- 9 -
would have had a significant impact on mail service during the
relevant period. In addition, petitioners assert that there was
a severe storm creating flooding conditions in the Washington,
D.C., area on November 8, 1996. Even were we to accept this
contention, it at most accounts for a delay in receipt from
Friday, November 8, until Tuesday or Wednesday, November 12 or
13, 1996. (Monday, November 11, 1996, was a Federal holiday.)
Finally, in his testimony, Mr. Boutris made the bald assertion
that there were "delivery problems" at the Meridian Branch of the
San Jose Post Office. This assertion was not corroborated, even
though Mr. Boutris testified that his secretary experienced the
same problems.
Because the foregoing evidence falls well short of that in
Rotenberry v. Commissioner, supra, we have no occasion to
consider whether we should adopt the Rotenberry standard in
applying section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
Suffice it to say that petitioners have failed to prove that the
delay in receipt was due to a delay in the transmission of the
mail and the cause therefor, even under the liberal Rotenberry
standard. In any event, Rotenberry v. Commissioner, supra, would
not be binding authority here because it is to the Court of
Appeals for the Ninth Circuit that appeal of this case lies. See
Hanna & Associates, P.C. v. Commissioner, T.C. Memo. 1997-376;
Little v. Commissioner, T.C. Memo. 1995-491; Oswald v.
Commissioner, T.C. Memo. 1995-17; Weinreich v. Commissioner, T.C.
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