Michael M. Dew - Page 7

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               The only remaining question is whether the petition was                
          filed within the 90-day period prescribed in section 6213(a).               
          The 90-day period for filing a timely petition with the Court               
          expired on Monday, May 4, 1998.  Petitioner contends that the               
          petition was mailed to the Court on April 29, 1998.  Although the           
          petition arrived at the Court in an envelope bearing a private              
          postage meter postmark date of April 29, 1998, that postmark is             
          not controlling for purposes of determining the date of mailing             
          because the envelope also bore a U.S. Postal Service postmark               
          date of May 8, 1998.  It is well settled that a private postage             
          meter postmark will be disregarded when it conflicts with a                 
          legible U.S. Postal Service postmark.  Malekzad v. Commissioner,            
          76 T.C. 963, 966-967 (1981); Gerl v. Commissioner, T.C. Memo.               
          1987-289; see sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin.               
          Regs.  Consistent with this rule, the date of mailing of the                
          petition is May 8, 1998--a date that falls beyond the 90-day                
          filing period prescribed in section 6213.  Because the petition             
          was not timely filed, we lack jurisdiction to redetermine                   
          petitioner's tax liability for 1993, and we shall grant                     
          respondent's motion to dismiss for lack of jurisdiction, as                 

          4  Although petitioner cannot pursue his case in this Court                 
          for the taxable year 1993, he is not without a remedy as to that            
          year.  In short, petitioner may pay the tax, file a claim for               
          refund with the Internal Revenue Service, and if the claim is               
          denied, sue for a refund in the Federal District Court or the               
          U.S. Court of Federal Claims.  See McCormick v. Commissioner, 55            
          T.C. 138, 142 (1970).  Further, although petitioner cannot pursue           
          his case in this docket (i.e., dkt. No. 8801-98) for the taxable            
          year 1994, he may pursue his case for that year in dkt. No.                 
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