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Section 7502(a)(1) provides that, in certain circumstances,
a timely mailed petition will be treated as though it were timely
filed. Section 7502(a)(2) provides that the timely
mailing/timely filing rule applies if the postmark date on an
envelope falls within the prescribed period or on or before the
prescribed date.
Petitioner did not challenge the validity of the notice of
deficiency. Our jurisdiction depends on whether the petition was
timely filed.
The petition was received and filed by this Court more than
90 days after the mailing of the notice of deficiency. As noted
above, the Court was experiencing delays in U.S. mail delivery
when the petition was mailed. Additionally, the postmark was
illegible by the time it was received by the Court because of the
irradiation treatment.
If the postmark is illegible, the taxpayer may offer
extrinsic evidence to establish what was or should have been the
actual date of the postmark. Sylvan v. Commissioner, 65 T.C.
548, 553 (1975); Molosh v. Commissioner, 45 T.C. 320, 322 (1965).
The taxpayer bears the burden of proving timely mailing. Sec.
301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.
Petitioner, through testimony, sought to establish that he
mailed his petition timely and that the postmark, although
illegible, was timely. See Mason v. Commissioner, 68 T.C. 354,
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Last modified: May 25, 2011