Gerry Dan and Kelly M. Langston - Page 3

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           regulations thereunder.  Petitioners contend their petition was                            
           timely filed, by mail, on September 12, 1996.                                              
                  A petition for redetermination of a deficiency must                                 
           generally be filed with this Court within 90 days after the                                
           notice of deficiency is mailed to the taxpayer.  Sec. 6213(a).                             
           If a taxpayer fails to file within the statutory period, the                               
           petition must be dismissed for lack of jurisdiction.  Sylvan v.                            
           Commissioner, 65 T.C. 548, 549-550 (1975).                                                 
                  If a petition is received after the 90-day period, the                              
           petition is deemed filed when mailed if the requirements of                                
           section 7502 are satisfied.  Stotter v. Commissioner, 69 T.C.                              
           896, 897 (1978).  Under section 7502(a), if the envelope                                   
           containing the petition bears a postmark made by the U.S. Postal                           
           Service (Postal Service), if the date of such postmark falls                               
           within the 90-day period, and if the other requirements of                                 
           section 7502 are satisfied, then the otherwise untimely petition                           
           will be deemed timely filed.  Stotter v. Commissioner, supra.                              
           When there is an illegible postmark or the postmark was                                    
           inadvertently left off, a taxpayer may submit evidence to show                             
           that, in fact, the petition was timely mailed.  Sylvan v.                                  
           Commissioner, supra at 553.  To obtain the benefits of section                             
           7502, a taxpayer has the burden of proof to establish timely                               
           mailing.  Sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.;                           
           Mason v. Commissioner, 68 T.C. 354, 356-357 (1977).                                        

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