Ronald S. Raczkowski - Page 7




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               Second, electronic tracking information from UPS                       
          demonstrates that the “Express Pad Pak” containing the petition             
          was received by UPS at 3:40 p.m. on October 6, 2006, the 91st day           
          after the mailing of the notice of deficiency.                              
               If we assume, arguendo, that petitioner delivered the                  
          petition to Pak Mail Center, UPS’s authorized agent, “on the                
          evening of October 5, 2006”, but that the “Express Pad Pak” was             
          not acknowledged as received by UPS until 3:40 p.m. on October 6,           
          2006, we would still be constrained to grant respondent’s motion            
          and dismiss this case for lack of jurisdiction.3                            
               The timely mailing/timely filing rule of section 7502                  
          applies not only if the taxpayer sends a petition through the               
          United States mail but also if the taxpayer sends the petition              
          using a PDS designated by the Commissioner.  Insofar as UPS is              
          concerned, only UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd           
          Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and              
          UPS Worldwide Express have been designated by the Commissioner as           
          a PDS.  See sec. 7502(f); Notice 2004-83, 2004-2 C.B. 1030.  UPS            


               3  We should emphasize that there is no persuasive evidence            
          whatsoever that petitioner delivered the petition to UPS’s agent            
          “on the evening of October 5, 2006”.  Undoubtedly, petitioner               
          received a receipt from Pak Mail Center for the cost incurred in            
          having the “Express Mail Pac” delivered to the Court in                     
          Washington, D.C.; yet he tells us that “I do not have any                   
          documents which establish the above situation.”  We could infer,            
          therefore, that a receipt or similar documentation would be                 
          unfavorable to petitioner’s case.  See Wichita Terminal Elevator            
          Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513           
          (10th Cir. 1947).                                                           





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