Mark Ernest and Esther Rubke - Page 7




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          have not established that their petition was received no later              
          than the time ordinarily required for the delivery of a petition            
          postmarked at the same point of origin by the U.S. Post Office on           
          the last day for its filing.7  Accordingly, petitioners’ petition           
          will be deemed untimely unless they can establish that the                  
          petition was actually deposited in the mail on or before August             
          1, 2001, that the delay in delivery was attributable to delay in            
          the transmission of the mail, and the cause of the delay.                   




               6(...continued)                                                        
          normal delivery time for mail sent from Oakland, California, to             
          Washington, D.C.  We sustained petitioners’ hearsay objection to            
          the declaration.                                                            
               7We note that case law indicates that a 9-day delivery time            
          has not historically been within the normal mailing period for              
          mail sent from Oakland, California to Washington, D.C.  See,                
          e.g., Lindemood v. Commissioner, 566 F.2d 646, 647 (9th Cir.                
          1977) (normal delivery time from San Francisco, California, to              
          Washington, D.C., is 3 days for first class mail), affg. per                
          curiam T.C. Memo. 1975-195; Kirschenbaum v. Commissioner, T.C.              
          Memo. 2001-102 (normal delivery time from Tarzana, California, to           
          Washington, D.C., is 3-5 days); Fujioka v. Commissioner, T.C.               
          Memo. 1999-316 (citing Lindemood v. Commissioner, supra, for                
          proposition that normal delivery time from San Francisco,                   
          California, to Washington, D.C., is approximately 3 days); Chang            
          v. Commissioner, T.C. Memo. 1998-298 (normal delivery time from             
          San Jose, California, to Washington, D.C., is 3 days for first              
          class mail and 5-7 days for third class mail); Koenig v.                    
          Commissioner, T.C. Memo. 1998-215 (document received 8 days after           
          postage meter date exceeded normal mailing time when mailed from            
          Santa Cruz, California, to Washington, D.C.), affd. without                 
          published opinion 221 F.3d 1348 (9th Cir. 2000); Gomez v.                   
          Commissioner, T.C. Memo. 1996-561 (normal delivery time from Los            
          Angeles, California, to Washington, D.C., is 3 days); Berdell v.            
          Commissioner, T.C. Memo. 1991-529 (parties agreed that normal               
          mailing time from California to Washington, D.C., was 3 days).              





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