepted the taxpayer's explanation of the cause
of that delay. At the hearing on respondent's motion,
petitioner's attorney conceded that petitioner did not have
proof regarding these conditions of the regulations. The
following discussion took place at the hearing:
THE COURT: Let me just ask you a question,
Mr. Daily. In your opening are you
conceding that Petitioner cannot make
the proof called for in regulation
Section 301.7502-1(c)(iii)(b), in-
asmuch as you do not claim to have
proof to show that the delay in
receiving the document was due to
a delay in the transmission of the
mail?
And that the cause of -- and that
you have no proof to show the cause
of delay?
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