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and August 26, 2004, in which the U.S. Postal Service accepted
responsibility for delaying the transmittal of the piece of mail
at issue from May 13, 2004, until it was delivered on May 25,
2004. Since May 13, 2004, was after the 90-day filing period had
expired, respondent reasons that petitioners have failed to show,
as required by section 301.7502-1(c)(1)(iii)(B)(2)(ii) and (iii),
Proced. & Admin. Regs., that the delay from April 5 until May 13,
2004, was caused by the U.S. Postal Service’s mistake. We
disagree with respondent’s analysis. In the August 26, 2004,
letter, the author stated: “we can only presume” (emphasis added)
that the envelope containing petitioners’ petition could not have
entered the U.S. mail system earlier than May 12, 2004. Mr. Wong
testified that this presumption was likely made on the basis of
the standard delivery time for a piece of mail sent from Hazlet,
New Jersey, to Clarksburg, New Jersey. A presumption is indeed
not a fact. Mr. Wong testified to the effect that on the basis
of the information available to the U.S. Postal Service it is
impossible to identify the actual mailing date of the piece of
mail in question. The author of the August 26, 2004, letter,
moreover, did not testify at trial, and we shall not speculate on
the basis of his presumption. Mr. Wong’s testimony, Ms. Bucco’s
testimony and affidavit submitted to the Court, and the letter
issued by the U.S. Postal Service taking partial responsibility
for missending and incorrect scanning, all lead us to conclude
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