David and Caryn Peterson - Page 6




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               prescribed for filing the document, (ii) that the delay                
               in receiving the document was due to a delay in the                    
               transmission of the mail, and (iii) the cause of such                  
               delay.                                                                 
               The validity of this regulation has been upheld.  See                  
          Lindemood v. Commissioner, 566 F.2d 646, 649 (9th Cir. 1977),               
          affg. T.C. Memo. 1975-195; Fishman v. Commissioner, 420 F.2d 491,           
          492 (2d Cir. 1970), affg. 51 T.C. 869 (1969).                               
               On the basis of the record presented, we conclude that                 
          petitioners cannot avail themselves of the timely mailing/timely            
          filing rule set forth in section 301.7502-1(c)(1)(iii)(b),                  
          Proced. & Admin. Regs.                                                      
               In general, the regulation requires that the petition be               
          delivered to the Court within the ordinary mailing time for that            
          class of mail.  Petitioners concede that the ordinary delivery              
          time for an item mailed from Bismark to Washington, D.C., is 3 to           
          5 days.  The petition in this case was delivered to the Court 15            
          days after it was allegedly mailed.  It follows that the petition           
          was not delivered to the Court within the ordinary mailing time.            
               Where a petition is mailed to the Court in an envelope                 
          bearing a private postage meter postmark, but the petition is not           
          delivered to the Court within the ordinary mailing time for that            
          class of mail, a taxpayer seeking to rely on the timely                     
          mailing/timely filing rule must establish that the petition was             
          actually deposited in the mail before the expiration of the 90-             
          day period, that the delay in receiving the petition was due to a           





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