                  T.C. Memo. 2005-164



                UNITED STATES TAX COURT



    LEONARD AND L. MELNIK GROSSMAN, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 8662-04.              Filed July 5, 2005.



     On Jan. 5, 2004, R issued a notice of deficiency to
petitioners. The envelope containing Ps’ petition was
postmarked by a private postage meter with a date of March
30, 2004. The envelope was properly addressed, but it was
received by the Court after the 90-day period for filing
prescribed by sec. 6213(a), I.R.C. R moved to dismiss this
case for lack of jurisdiction on the ground that Ps’
petition for redetermination was not timely filed. Secs.
6213(a), 7502(a) and (b), I.R.C. Ps contend that their
petition was timely filed because it was mailed in
accordance with the timely-mailing/timely-filing rule in
sec. 7502, I.R.C., and the regulations prescribed
thereunder.

     Ps further contend that because they satisfied the
requirements of sec. 7491(a), I.R.C., the burden of proof
shifts to R on the issue of whether Ps’ petition was timely
filed. R argues that the plain language of sec. 7491(a)(1),
I.R.C., indicates it is not applicable to the issue of
whether Ps’ petition was timely filed. R argues, in the
                                - 2 -

     alternative, that sec. 7491(a)(3), I.R.C., precludes the
     application of sec. 7491(a)(1), I.R.C., to the issue of
     whether Ps’ petition was timely filed because the
     regulations are legislative regulations that were prescribed
     by the Secretary pursuant to Congress’s grant of authority
     in sec. 7502(b), I.R.C., and because the regulations
     specifically place the burden of proof on Ps.

          Held: R’s motion to dismiss for lack of jurisdiction
     will be denied because the preponderance of the evidence
     establishes that Ps’ petition was timely filed in accordance
     with sec. 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin.
     Regs. In addition, we need not decide whether sec. 7491(a),
     I.R.C., is applicable to the jurisdictional issue because we
     decide that on the preponderance of the evidence.


     Melvyn Ward, for petitioners.

     Patricia A. Riegger, for respondent.


              MEMORANDUM FINDINGS OF FACT AND OPINION


     GOEKE, Judge:    This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction.

                          FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts is incorporated herein by this

reference.   Petitioners resided in Brooklyn, New York, when their

petition was filed.

     On January 5, 2004, respondent determined by notice of

deficiency a deficiency in petitioners’ Federal income tax of

$34,125 and an accuracy-related penalty under section 6662(a)1 of


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
                                                   (continued...)
                                - 3 -

$6,825 for their 2001 tax year.   Petitioners’ petition needed to

be filed with the Court by April 5, 2004, which was not a

Saturday, a Sunday, or a legal holiday in the District of

Columbia, for it to be timely filed pursuant to section 6213(a).

It was not received and filed by the Court until May 25, 2004;

thus, respondent moved to dismiss this case for lack of

jurisdiction pursuant to Rule 36(a).

     Petitioners’ petition was sent in an envelope properly

addressed to this Court by certified mail, article No. 7194 9102

2970 0000 1909.   Petitioners’ counsel received a return receipt

confirming that the petition was received by the Court on May 25,

2004.    The envelope containing the petition received by the Court

(collectively termed, piece of mail at issue) did not bear a U.S.

Postal Service postmark or any other U.S. Postal Service mark.

Instead, the envelope bears a privately metered postmark dated

March 30, 2004.

Canceled Checks

     The Court received eight canceled checks into evidence at

trial.    Melvyn Ward, P.A., petitioners’ counsel, was the payor of

these checks.   These checks were issued as follows:




     1
      (...continued)
to the Tax Court Rules of Practice and Procedure.
                                  - 4 -

Check No.           Issuance Date            Payee             Amount

 4367                 3/26/2004           Brenda Bucco         $488.67
 4368                 3/26/2004           Lisa M. Arcate        495.98
 4369                 3/26/2004           Lisa Perlman          643.96
 4370                 3/30/2004           United States Tax      60.00
                                          Court
 4371                 4/1/2004            The Bureau of Fire    90.00
                                          Prevention
 4372                 4/1/2004            Hazlet Township       50.00
 4373                 4/1/2004            Hazlet Township       25.00
 4374                 4/1/2004            Hazlet Township      100.00

