T.C. Memo. 2005-164
UNITED STATES TAX COURT
LEONARD AND L. MELNIK GROSSMAN, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8662-04. Filed July 5, 2005.
On Jan. 5, 2004, R issued a notice of deficiency to
petitioners. The envelope containing Ps’ petition was
postmarked by a private postage meter with a date of March
30, 2004. The envelope was properly addressed, but it was
received by the Court after the 90-day period for filing
prescribed by sec. 6213(a), I.R.C. R moved to dismiss this
case for lack of jurisdiction on the ground that Ps’
petition for redetermination was not timely filed. Secs.
6213(a), 7502(a) and (b), I.R.C. Ps contend that their
petition was timely filed because it was mailed in
accordance with the timely-mailing/timely-filing rule in
sec. 7502, I.R.C., and the regulations prescribed
thereunder.
Ps further contend that because they satisfied the
requirements of sec. 7491(a), I.R.C., the burden of proof
shifts to R on the issue of whether Ps’ petition was timely
filed. R argues that the plain language of sec. 7491(a)(1),
I.R.C., indicates it is not applicable to the issue of
whether Ps’ petition was timely filed. R argues, in the
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