John B. Markham - Page 4

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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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