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SWIFT, J., dissenting: I generally agree with the analysis
set forth in Judge Foley’s dissent and with his suggested
conclusion that the petition herein be treated as timely.
In this case, however, I would not conclude, as a matter of
law, that respondent’s failure to provide in the notice of
deficiency the specific due date for filing a Tax Court petition
automatically provides the taxpayer an unlimited period of time
to do so. Respondent’s failure to provide the due date should
extend the deadline for the filing of a Tax Court petition for a
reasonable period of time based on the facts and circumstances of
each case and based on the intent and conduct of the taxpayer.
In the current case there is no evidence of intentional
mischief by petitioner, and -– in the realities of the business
world -– 56 days (including weekends and holidays), particularly
in the absence of a due date provided by respondent, is but a
blink. Herein, I would conclude that the petition is timely.
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