Rodolfo Lizcano - Page 5




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               Petitioner, who at that time resided in McAllen, Texas,                
          filed timely a petition with this Court postmarked January 2,               
          2003.2  On February 20, 2003, respondent filed a motion to                  
          dismiss for failure to state a claim upon which relief can be               
          granted.  In response, the Court issued an order instructing                
          petitioner to file an amended petition, and informing both                  
          parties that a hearing would be held on respondent’s motion.                
               Petitioner filed a motion for extension of the time to file            
          his amended petition, which the Court granted.  Petitioner filed            
          an amended petition on March 13, 2003, and filed a second amended           
          petition on March 24, 2003.  All three of petitioner’s petitions            
          were devoid of any arguments regarding the dollar amount of the             
          deficiency.3  They focused solely on petitioner’s contentions               

               2Respondent mailed the notice of deficiency to petitioner on           
          Oct. 3, 2002.  The 90th day thereafter was Wednesday, Jan. 1,               
          2003, which was a legal holiday in the District of Columbia.  See           
          sec. 6213(a); Rule 25(b).  “When the last day prescribed under              
          authority of the internal revenue laws for performing any act               
          falls on * * * a legal holiday, the performance of such act shall           
          be considered timely if it is performed on the next succeeding              
          day which is not a * * * legal holiday.”  Sec. 7503.                        
               If a postage prepaid properly addressed petition is received           
          by the Court after the expiration of the 90-day period, it is               
          nevertheless deemed to be timely if the date of the U.S. Postal             
          Service postmark stamped on the envelope in which the petition              
          was mailed is within the time prescribed for filing.                        
          Sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs.  Petitioner           
          mailed his petition via the U.S. Postal Service, and it bears a             
          postmark of Jan. 2, 2003.  Accordingly, the petition is deemed              
          timely filed.  See sec. 7502(a).                                            
               3Petitioner did not assign error to respondent’s deficiency            
                                                             (continued...)           






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