Gerry Dan and Kelly M. Langston - Page 4

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                  The petition in this case was mailed to this Court by                               
            ordinary mail, first class, but the parcel was neither certified                          
            nor registered.  The mailing cover or envelope was properly                               
            addressed to the Court and bears a postmark by the Postal Service                         
            that is not legible.  The envelope, however, bears two rubber-                            
            stamped notations that state:  "Found in supposedly empty                                 
            equipment."  At the hearing on the motion, an employee of the                             
            Postal Service acknowledged that the two rubber-stamped notations                         
            were those of the Postal Service, and the message on these                                
            notations could account for the delay in the delivery of the                              
            petition to the Tax Court.  Based on this testimony, the Court                            
            concludes that the delay in delivery of the petition to this                              
            Court was due to a delay in the transmission of the mail, and                             
            that the cause of such delay was the Postal Service.  In the                              
            absence of the envelope's having been misplaced or left in the                            
            empty equipment of the Postal Service, the Court is satisfied                             
            that the petition would have been delivered to the Court in the                           
            normal period of time for a parcel mailed from Tulsa, Oklahoma,                           
            to Washington, D.C.                                                                       
                  As noted above, in order for petitioners to rely on the                             
            timely mailing, timely filing provisions of section 7502(a) where                         
            the postmark is illegible, they must prove the date the postmark                          
            was made.  See Berry v. Commissioner, T.C. Memo. 1994-224.                                

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