                        T.C. Memo. 2000-147



                     UNITED STATES TAX COURT



                  DEBRA J. HORD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6386-99.                      Filed April 24, 2000.


     Sallie W. Gladney and Teresa J. Womack, for petitioner.

     John D. Faucher and Gordon P. Sanz, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction.

Respondent contends that petitioner failed to file a timely
                               - 2 -

petition within the 90-day period prescribed in section 6213(a).1

On October 25, 1999, the Court heard evidence and argument on

respondent’s motion.

Background

     Respondent determined a deficiency of $9,867 in Federal

income tax due from petitioner for taxable year 1996.    Respondent

mailed to petitioner a statutory notice of deficiency, which

shows on its face the date December 29, 1998.    The notice of

deficiency was mailed to petitioner’s residence in Pearland,

Texas.

     On April 5, 1999, petitioner filed a petition for

redetermination with the Court.2    Attached to the petition was a

copy of the notice of deficiency.    The petition arrived at the

Court in an envelope bearing a private postage meter mark showing

a date of March 29, 1999.   The private postage meter mark was

canceled by a larger U.S. Postal Service mark, clearly showing

the month and year as “MAR 1999”.    The day of the month, however,

is only partially printed and appears as the open-looped bottoms

of two digits, which respondent contends signify the number “30”.

The envelope has attached to it a U.S. Postal Service “CERTIFIED



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
     2
       When the petition was filed, petitioner resided in
Pearland, Texas.
                              - 3 -

MAIL” sticker, bearing a certified mail number.    The sender’s

receipt has been removed at the perforation.    Petitioner claims,

however, not to have received a sender’s receipt.

Discussion

     If the notice of deficiency was mailed to petitioner on

December 29, 1998, as respondent contends, then the 90-day period

prescribed by section 6213(a) for filing a petition with the

Court expired on Monday, March 29, 1999, which was not a legal

holiday in the District of Columbia.    Respondent contends that

the petition was not postmarked until March 30, 1999, and that

therefore this Court lacks jurisdiction.    See sec. 7502(a); Rule

13(a).

     In opposing respondent’s motion to dismiss for lack of

jurisdiction, petitioner argues first that respondent has failed

to prove that the notice of deficiency was mailed on or before

December 29, 1998, and that therefore the petition was timely,

even if postmarked March 30, 1999.    From the evidence in the

record, however, we are satisfied that respondent mailed the

notice of deficiency to petitioner on December 29, 1998.    The

record includes a copy of the notice of deficiency, dated

December 29, 1998, that was mailed to and received by petitioner,

as well as a copy of U.S. Postal Service Form 3877 (Form 3877),

which is postmarked December 29, 1998.    The Form 3877 states

along the top that “NOTICES OF DEFICIENCY FOR THE YEARS INDICATED
                               - 4 -

HAVE BEEN SENT TO THE FOLLOWING TAXPAYERS”.   Petitioner’s name

and address appear on line 4, with a notation indicating that the

notice of deficiency was for taxable year 1996.   The Form 3877

bears the typewritten legend “CERTIFIED A TRUE AND CORRECT COPY

OF THE ORIGINAL ON FILE IN THE DISTRICT OFFICE OF THE INTERNAL

REVENUE SERVICE OF HOUSTON, TEXAS”, signed by an individual

identified as “Chief, Examination Support & Processing Branch”,

and dated April 19, 1999.   The names and addresses of 12 other

taxpayers have been redacted from the Form 3877 in the record.3

     Petitioner has not rebutted this probative evidence that

respondent mailed the notice of deficiency on December 29, 1998.