U.S. Postal Written Correspondences

     On June 9, 2004, the Consumer Affairs & Claims, Central New

Jersey Performance Cluster of the U.S. Postal Service, sent a

letter to petitioners’ counsel regarding the piece of mail at

issue, certified mail article No. 7194 9102 2970 0000 1909.         The

relevant portion of this letter states:

     Our records indicate that item number 7194 9102 2970
     0000 1909 was delivered on May 25, 2004 to the Tax
     Court and signed for by “K. Mitchell”. The item went
     to Clarksburg, New Jersey and was scanned incorrectly
     as delivered there, but was then sent on to Washington,
     DC for delivery. All mail for any government office in
     Washington, DC is still being irradiated due to the
     anthrax ordeal from a few years ago.

     On August 26, 2004, the manager of the Consumer Affairs &

Claims, Central New Jersey Performance Cluster of the U.S. Postal

Service, sent a letter to chief counsel of the Internal Revenue

Service.    The relevant portions of this letter state:

     On June 9, 2004, my office responded to a letter from
     Mr. Melvin Ward regarding the disposition of a
     certified mailpiece addressed to the Tax Court in
     Washington, DC 20217. I am sorry to learn that the Tax
     Court is not accepting Mr. Ward’s mailpiece because of
     a missed closing date. Our records indicated that the
                              - 5 -

     certified mailpiece was delivered May 25, 2004 to the
     Tax Court and signed for by “K. Mitchell.” Our records
     also indicated an intermittent scan in Clarksburg New
     Jersey on May 13, 2004.

     The Clarksburg scan appears to have been in error and
     should have been scanned missent. * * * Since our
     record show no acceptance scan for the mailpiece, we
     can only presume the letter did not enter the mails
     prior to May 12, 200[4] if it had been mailed from Zip
     Code 07730. * * *

     If the item had been mailed on March 30, 2004 according
     to information supplied by Mr. Ward, a Postal employee
     would have date stamped the receipt. The verification
     and date stamp by the Postal employee would also have
     been done [on] a customer’s “Firm Sheet” that lists
     multiple items. Mr. Ward was unable or did not supply
     a dated receipt (or Firm Sheet) that indicated the date
     the mailpiece was accepted by a Postal employee to be
     deposited into the mails. * * *

Irradiation of Mail

     In the June 9, 2004, letter to petitioners’ counsel, the

U.S. Postal Service indicated, among other things, that all mail

addressed to any Government office in Washington, D.C., continues

to be subjected to irradiation to eliminate any anthrax spores.

                             OPINION

     This Court has limited jurisdiction.   This Court’s

jurisdiction to redetermine a deficiency depends on the issuance

of a valid notice of deficiency and a timely filed petition.

Rule 13(a), (c); Levitt v. Commissioner, 97 T.C. 437, 441 (1991).

Section 6213(a) provides that a petition for redetermination of a

deficiency determined by respondent is timely filed if it is

filed within 90 days, or 150 days if the notice is mailed to a
                                - 6 -

taxpayer outside the United States, after a notice of deficiency

is mailed.    Here, petitioners’ petition was received by the Court

on May 25, 2004.   Because the notice of deficiency was not

addressed to persons outside of the United States, petitioners’

petition was filed well after the 90-day period provided in

section 6213(a), which had expired on April 5, 2004.

Nevertheless, a petition received and filed by the Court after

the expiration of the 90-day period may be deemed timely filed if

it was mailed in conformity with the precepts set forth in

section 7502 and the regulations promulgated thereunder.

     Section 7502 and the regulations prescribed thereunder

contain the requirements for treating any document as timely

filed when it was timely mailed (the timely-mailing/timely-filing

rule).   The general rule provides that the date of a U.S. Postal

Service postmark is deemed to be the delivery date.    Sec.

