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meter postmark date on the envelope containing the petition is
October 25, 1996, the date that the petition was signed.
As indicated, on December 23, 1996, respondent filed a
Motion to Dismiss for Lack of Jurisdiction on the ground that the
petition was not filed within the 90-day period prescribed by
section 6213(a) or section 7502. Attached to respondent's motion
is a copy of Postal Service Form 3877, which shows that duplicate
notices of deficiency were mailed to petitioner on July 26, 1996.
On January 10, 1997, petitioner filed a reply to
respondent's motion asserting that the Commissioner bears the
burden of proving the date that a notice of deficiency is mailed.
Petitioner's reply further states:
When Petitioner actually received the notice the prison
was in a complete shut-down. Circumstances that
Petitioner could not control. As soon as possible,
Petitioner retained a lawyer for the purpose of
formulating a petition. The lawyer [formulated] the
petition and mailed it to the Petitioner for approval
and signature. Again, the mail was not delivered
timely and a lot of time was wasted, waiting on the
prison personnel. After reading the petition and
signing it, there was more delays in getting the
petition out of the prison and into the main stream of
postal items.
Respondent's motion was called for hearing in Washington,
D.C., on February 26, 1997. Counsel for respondent appeared at
the hearing and presented argument in support of respondent's
motion. Petitioner filed a Rule 50(c) statement with the Court
contesting the merits of respondent's determination.
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