Robert T. Lundy - Page 8

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               Turning our attention to the two remaining possibilities,              
          the date of actual mailing and the date stamped on the envelope             
          bearing the notice of deficiency, we observed:                              
                    Certainly in everyday parlance a postmark date is                 
               regarded as the date of mailing.  Normally if one is                   
               asked when a letter "is mailed," he will look to the                   
               postmark.  That is obviously what the petitioners did                  
               in this case.  They saw the date "Mar. 31, 1973" on the                
               envelope.  The best evidence of the postmark date is                   
               the postmark itself.  Without it, the next best                        
               evidence is the Commissioner's receipt for certified                   
               mail.  This will not place any additional burden on the                
               Internal Revenue Service.  If its receipt for certified                
               mail shows that more than 90 days has passed, the                      
               normal challenge to jurisdiction will be forthcoming.                  
               Only in cases where the postmark carries a later date                  
               can the petitioner successfully resist.  In no case                    
               will the Commissioner's certified mail procedure need                  
               to be changed.  [Id. at 100.]                                          
          Based upon the assumption that the date stamp appearing on the              
          envelope bearing the notice of deficiency constituted a postmark,           
          we concluded that the taxpayers could reasonably have relied on             
          that date in computing the 90-day period for filing their                   
          petition.  Because the petition was mailed within 90 days of                
          March 31, 1973, we denied the Commissioner's motion to dismiss              
          for lack of jurisdiction.3  To the same effect, see Sandor v.               
          Commissioner, T.C. Memo. 1992-643; Bill Wright Toyota, Inc. v.              
          Commissioner, T.C. Memo. 1992-344.                                          

          3  However, in Traxler v. Commissioner, 63 T.C. 534 (1975),                 
          we modified our earlier opinion, 61 T.C. 97 (1973), and granted             
          the Commissioner's motion to dismiss for lack of jurisdiction, in           
          light of evidence demonstrating that the date stamp in question             
          was a postal administrative control marking as opposed to a                 
          postmark.  See also Page v. Commissioner, T.C. Memo. 1994-180;              
          Toppin v. Commissioner, T.C. Memo. 1976-154.                                




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