7502(a).   For this general rule to apply, however, a taxpayer

must have mailed the document at issue in a properly addressed

envelope, postage prepaid, and postmarked by the U.S. Postal

Service within the prescribed period or on or before the

prescribed date for the filing, including any extensions granted

for filing.   See id.; sec. 301.7502-1(c)(1)(i), (ii), and (iii),

Proced. & Admin. Regs.   In this case, the piece of mail at issue

bears a private postage meter stamp; thus, section 7502(a) is not

applicable.
                              - 7 -

     However, in a case such as this, the timely-mailing/timely-

filing rule may apply to a postmark not made by the U.S. Postal

Service to the extent provided by regulation.   Sec. 7502(b).

Under section 301.7502-1(c)(1)(iii)(B)(1), Proced. & Admin.

Regs., the timely-mailing/timely-filing rule applies to non-U.S.

Postal Service postmarks if the following requirements are

satisfied:

          (i) The postmark so made must bear a legible date
     on or before the last date, or the last day of the
     period, prescribed for filing the document or making
     the payment; and

          (ii) The document or payment 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 or payment contained in an envelope that is
     properly addressed, 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 U.S.
     Postal Service on the last date, or the last day of the
     period, prescribed for filing the document or making
     the payment.

     In this case, the postmark on the envelope containing

petitioners’ petition was within the prescribed filing period,

and also was mailed in a properly addressed envelope.    At

respondent’s behest, Stanley Wong (Mr. Wong), a delivery and

retail analyst for the New York District of the U.S. Postal

Service, credibly testified that the service standard mailing

period from Hazlet, New Jersey, to Washington, D.C., is 2 days

(the 2-day standard) for a piece of first-class mail properly

addressed and postmarked by the U.S. Postal Service.    The piece

of mail at issue here was not received by the Court until May 25,
                               - 8 -

2004, well after the expiration of the 90-day period for filing

plus the 2-day standard for it to be considered timely mailed.

Even if we account for the estimated 4 days it takes to irradiate

an item of mail addressed to a Government office in Washington,

D.C., petitioners’ petition was still not received in a timely

fashion under this rule.2   Because petitioners’ petition was

received and filed outside the prescribed period, including the

standard delivery time, it will be deemed timely filed only if

the following requirements are established by petitioner:

          (i) That it was actually deposited in the U.S.
     mail before the last collection of mail from the place
     of deposit that was postmarked (except for the metered
     mail) by the U.S. Postal Service on or before the last
     date, or the last day of the period, prescribed for
     filing the document or making the payment;

          (ii) That the delay in receiving the document or
     payment was due to a delay in the transmission of the
     U.S. mail; and

          (iii) The cause of the delay.

Sec. 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs.

     The validity of this regulation has been upheld.   Lindemood

v. Commissioner, 566 F.2d 646, 649 (9th Cir. 1977), affg. T.C.



     2
      For the petition at issue to be timely filed under sec.
6213(a) it needed to be filed with the Court by Monday, Apr. 5,
2004. Accounting for the 2-day standard, had the piece of mail
at issue been mailed on Apr. 5, 2004, it would not have reached
this Court until Wednesday, Apr. 7, 2004. Accounting for the 4-
day period to irradiate the piece of mail at issue, it would not
have reached this Tax Court until Sunday, Apr. 11, 2004. Since
there is no mail delivered to the Court on weekends, the piece of
mail at issue would not have been received or filed by the Court
until Monday, Apr. 12, 2004.
                               - 9 -

Memo. 1975-195; Fishman v. Commissioner, 51 T.C. 869, 872 (1969),

affd. per curiam 420 F.2d 491 (2d Cir. 1970).

      Before we address whether the piece of mail at issue

satisfied the requirements of section 301.7502-

1(c)(1)(iii)(B)(2), Proced. & Admin. Regs., we are asked to

decide which party bears the burden of proof.

A.   Burden of Proof

      Generally, a taxpayer bears the burden of proving that this

Court has jurisdiction.   See Patz Trust v. Commissioner, 69 T.C.

497, 503 (1977); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975);

Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177,

180 (1960); Natl. Comm. To Secure Justice v. Commissioner, 27

T.C. 837 (1957).

      Section 7491(a) shifts the burden of proof to the

Commissioner under certain circumstances.   The parties dispute

whether section 7491(a)(1) applies to questions of jurisdiction.

