James A. Rochelle - Page 28





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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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