Joanne C. Austin - Page 9

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          Commissioner, 76 T.C. 963, 967-968 (1981); Estate of McGarity v.            
          Commissioner, 72 T.C. 253 (1979); Sylvan v. Commissioner, 65 T.C.           
          548, 551 (1975); Adkison v. Commissioner, T.C. Memo. 1992-411.              
          Like the presence of a U.S. Postal Service postmark, the date of            
          May 9, 2006, on the FedEx electronically generated label is                 
          legally conclusive, and petitioner cannot go behind that fact.              
               The result in this case is not changed by the label on the             
          FedEx envelope affixed and dated May 8, 2006, by petitioner.                
          Notice 97-26, 1997-1 C.B. at 414, provides as follows:                      
                    (2) If an item has a label generated and applied                  
               by a customer, the date marked on that label is treated                
               as the postmark date for purposes of � 7502 if the item                
               is received within the normal delivery time.  (Normal                  
               delivery time is one day for FedEx Priority Overnight                  
               and FedEx Standard Overnight, or two days for FedEx 2                  
               Day.)  If an item is not delivered within the normal                   
               delivery time, the person required to file the document                
               or to make the payment must establish (a) that the item                
               was actually either given to, or picked up by, a FedEx                 
               employee on or before the due date and (b) the cause of                
               the delay in delivery of the document or payment.                      
               These rules are similar to the rules for United States                 
               mail that has a postmark made other than by the United                 
               States Postal Service. (See Treas. Reg.                                
               � 301.7502-1(c)(1)(iii)(b).)[6]                                        
               The date on the label is May 9, 2006.  The petition was                
          delivered the next day on May 10, 2006, within the normal time              

               6  This second type of label presupposes software and/or               
          hardware provided by FedEx to its customer.  See Notice 97-26,              
          supra.  Petitioner has not even alleged either that she was                 
          provided with such software and/or hardware or that she prepared            
          the label using such software and/or hardware.  In addition, and            
          as previously stated, the FedEx USA Airbill, which is not the               
          type of label specified in Notice 97-26, supra, was prepared by             
          hand; this fact further strengthens our conclusion that the FedEx           
          electronically generated label was generated and affixed by a               
          FedEx employee and not by petitioner.                                       




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