Section 7491(a)(1) shifts the burden of proof to the Commissioner

if the taxpayer “introduces credible evidence with respect to any

factual issue relevant to ascertaining the liability of the

taxpayer for any tax imposed by subtitle A and B” in any court

proceeding.   Subtitle A contains the Federal income tax, and

subtitle B contains the Federal gift and estate tax.   The burden

shifts to the Commissioner under section 7491(a)(1) with respect

to an issue only if the taxpayer has complied with the

requirements imposed by the Internal Revenue Code (the Code) to
                              - 10 -

substantiate any item, has maintained all records as required by

the Code and cooperated with reasonable requests made by

respondent for witnesses, information, documents, meetings, and

interviews, and meets the net worth limitation set forth in

section 7430(c)(4)(A)(ii) if the taxpayer is a partnership,

corporation, or trust.   Sec. 7491(a)(2).   Additionally, section

7491(a)(3) provides that section 7491(a)(1) does not apply to any

issue with respect to which the Code provides for a specific

burden of proof.

     Petitioners’ position is that section 7491(a) is applicable

in deciding whether their petition was timely filed.    Respondent

argues that section 7491(a) is not applicable to this issue

because whether petitioners’ petition was timely filed is not a

factual issue relevant to the ascertainment of petitioners’ tax

liability imposed by subtitle A or B.   In the alternative,

respondent argues that because the regulations prescribed by the

Secretary pursuant to section 7502(b) are legislative

regulations, section 7491(a)(3) precludes the application of

section 7491(a).   Because we decide the jurisdictional issue by

the preponderance of the evidence, we need not address the

application of section 7491(a) to the instant matter.    Blodgett

v. Commissioner, 394 F.3d 1030, 1039 (8th Cir. 2005), affg. T.C.

Memo. 2003-212.
                               - 11 -

B.   Section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs.
     Analysis

     Petitioners must establish that their petition was mailed in

compliance with three requirements for it to be deemed timely

filed under section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin.

Regs.    These requirements include:    (1) The piece of mail at

issue was actually deposited in the U.S. mail in a timely

fashion; (2) the delay in receipt of the piece of mail at issue

was due to a delay in transmission; and (3) what caused the

delay.    Id.

     (1)    Was Petitioners’ Petition Actually Deposited in the
            U.S. Mail Before the Expiration of the 90-Day Period
            Prescribed for Filing?

     At trial, Brenda Bucco (Ms. Bucco) testified on petitioners’

behalf.    Ms. Bucco is employed by petitioners’ counsel as an

office manager, a position she has held for 11 years.      Ms. Bucco

testified that on March 29, 2004, she prepared petitioners’

petition to be mailed by placing it in a properly addressed

envelope, affixing the proper postage, and completing the

certified mail receipt.    Ms. Bucco maintained a private postal

meter mailing log in the ordinary course of business that shows

March 29, 2004, as the date she prepared petitioners’ petition.

She further testified that on March 30, 2004, she personally

handed the piece of mail at issue to a U.S. Postal Service

employee who collected her employer’s mail from his office in

Hazlet, New Jersey.
                              - 12 -

     Respondent argues that Ms. Bucco’s testimony is not

credible.   In support of his argument, respondent offered a copy

of Ms. Bucco’s affidavit, dated August 3, 2004, that was received

by the Court into evidence for impeachment purposes.   This

affidavit indicates that Ms. Bucco mailed the piece of mail at

issue on March 29, 2004.   However, Ms. Bucco’s August 3, 2004,

affidavit submitted to this Court, which was signed and

notarized, and her testimony both indicate that she mailed the

piece of mail at issue on March 30, 2004.   Ms. Bucco testified

that in originally preparing her affidavit she failed to consider

that she would have given the piece of mail at issue to the

mailman the day after she prepared the petition for petitioners’

counsel’s signature.   This failure apparently caused there to be

two versions of Ms. Bucco’s affidavit dated August 3, 2004.

However, given Ms. Bucco’s reasonable explanation, we do not find

this discrepancy significant enough to question Ms. Bucco’s

veracity.   In all other respects, we find Ms. Bucco’s testimony

to be consistent and credible.

     Petitioners’ position that their petition was timely mailed

is further supported by canceled check No. 4370, dated March 30,

2004, that named this Court as the payee.   After considering Ms.

