                        T.C. Memo. 1998-298



                      UNITED STATES TAX COURT



         EDWARD C. AND MARGARET C. CHANG, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24759-96.                     Filed August 18, 1998.



     Basil J. Boutris, for petitioners.

     James A. Whitten and Usha Ravi, for respondent.



                        MEMORANDUM OPINION

     GALE, Judge:   This case is before the Court on respondent's

motion to dismiss for lack of jurisdiction.     The issue for

decision is whether petitioners filed their petition for
                               - 2 -

redetermination within the 90-day period prescribed by section

6213(a).1

Background

     On August 7, 1996, respondent issued and mailed to

petitioners a statutory notice of deficiency determining a

deficiency of $160,266 in petitioners' 1992 Federal income tax

and an accuracy-related penalty under section 6662(a) of $32,053.

The 90-day period for filing a petition for redetermination with

this Court expired on Tuesday, November 5, 1996.

     The petition was received and filed by this Court on

November 18, 1996, 103 days after the mailing of the notice of

deficiency.   The petition was properly addressed and mailed in an

envelope bearing a privately metered postmark dated November 5,

1996, and indicating the point of origin as Campbell, California.

The envelope did not bear a postmark or any other marking of the

U.S. Postal Service.   The envelope in which the petition was

received by this Court is not torn or damaged, and there are no

markings indicating that additional postage was due or that the

normal delivery of the envelope was otherwise disrupted.

     The petition was dated November 5, 1996, and was signed by

petitioners' attorney.   Included in the envelope with the

petition was a check dated November 5, 1996, in the amount of $60


     1
       All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure, unless otherwise indicated.
                                - 3 -

to cover the filing fee drawn on the account of Maynard

Professional Corporation.

Discussion

     Section 6213(a) provides that a taxpayer has 90 days after

the mailing of the notice of deficiency (not counting Saturday,

Sunday, or a legal holiday in the District of Columbia as the

last day) to file a petition for redetermination with this Court.

In all cases, the jurisdiction of the Court depends upon the

timely filing of a petition.    Rule 13(c); Levitt v. Commissioner,

97 T.C. 437, 441 (1991).

     Section 7502(a)(1) provides that the date of a U.S. postmark

is deemed to be the date of delivery if the mailing requirements

of that section are met.    However, in the case of privately

metered mail, section 7502 applies "only if and to the extent

provided by regulations prescribed by the Secretary."    Sec.

7502(b).   Delegating the rules for privately metered mail to the

regulations process reflected congressional concern that the

postmark on such mail was susceptible to manipulation.

          Since it is possible to predate postmarks where
     mailing machines or other devices are used,
     subsection (b) provides that a postmark not made by the
     United States post office shall be deemed the date of
     delivery only to the extent permitted by regulations.
     * * * [H. Rept. 1337, 83d Cong., 2d Sess. (1954).]

In light of this concern, the regulations promulgated under

section 7502(b) are quite exacting and provide as follows:

          (b) If the postmark on the envelope or wrapper is
     made other than by the United States Post Office, (1)
                                - 4 -

     the postmark so made must bear a date on or before the
     last date, or the last day of the period, prescribed
     for filing the document, and (2) the document must be
     received by the agency, officer, or office with which
     it is required to be filed not later than the time when
     a document contained in an envelope or other
     appropriate wrapper which is properly addressed and
     mailed and sent by the same class of mail would
     ordinarily be received if it were postmarked at the
     same point of origin by the United States Post Office
     on the last date, or the last day of the period,
     prescribed for filing the document. However, in case
     the document is received after the time when a document
     so mailed and so postmarked by the United State Post
     Office would ordinarily be received, such document will
     be treated as having been received at the time when a
     document so mailed and so postmarked would ordinarily
     be received, if the person who is required to file the
     document establishes (i) that is was actually deposited
     in the mail before the last collection of the mail from
     the place of deposit which was postmarked (except for
     the metered mail) by the United States Post Office on
     or before the last date, or the last day of the period,
     prescribed for filing the document, (ii) that the delay
     in receiving the document was due to a delay in the
     transmission of the mail, and (iii) the cause of such
     delay. * * * [Sec. 301.7502-1(c)(1)(iii)(b), Proced. &
     Admin. Regs.]

