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Postal Service postmark if the date is incorrect. However,
according to the U.S. Postal Service employee called by
respondent, this verification only occurs when the mail is
presented to a postal employee.
We need not decide, however, whether Mr. Boutris'
uncorroborated testimony as to the mailing date is sufficient
proof thereof because petitioners in any event have not satisfied
their burden of proof as to the last two conditions found under
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. Namely,
petitioners have failed to establish that the delay in receipt
was due to a delay in the transmission of the mail and the cause
therefor.
Petitioners cite Rotenberry v. Commissioner, 847 F.2d 229
(5th Cir. 1988), revg. and remanding an Order of this Court, in
support of their contention that they have adequately explained
the delay. In Rotenberry, the Court of Appeals for the Fifth
Circuit held that the taxpayer could meet his burden of proving
the cause of delay with proof of general reasons for delay in
mail delivery between the receiving station and the addressee,
without having to pinpoint the specific reason why the item of
mail in question was delayed. The petition at issue in
Rotenberry was mailed on December 23 and received 8 days later on
December 31, which this Court found to be longer that the
ordinary delivery time. The Court of Appeals noted that the
taxpayers had presented uncontroverted evidence of the following:
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