                        T.C. Memo. 1996-226



                      UNITED STATES TAX COURT



                HERMAN W. BEACHAM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11292-95.                       Filed May 20, 1996.



     Marion F. Walker, for petitioner.

     John F. Driscoll, for respondent.


                        MEMORANDUM OPINION

     SCOTT, Judge:   This case is before us on petitioner's motion

to reconsider our order of dismissal.

     On August 4, 1995, respondent filed a motion to dismiss this

case for lack of jurisdiction on the ground that the petition was

not filed within the time prescribed by section 6213(a)1 or

     1
          All section references are to the Internal Revenue
Code, and all Rule references are to the Tax Court Rules of
section 7502.   On August 18, 1995, petitioner filed a response to

respondent's motion, stating that the envelope in which the

petition was mailed reflected a mailing date from Birmingham,

Alabama, of June 15, 1995, which was within the 90-day period for

filing the petition.   On September 7, 1995, this Court entered an

order of dismissal for lack of jurisdiction in this case on the

ground that the petition was not timely filed.   The motion to

reconsider this order of dismissal was calendared for hearing at

the trial session of the Court commencing in Birmingham, Alabama,

on October 30, 1995, and pursuant to this order, the motion to

reconsider came on for hearing.

     Petitioner, by agreement with respondent, offered several

affidavits and the testimony of two witnesses with respect to the

timeliness of the mailing and receipt of the petition in this

case.

     The record here shows that on March 21, 1995, respondent

mailed to petitioner at his last known address by certified mail

a notice of deficiency in income tax and additions to tax for the

year ended December 31, 1992.   The 90th day after the mailing of

the notice of deficiency was June 19, 1995, which was a Monday.

Petitioner's witnesses testified that on June 15, 1995, the

petition in this case was prepared by an assistant to

petitioner's attorney in this case and a summer law clerk in her

office.   Sometime in the afternoon of June 15, petitioner's



Practice and Procedure, unless otherwise indicated.
                              - 3 -


attorney returned to her office, reviewed and signed the

petition, and, because of the late hour, actually assisted the

assistant and the summer law clerk in making some necessary

photostatic copies to file with the petition.   Her assistant and

summer law clerk put the petition signed by petitioner's attorney

in an envelope properly addressed to this Court, placed the

proper amount of metered postage on the envelope, and placed a

metered postmark of June 15, 1995, on the envelope.    After this

was done, this envelope, together with other mail from the office

of petitioner's attorney that was to be sent out that date was

taken by petitioner's attorney's assistant, and he and

petitioner's attorney and petitioner's attorney's summer law

clerk all left the attorney's office together and went down to

the ground floor in the building in which the attorney's office

was located in Birmingham, Alabama.   The assistant placed all of

the mail he had to mail for June 15, 1995, in a U.S. Postal

Service mailbox on the ground floor of the building.

Petitioner's attorney's summer law clerk and petitioner's

attorney saw the assistant place the mail in the mailbox sometime

between 5:30 and 6 p.m.

       An envelope properly addressed to the U.S. Tax Court in

Washington, D.C., and mailed by regular mail from the Birmingham,

Alabama, area bearing a U.S. postmark with a date in June 1995

would ordinarily take 3 business days to reach the U.S. Tax
                                - 4 -


Court.    There were no circumstances or events known to or

recorded by the post office in Birmingham with respect to

disruption in the normal postal service between the post office

box in which petitioner's petition was mailed and Washington,

D.C., in June 1995.

     An attorney practicing in Birmingham who very often mails

documents to Washington, D.C., primarily to the Department of

Justice, has found that the documents he mails from Birmingham,

Alabama, to Washington, D.C., very often take 5 business days to

arrive.   When a weekend is involved it is not uncommon for

receipt of the document to be a week after the date it was

mailed.

     It is petitioner's position that the evidence shows that the

envelope in which the petition in this case was mailed was placed

in a U.S. mailbox in Birmingham, Alabama, on June 15 and that its

receipt by the Court on June 26 should under the provisions of

section 7502, be sufficient to show that the petition was timely

filed.

     Section 7502(a) provides that a document, including a

petition to be filed with the Tax Court, which is properly mailed

within the period prescribed for its filing and delivered to the

Tax Court after the expiration of such period will be deemed to

be filed on the date of the U.S. postmark stamped on the envelope

if the U.S. postmark date stamped on the envelope falls within
                               - 5 -


the period prescribed for filing the document.   With respect to

postmarks made by private postage meters, as was the case here,

section 7502(b) provides that section 7502 shall apply in the

case of postmarks not made by the U.S. Post Office only if and to

the extent provided by regulations prescribed by the Secretary or

his delegate.   Section 301.7502-1(c)(1)(iii)(b), Proced. & Admin.

