                          T.C. Memo. 2002-218



                       UNITED STATES TAX COURT



                  LANDER GIBSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 615-02.                   Filed August 27, 2002.


     Lander Gibson, pro se.

     Edward D. Fickess, for respondent.



                          MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by section 6213(a) or 7502.1


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
                                                   (continued...)
                               - 2 -

Background

     At the time he filed his petition and amended petition,

petitioner resided in Syracuse, New York.

     In the notice of deficiency, dated September 4, 2001,

respondent determined a deficiency in petitioner’s 1999 Federal

income tax of $5,028.2   The notice of deficiency advised

petitioner that he had 90 days from the date of the notice to

file a petition in the Tax Court for a redetermination of the

deficiency.   The notice of deficiency stated that the last date

to petition the Tax Court was December 3, 2001.

     Petitioner mailed a petition properly addressed to the Court

in late November 2001 at a post office in the Carousel shopping

mall in Syracuse after he finished work.    The Court received the

petition on January 2, 2002, which is 120 days after the mailing

of the notice of deficiency.   In November and December 2001 and

January 2002, the Court was experiencing significant anthrax-

related mail delays following the closure of the post office

serving the Court.   In January 2002, the Court was still

receiving mail from November and December 2001.   All of the

regular U.S. mail received by the Court was subject to

irradiation treatment.   As a result of the irradiation treatment,



     1
      (...continued)
are to the Tax Court Rules of Practice and Procedure.
     2
         Amounts are rounded to the nearest dollar.
                                 - 3 -

the postmark on the envelope in which the petition arrived was

illegible.3

     On April 12, 2002, respondent filed a motion to dismiss for

lack of jurisdiction on the ground that the petition was not

timely filed.    On May 10, 2002, petitioner objected to the

granting of this motion.

Discussion

     Our jurisdiction to redetermine a deficiency depends on the

issuance of a valid notice of deficiency and a timely filed

petition.     Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

     Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.    It is sufficient for

jurisdictional purposes if the Commissioner mails the notice of

deficiency to the taxpayer’s “last known address”.    Sec.

6212(b)(1); Frieling v. Commissioner, 81 T.C. 42, 52 (1983).     The

taxpayer, in turn, has 90 days (or 150 days if the notice is

addressed to a person outside of the United States) from the date

that the notice of deficiency is mailed to file a petition in

this Court for a redetermination of the deficiency.    Sec.

6213(a).


     3
        We take judicial notice of the facts regarding the mail
delivery service to the Court. See also “Mail Delays Addressed”,
15 Daily Tax Rept. (BNA) G-2 (Jan. 23, 2002).
                                - 4 -

     Section 7502(a)(1) provides that, in certain circumstances,

a timely mailed petition will be treated as though it were timely

filed.   Section 7502(a)(2) provides that the timely

mailing/timely filing rule applies if the postmark date on an

envelope falls within the prescribed period or on or before the

prescribed date.

     Petitioner did not challenge the validity of the notice of

deficiency.   Our jurisdiction depends on whether the petition was

timely filed.

     The petition was received and filed by this Court more than

90 days after the mailing of the notice of deficiency.   As noted

above, the Court was experiencing delays in U.S. mail delivery

when the petition was mailed.   Additionally, the postmark was

illegible by the time it was received by the Court because of the

irradiation treatment.

     If the postmark is illegible, the taxpayer may offer

extrinsic evidence to establish what was or should have been the

actual date of the postmark.    Sylvan v. Commissioner, 65 T.C.

548, 553 (1975); Molosh v. Commissioner, 45 T.C. 320, 322 (1965).

The taxpayer bears the burden of proving timely mailing.     Sec.

301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.

     Petitioner, through testimony, sought to establish that he

mailed his petition timely and that the postmark, although

illegible, was timely.   See Mason v. Commissioner, 68 T.C. 354,
                                 - 5 -

357 (1977) (finding on the basis of the taxpayer’s testimony that

he mailed his petition timely).    We found petitioner to be

forthright and candid and his testimony to be credible.

Petitioner testified that, in mailing the petition, he was

“rushing” to make sure he “beat the time several days ahead”, and

the post office assured him that the petition would arrive “on

time”.   Petitioner testified that he mailed the petition return

receipt requested and made sure the receipt was stamped at the

post office.   Once the petition arrived at the Court, however, he

testified that he did not think to save the receipt because he

did not think it was important once he knew that the Court had

received the petition.   Further, petitioner provided credible

testimony as to where and when the petition was mailed.     We

conclude that petitioner timely mailed his petition.

     Accordingly, respondent’s motion to dismiss for lack of

jurisdiction will be denied.

     To reflect the foregoing,

                                               An appropriate order

                                          will be issued.