The regulations thus provide two tests under which privately

metered mail bearing a timely postmark received after the 90-day

statutory filing period will be deemed timely filed under section

7502(a).    The first test requires that the petition be received

not later than the time that mail postmarked at the same mailing

point by the U.S. Postal Service on the last date prescribed for

filing, and sent by the same class of mail, would ordinarily be

received.   The second test, applicable if the petition is

received after the time prescribed in the preceding test,

requires that the taxpayer show (i) that the petition was
                                - 5 -

actually deposited in the mail within the prescribed period for

filing, (ii) that the delay in receipt was due to a delay in the

transmission of the mail, and (iii) the cause of such delay.

     In the instant case, the petition was received by the Court

13 days after the last date prescribed for filing.    Since the

privately metered postmark on the envelope is November 5, 1996,

the last date prescribed for filing, the petition will be deemed

timely under the regulations if it was received within the time

that mail of the same class would ordinarily be received if

mailed on that date from the same point of origin.    The parties

agree that the point of origin for these purposes is San Jose,

California.    Whether a petition has been received within the

normal mailing period is a factual question, and petitioners have

the burden of proving that the 13-day delivery is within the

normal mailing period for mail sent from San Jose, California, to

Washington, D.C.    Castro v. Commissioner, T.C. Memo. 1994-530.    A

U.S. Postal Service statistical programs coordinator in the San

Jose office, called by respondent, testified that the normal

delivery time from San Jose to Washington, D.C., in November 1996

was 3 days for first class mail and 5 to 7 days for third class

mail.    The envelope contains no markings indicating its postage

class, and petitioners have offered no other evidence on this

point.    On this record, we find that petitioners have failed to

show that the petition was received within the time that mail
                               - 6 -

deposited in San Jose on November 5, 1996, would ordinarily be

received in Washington, D.C.

     As a result, petitioners must show in the alternative that

(1) the petition was actually deposited in the mail on or before

November 5, 1996, prior to the last collection of mail, (2) that

the delay in receiving the petition was due to a delay in the

transmission of the mail, and (3) the cause for such delay.

     As proof that the petition was mailed on November 5, 1996,

petitioners' attorney, Basil Boutris, testified on their behalf.

Mr. Boutris testified that his office inadvertently failed to

"calendar" the Chang case, and as a result he did not discover

that the petition needed to be filed until November 5, 1996, the

last day prescribed for filing.   He testified that he accordingly

prepared a petition, used a private postage meter in an adjacent

law office for postage so as to insure the envelope bore the

correct date, and then personally took the envelope containing

the petition to the post office because it was election day and

he was traveling that way to vote.     According to Mr. Boutris, he

took the petition to the Meridian Branch of the San Jose Post

Office at approximately 5:30 p.m. and handed it to a postal

employee who reviewed the privately metered date on the envelope

and dropped it in the bin.

     This testimony is consistent with the policy of the U.S.

Postal Service to check the accuracy of the date stamped on

privately metered mail and only stamp the envelope with a U.S.
                                - 7 -

Postal Service postmark if the date is incorrect.   However,

according to the U.S. Postal Service employee called by

respondent, this verification only occurs when the mail is

presented to a postal employee.

     We need not decide, however, whether Mr. Boutris'

uncorroborated testimony as to the mailing date is sufficient

proof thereof because petitioners in any event have not satisfied

their burden of proof as to the last two conditions found under

section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.     Namely,

petitioners have failed to establish that the delay in receipt

was due to a delay in the transmission of the mail and the cause

therefor.