For instance, petitioner did not produce the envelope in which


     3
        At the hearing, petitioner’s counsel initially stated
that she had “No objection” to the admission of the Form 3877
into evidence but then expressed a concern that respondent had
not produced a witness to “support” it. After legal arguments,
during which respondent’s counsel offered to produce a foundation
witness if necessary, respondent’s counsel again moved to have
the document admitted into evidence, and petitioner’s counsel
again stated, in response to the Court’s inquiry, that she had
“No objections”. On brief, petitioner objects to the admission
of the Form 3877 into evidence, arguing for the first time that
because of the redactions it is “not in its original condition”,
and arguing that respondent failed to lay a proper foundation or
prove authenticity. Because petitioner’s counsel expressly
waived any objection at the hearing and on the record,
petitioner’s objections on brief are untimely and therefore also
treated as waived. See Fed. R. Evid. 103(a)(1) (requiring that
“a timely objection or motion to strike [appear] of record”);
United States v. Kreimer, 609 F.2d 126, 133 (5th Cir. 1980);
Halle v. Commissioner, T.C. Memo. 1996-116. To hold otherwise at
this late stage of the proceeding would be grossly unfair to
respondent, who had offered at the hearing to take corrective
measures to overcome any objection. See Advisory Committee’s
Note to Fed. R. Evid. 103, 56 F.R.D. 183, 195 (1973);
see also United States v. Kreimer, supra at 133.
                                - 5 -

she received from respondent the notice of deficiency.     Cf.

Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158

(1946), affd. 162 F.2d 513 (10th Cir. 1947).    In the absence of

contrary evidence, we conclude and hold that respondent has

proved that the notice of deficiency was mailed on December 29,

1998.    Cf. United States v. Zolla, 724 F.2d 808, 810 (9th Cir.

1984); United States v. Ahrens, 530 F.2d 781, 784 (8th Cir.

1976); Coleman v. Commissioner, 94 T.C. 82, 90-91 (1990).

     Relying on section 7502(a), petitioner argues that even if

the notice of deficiency was mailed on December 29, 1998, the

petition was timely filed on March 29, 1999.

     Under section 7502(a)(1), if a petition is delivered to the

Court by U.S. mail after the expiration of the 90-day deadline,

the date of the “United States postmark stamped on the cover” in

which the petition was mailed is deemed to be the date of

delivery.4   For this purpose, any private postage meter mark is

disregarded.    See Malekzad v. Commissioner 76 T.C. 963, 967

(1981).    If the U.S. postmark is illegible or has been


     4
       Sec. 7502(c)(2) authorizes the Secretary to promulgate by
regulation the extent to which the use of certified mail shall
constitute prima facie evidence of delivery and the manner in
which the postmark date will be determined. The applicable
regulations provide in relevant part:

     If the document is sent by United States certified mail and
     the sender’s receipt is postmarked by the postal employee to
     whom such document is presented, the date of the United
     States postmark on such receipt shall be treated as the
     postmark date of the document. [Sec. 301.7502-1(c)(2),
     Proced. & Admin. Regs.]
                                - 6 -

inadvertently omitted, the taxpayer may offer extrinsic evidence

to establish what was or should have been the actual date of the

U.S. postmark.   See Sylvan v. Commissioner, 65 T.C. 548 (1975)

(omitted postmark); Molosh v. Commissioner, 45 T.C. 320 (1965)

(illegible postmark).    The same evidence is relevant in either

case.   See Sylvan v. Commissioner, supra at 554.   In either case,

to obtain the benefits of section 7502, the taxpayer bears the

burden of proving timely mailing.    See Langston v. Commissioner,

T.C. Memo. 1997-303; see also sec. 301.7502-1(c)(1)(iii)(a),

Proced. & Admin. Regs.

     Relying on provisions of the U.S. Postal Service Postal

Operations Manual and citing Traxler v. Commissioner, 61 T.C. 97

(1973), modified 63 T.C. 534 (1975), petitioner argues that the

markings in question do not constitute a U.S. postmark but that

in any event, the date is illegible.