Regs., sets forth the conditions under which a private metered

postmark, which bears a date within the time allowed for filing a

document, will meet the requirements of section 7502 that the

postmark date is the filing date.    These regulations provide that

if a document containing a private metered postmark is delivered

within the time ordinarily required for the delivery of a

document properly mailed on the date of the postmark, the date of

the private metered postmark will be considered the filing date

if it falls on the last day or before the last day allowed for

the filing of the document.   This regulation further provides

that if the document is not delivered within the time ordinarily

required for delivery of such a document, the document will be

considered timely filed only if the person who is required to

file the document shows that the document was actually deposited

in the mail in time to be collected from the place of deposit on

or before the last day prescribed for filing, that the delay in

the delivery was attributable to delay in the transmission of the

mail, and the cause of such delay.
                               - 6 -


     Here, if we accept that petitioner has shown that the

document was actually deposited in the mail in time to be

collected from the place of deposit on or before the last day

prescribed for filing, we cannot under these regulations find

that the petition was timely mailed, since petitioner has not

shown that the delay in delivery was attributable to delay in the

transmission of the mail or, if any such delay occurred, the

reason therefor.

     Petitioner's first argument is that the document deposited

in the mail was actually received in the ordinary time required

for documents to be received in Washington from Birmingham.

However, if we accept the June 15th postmark which was on the

envelope in which the petition was mailed, and the testimony of

petitioner's witnesses as showing June 15, 1995, as the date of

mailing of the petition, the petition should have been received

in Washington on Monday, June 19, 1995, the 90th day after the

mailing of the notice of deficiency.   If Saturday and Sunday are

not counted in the time of normal receipt of mail, it would

normally have been received at least by June 20, 1995.   We take

the Postal Service's statement of the normal time for delivery of

mail since, in our view, the experience of one lawyer primarily

with mail addressed to one Government agency, even though the

occurrence may be frequent, is not sufficient proof of the normal

time for delivery of mail.   However, if the time experienced by
                               - 7 -


the lawyer for mail delivery were used, delivery would have been

on June 22, 1995, but was not until June 26, 1995.   Therefore,

clearly, delivery was not within the normal time for mailing if

in fact the envelope containing the petition was mailed on June

15, 1995, as petitioner contends.

     Since the final date for filing the petition was not until

June 19, 1995, we specifically asked petitioner's attorney to

state whether petitioner was contending that receipt in the

normal time from June 19, 1995, would cause the filing date of

the petition to be timely.   Petitioner made no argument in this

regard.   However, the delivery date of June 26 was not within the

normal time for transmission of mail from Birmingham, Alabama, to

Washington, D.C., in June 1995, according to the experience of

the U.S. Postal Service, for a document mailed on June 19, 1995.

However, since the actual private metered postmark date was June

15 and the testimony is that June 15 was the date of mailing, it

would appear that normal receipt would be judged from that date.

     It is certainly unfortunate that a petition purportedly

mailed 4 days before the 90th day after the mailing of the notice

of deficiency was not received by the Court until the 11th day

after its mailing.   However, since petitioner used a private

metered postmark rather than taking the envelope to the post

office and having it postmarked, the regulations have not been

complied with in this case since petitioner has not shown that
                               - 8 -


there was a delay in the transmission of the mail to which the

delay in delivery was attributable and since petitioner has not

shown any reason for the delay in the transmission of the mail if

there was such a delay.   Petitioner in effect argues that since

there was a delay in the mail with respect to the envelope

containing his petition, the late receipt of the petition was due

to a delay in the transmission of the mail.   We do not consider

petitioner's interpretation of the regulation the proper

interpretation.   However, even if petitioner's interpretation

were proper, petitioner has failed to show the cause of the

delay.

     This Court and other courts have upheld the regulations with

respect to when a private metered postmark will be accepted as a

filing date.   Lindemood v. Commissioner, 566 F.2d 646 (9th Cir.

1977), affg. T.C. Memo. 1975-195; Fishman v. Commissioner, 51

T.C. 869, 872 (1969), affd. 420 F.2d 491 (2d Cir. 1970).

     Based on the facts established by this record, the

regulations with respect to mail postmarked by a private postal

meter, and the cases of this and other Courts upholding the

regulations, we conclude that petitioner has failed to show any

reason why this case should not be dismissed for lack of

jurisdiction, and, therefore, we shall deny petitioner's motion

to reconsider our order of dismissal for lack of jurisdiction of

this case entered September 7, 1995.
     - 9 -


       Petitioner's motion to reconsider

the order of dismissal will be denied.