     Petitioners cite Rotenberry v. Commissioner, 847 F.2d 229

(5th Cir. 1988), revg. and remanding an Order of this Court, in

support of their contention that they have adequately explained

the delay.   In Rotenberry, the Court of Appeals for the Fifth

Circuit held that the taxpayer could meet his burden of proving

the cause of delay with proof of general reasons for delay in

mail delivery between the receiving station and the addressee,

without having to pinpoint the specific reason why the item of

mail in question was delayed.   The petition at issue in

Rotenberry was mailed on December 23 and received 8 days later on

December 31, which this Court found to be longer that the

ordinary delivery time.   The Court of Appeals noted that the

taxpayers had presented uncontroverted evidence of the following:
                              - 8 -

     (1) the dramatic increase in the volume of holiday
     mail; (2) the mailing by the IRS of 87 million tax
     return forms on December 27, 1985; (3) the recognized
     proclivity of some post office employees to take time
     off, leave early, and work less diligently during the
     holidays; (4) the addition of temporary postal
     employees during the holiday rush with their known
     deficiencies in accuracy and efficiency; (5) the heavy
     airline passenger traffic during the holidays,
     requiring that mail be pulled off flights and held for
     later flights, causing mail handling delays at Houston
     Intercontinental Airport of up to 48 hours; (6) the
     inclement weather during the critical period and the
     adverse effect it had on travel in the District of
     Columbia; and (7) the mail routine which calls for
     delivery of mail to the Tax Court only once a day, in
     the early morning, so that any item received at its
     immediate post office during the day is not delivered
     until the next. * * * [Id. at 232-233; fn. ref.
     omitted.]

On the basis of this evidence, the Court of Appeals concluded

that the taxpayers had met the requirements of section 301.7502-

1(c)(1)(iii)(b), Proced. & Admin. Regs.2

     On brief, petitioners attempt to bring themselves within a

Rotenberry scenario by repeated speculations about the impact of

"holiday" conditions on mail service.   The mailing period at

issue in this case is November 5, 1996 (the date on which

petitioners allege the petition was mailed), through November 18,

1996 (the date on which the petition was received).   In 1996,

Thanksgiving Day fell on November 28.   We do not believe that

petitioners have shown that "holiday" conditions existed that


     2
       The Commissioner had conceded that the delay in receipt
was occasioned by a delay in the transmission of the mail; the
dispute was over the adequacy of the taxpayer's proof of the
cause therefor.
                               - 9 -

would have had a significant impact on mail service during the

relevant period.   In addition, petitioners assert that there was

a severe storm creating flooding conditions in the Washington,

D.C., area on November 8, 1996.   Even were we to accept this

contention, it at most accounts for a delay in receipt from

Friday, November 8, until Tuesday or Wednesday, November 12 or

13, 1996.   (Monday, November 11, 1996, was a Federal holiday.)

Finally, in his testimony, Mr. Boutris made the bald assertion

that there were "delivery problems" at the Meridian Branch of the

San Jose Post Office.   This assertion was not corroborated, even

though Mr. Boutris testified that his secretary experienced the

same problems.

     Because the foregoing evidence falls well short of that in

Rotenberry v. Commissioner, supra, we have no occasion to

consider whether we should adopt the Rotenberry standard in

applying section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.

Suffice it to say that petitioners have failed to prove that the

delay in receipt was due to a delay in the transmission of the

mail and the cause therefor, even under the liberal Rotenberry

standard.   In any event, Rotenberry v. Commissioner, supra, would

not be binding authority here because it is to the Court of

Appeals for the Ninth Circuit that appeal of this case lies.    See

Hanna & Associates, P.C. v. Commissioner, T.C. Memo. 1997-376;

Little v. Commissioner, T.C. Memo. 1995-491; Oswald v.

Commissioner, T.C. Memo. 1995-17; Weinreich v. Commissioner, T.C.
                             - 10 -

Memo. 1994-32; Vanderstappen v. Commissioner, T.C. Memo. 1993-

109; see also Lindemood v. Commissioner, 566 F.2d 646 (9th Cir.

1977), affg. per curiam T.C. Memo. 1975-195.

     Because petitioners have failed to show that they meet the

requirements of section 301.7502-1(c), Proced. & Admin. Regs.,

the petition is not rendered timely by section 7502 and therefore

was not timely filed under section 6213(a).    Accordingly, we

grant respondent's motion to dismiss for lack of jurisdiction on

the ground that the petition was not timely filed.

     To reflect the foregoing,

                                 An appropriate order of dismissal

                         for lack of jurisdiction will be

                         entered.
