Mark Ernest and Esther Rubke - Page 6




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          mail sent from Oakland, California, to Washington, D.C.  See                
          Stotter v. Commissioner, 69 T.C. 896, 898 (1978); Fishman v.                
          Commissioner, supra at 873 (1969);  Chang v. Commissioner, T.C.             
          Memo. 1998-298; Castro v. Commissioner, T.C. Memo. 1994-530.5               
               Petitioners claim that they relied on statements in the                
          notice of deficiency that a petition will be considered timely              
          filed if the postmark date on the envelope containing the                   
          petition falls within the prescribed 90-day period.  Petitioners            
          contend that they mailed their petition on August 1, 2001, and              
          that certified mail takes longer to deliver than regular mail.              
               Petitioners introduced no evidence to establish the normal             
          delivery time for mail sent from Oakland, California, to                    
          Washington, D.C.  They have not produced evidence in support of             
          their contention that certified mail takes longer to deliver than           
          noncertified mail or otherwise demonstrated that a 9-day delivery           
          time is within the normal mailing period.6  Thus, petitioners               

               5In certain circumstances, if the taxpayer introduces                  
          credible evidence with respect to any factual issue relevant to             
          ascertaining the proper tax liability, sec. 7491 places the                 
          burden of proof on respondent.  Sec. 7491(a); Rule 142(a)(2).               
          Sec. 7491 is effective with respect to court proceedings arising            
          in connection with examinations commencing after July 22, 1998.             
          Internal Revenue Service Restructuring and Reform Act of 1998,              
          Pub. L. 105-206, sec. 3001(c)(2), 112 Stat. 726.  Petitioners do            
          not contend, nor is there evidence, that their examination                  
          commenced after July 22, 1998, or that sec. 7491 applies in this            
          case.                                                                       
               6At the hearing, respondent attempted to introduce into                
          evidence a declaration from a U.S. postal employee as to the                
                                                             (continued...)           





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