Bucco’s testimony and canceled check No. 4370, we hold that the
                              - 13 -

piece of mail at issue was deposited in the U.S. mail on or

before the last day of the period prescribed for filing

petitioners’ petition.

     (2)   Was the Delay in Receiving Petitioners’ Petition
           Due to a Delay in the Transmission of Mail?

     The Court, at trial, received into evidence a letter from

the U.S. Postal Service dated August 26, 2004.   The letter

indicates that from May 13 through May 25, 2004, the piece of

mail at issue was delayed due to the fault of the U.S. Postal

Service.   Mr. Wong, an employee of the U.S. Postal Service,

interpreted the terms in this letter to mean that on May 13,

2004, the piece of mail at issue was incorrectly scanned as

delivered.   He also testified that a piece of mail sent from

Hazlet, New Jersey, to Washington, D.C., usually does not go

through Clarksburg, New Jersey, where it was received and

incorrectly scanned as delivered.   According to Mr. Wong, the

piece of mail at issue should have been scanned as missent.     A

missent piece of mail is one that arrives at the wrong

destination.   When a missent piece of mail is properly scanned as

missent, the post office that incorrectly received the piece of

mail is identified.

     Respondent contends that the delay in the Court’s receipt of

the piece of mail containing petitioners’ petition was not the

result of a delay in the transmission of the mail.   Specifically,

respondent points to the U.S. Postal Service letters dated June 9
                                - 14 -

and August 26, 2004, in which the U.S. Postal Service accepted

responsibility for delaying the transmittal of the piece of mail

at issue from May 13, 2004, until it was delivered on May 25,

2004.   Since May 13, 2004, was after the 90-day filing period had

expired, respondent reasons that petitioners have failed to show,

as required by section 301.7502-1(c)(1)(iii)(B)(2)(ii) and (iii),

Proced. & Admin. Regs., that the delay from April 5 until May 13,

2004, was caused by the U.S. Postal Service’s mistake.     We

disagree with respondent’s analysis.     In the August 26, 2004,

letter, the author stated: “we can only presume” (emphasis added)

that the envelope containing petitioners’ petition could not have

entered the U.S. mail system earlier than May 12, 2004.     Mr. Wong

testified that this presumption was likely made on the basis of

the standard delivery time for a piece of mail sent from Hazlet,

New Jersey, to Clarksburg, New Jersey.     A presumption is indeed

not a fact.   Mr. Wong testified to the effect that on the basis

of the information available to the U.S. Postal Service it is

impossible to identify the actual mailing date of the piece of

mail in question.   The author of the August 26, 2004, letter,

moreover, did not testify at trial, and we shall not speculate on

the basis of his presumption.    Mr. Wong’s testimony, Ms. Bucco’s

testimony and affidavit submitted to the Court, and the letter

issued by the U.S. Postal Service taking partial responsibility

for missending and incorrect scanning, all lead us to conclude
                               - 15 -

that petitioners’ petition was delayed because of errors made by

the U.S. Postal Service in the transmission of the mail.

     (3)    What Caused the Delay?

     Mistakes occur and the delay at issue was the result of

such.   The facts indicate that the U.S. Postal Service missent

the piece of mail at issue to Clarksburg, New Jersey, a location

this piece of mail should have never reached had it been handled

properly.    There the U.S. Postal Service incorrectly scanned it

delivered, instead of scanning it missent.   This may have

perpetuated the delay.    A careful review of the envelope in which

petitioners’ petition was mailed supports a finding that it was

properly addressed to this Court in Washington, D.C.   Given these

unique circumstances, together with all of the other evidence

presented, we find that petitioners have provided specific

evidence that the delay resulted from errors made by the U.S.

Postal Service.

     (4)    Conclusion

     We hold that the preponderance of the evidence establishes

that petitioners have satisfied the timely-mailing/timely-filing

requirements set forth in section 301.7502-1(c)(1)(iii)(B)(2),

Proced. & Admin. Regs.    Therefore, respondent’s motion to dismiss

for lack of jurisdiction will be denied.


                                     An appropriate order

                                will be isued.