     On the basis of the evidence in the record, we believe that

the markings in question do constitute a U.S. postmark and that

the date appearing therein is March 30, 1999.   The manager of

distribution operations at a U.S. Postal Service mail processing

facility in Houston, Texas, testified that the envelope in which

the petition was mailed did bear a U.S. postmark and that,
                                   - 7 -

although the top portions of the digits in question are

indecipherable, he was certain that the postmark date was “30 MAR

1999”.5

     Even if we were to assume, however, that the envelope in

question bears no U.S. postmark or that the date of the postmark

is illegible, petitioner has nevertheless failed to carry her

burden of proving that the petition was timely filed.       The

private postage meter mark shows at most that the envelope might

have been prepared for mailing on March 29, 1999, not that it was

actually mailed that day.       The only other evidence that

petitioner has adduced is the uncorroborated testimony of her

counsel, Sallie Gladney (Gladney), who claims to have delivered

the petition, along with a stack of other mail, to the 24-hour

U.S. post office located at Bush International Airport, in

Houston, Texas, on March 29, 1999, at “approximately” 11:30 p.m.

She also testified, however, that she did not remember the exact

time.       Her own testimony, therefore, does not exclude the



        5
       Petitioner argues that the two digits in question could
conceivably be something other than “30”, but has advanced no
alternative possibility that is meaningful in the instant factual
context. In particular, petitioner does not argue, and we do not
believe, that the digits could realistically be construed as
“29”, to corroborate her claim that the petition was mailed on
Mar. 29, 1999. Petitioner suggests that the first digit could be
construed as a zero. If so, the postmark would have been made in
the first 9 days of March, a scenario that is inconsistent with
petitioner’s own contention that she mailed the petition on Mar.
29, and that is unlikely in light of the Court’s receipt of the
petition by U.S. mail on Apr. 5, 1999.
                                - 8 -

possibility that the petition might have been mailed after

midnight, and thus on March 30, rather than March 29, 1999.

     Gladney testified that she mailed the petition by certified

mail and paid postage accordingly but never received a sender’s

receipt, because she had left the receipt at her office and did

not have time to return for it.   Gladney suggested no plausible

reason why the sender’s receipt should have been detached from

the Form 3800 (certified mail receipt) of which it was originally

part, though her testimony clearly suggests that she was aware

beforehand that it had been detached and remained at her office.

     More fundamentally, however, we find Gladney’s testimony

implausible and self-serving.   As a practicing tax attorney,

Gladney should have been aware of the risks associated with

mailing the petition at the 23d hour of the last day prescribed

for filing it with the Court.   Cf. Drake v. Commissioner, 554

F.2d 736, 739 (5th Cir. 1977) (“we could hardly ignore the fact

that the petition was mailed at 6:00 p.m. on the ninetieth day--a

circumstance which could not help but raise the spectre of

possible timeliness problems”).   By mailing the petition by

certified mail, as she did, she could overcome those risks by

virtue of having a timely postmarked sender’s receipt.   See sec.

301.7502-1(c)(2), Proced. & Admin. Regs.   She claims not to have

received one.   The evidence indicates that there would have been

hundreds of Forms 3800 at the post office.   The record contains
                              - 9 -

no satisfactory explanation why Gladney, upon discovering that

the original Form 3800 was missing the crucial sender’s receipt,

would not have simply used another, intact Form 3800 to certify

the mailing or else have made other efforts to obtain from the

postal clerk a substitute receipt.    These unexplained

irregularities undermine the credibility of Gladney’s testimony.

     In sum, we conclude and hold that petitioner has failed to

establish timely mailing of the petition.    Therefore, we must

grant respondent’s motion to dismiss the case for lack of

jurisdiction.6



                                     An appropriate order of

                              dismissal for lack of jurisdiction

                              will be entered.




     6
       Although petitioner cannot pursue her case in this Court,
she is not without a remedy, as she may pay the tax, file a claim
for refund with the IRS, and if the claim is denied, sue for a
refund in the Federal District Court or the U.S. Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970);
Koerner v. Commissioner, T.C. Memo. 1997-144.
