                         T.C. Memo. 2000-146



                       UNITED STATES TAX COURT



                   ORLANDER ROBINSON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10505-99.                      Filed April 24, 2000.



     J. Donald Hughes, for petitioner.

     John F. Driscoll, for respondent.



                          MEMORANDUM OPINION

     DAWSON, Judge:    This case was assigned to Special Trial

Judge John J. Pajak pursuant to Rules 180, 181, and 183.    All

Rule references are to the Tax Court Rules of Practice and

Procedure.    The Court agrees with and adopts the opinion of the

Special Trial Judge, which is set forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     PAJAK, Special Trial Judge:    This case is before the Court
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on respondent's motion to dismiss for lack of jurisdiction on the

grounds that the petition was not filed within the time

prescribed by section 6213(a) or section 7502.   Section

references are to the Internal Revenue Code in effect for the

period relevant here.

     Respondent determined a deficiency in petitioner's Federal

income tax in the amount of $110,253 for the taxable year 1995.

The sole issue for decision is whether petitioner timely filed

his petition with this Court.

     At the time the petition was filed with this Court,

petitioner resided in Grove Hill, Alabama.   Petitioner filed a

statement opposing respondent's motion to dismiss.   A hearing was

held in Birmingham, Alabama, on respondent's motion.

     On February 23, 1999, respondent mailed to petitioner at his

last known address a notice of deficiency in income tax for the

year ended December 31, 1995.   The 90-day period for filing a

petition for redetermination of the deficiency with this Court

ended on May 24, 1999, which was not a legal holiday in the

District of Columbia.

     In a sworn affidavit, petitioner's attorney J. Donald

Hughes, (Mr. Hughes), stated that at around 7 p.m. on Saturday,

May 22, 1999, he placed the petition in the metered-mail

receptacle of the U.S. post office located on St. Joseph Street

in Mobile, Alabama.   Prior to the mailing, Mr. Hughes used a
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private postage meter to place the correct amount of postage on

the envelope.   The postage meter had been advanced to reflect

Monday, May 24, 1999, mailings.   Thus, the date on the envelope

reads May 24, 1999.

     The petition was filed in this Court on June 7, 1999, 104

days after the notice of deficiency was mailed to petitioner.

     The manager of distribution operations tour 3 of the U.S.

Postal Service in Mobile, Alabama, testified that the standard

delivery time for a first-class envelope mailed from the St.

Joseph's branch of the post office in Mobile, Alabama, to the Tax

Court in Washington, D.C., is 3 days.    He also testified that if

a letter is misplaced, missent, or inadvertently lost or damaged,

then there should be some sort of marking on it "to let you know

exactly what has happened to that letter".    There are no such

markings on the envelope that contained the petition in this

case.

     This Court's jurisdiction to redetermine a deficiency

depends upon 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).   Pursuant to section 6213(a), the taxpayer

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 with the Court for a

redetermination of the deficiency.     If the petition is not filed
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within 90 days, then it is untimely, and we have no jurisdiction

to redetermine the deficiency.    Sec. 6213(a).    Section 7502(a)

provides an exception to the rule of section 6213(a) in that, if

the petition is deposited in the mail in the United States in a

properly addressed envelope on or before the date on which it is

required to be filed, and if the date of the U.S. postmark on the

envelope containing the petition is on or before the date on

which the petition is required to be filed, the date of such

postmark is deemed to be the date of filing.      However, if the

envelope bears a postmark other than that of the U.S. Postal

Service, section 7502 applies only to the extent provided by

regulations.   Sec. 7502(b).   (Rules concerning the application of

section 7502 where mailing is through a private delivery service

are set forth in section 7502(f), but such services were not used

in this case.)

      The regulations provide that privately metered mail showing

a date within the 90-day period is considered timely filed if it

is:

      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.

Sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.      We refer

to that time period as the normal delivery time for mail
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postmarked by the U.S. Postal Service.     Fujioka v. Commissioner,

T.C. Memo. 1999-316.   We rely on the credible testimony of the

witness from the U.S. Postal Service and find that the normal

delivery time for first-class mail between Mobile, Alabama, and

Washington, D.C., is approximately 3 days.     Cf. Beacham v.

Commissioner, T.C. Memo. 1996-226.     In the instant case, the

petition was received by this Court 14 days after the date shown

on the private postmark.   Because the petition was not delivered

within the normal delivery time, petitioner will not be entitled

to relief unless he can establish:     (1) The actual date of

mailing was prior to the expiration of the 90-day period; (2)

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

transmission of mail; and (3) the cause of such delay.     Fujioka

v. Commissioner, supra; sec. 301.7502-1(c)(1)(iii)(b), Proced. &

Admin. Regs.

     Petitioner contends that his case is similar to that in

Rotenberry v. Commissioner, 847 F.2d 229 (5th Cir. 1988), revg.

and remanding an Order of this Court, where the petition was

mailed 2 days before Christmas and received by this Court 8 days

later.   We find that case distinguishable on its facts.

Petitioner states in his opposition to the motion to dismiss that

there was a delay in the delivery of the petition and that the

delay was attributable to one or more of the following factors:

     (a) the fact that May 24, 1999 was one week before the
     Memorial Day celebration on May 31, 1999, a federal holiday,
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     (b) there is an increase in the volume of such holiday mail,
     (c) the recognized deficiency of some U.S. Post Office
     employees to take time off, leave early, and work less
     diligently during such holiday, (d) the addition of
     temporary postal employees during such holiday rush and
     celebration with their known deficiency in accuracy and
     efficiency, (e) the heavy airline passenger traffic during
     the Memorial Day celebration period requiring that the mail
     be pulled off flights and held for later flights, causing
     mail handling delays at Mobile Regional Airport, (f) the
     inclement weather during the critical period and the adverse
     effect it had on travel in the District of Columbia, and (g)
     the mail routine of the U.S. Tax Court which calls for
     delivery of mail to the U.S. Tax Court only once a day, so
     that any items received at its immediate post office during
     the day is [sic] not delivered until the next day.

Petitioner makes speculations about the impact of "holiday"

conditions on mail service.   We do not believe that petitioner

has established that "holiday" conditions existed that would have

had a significant impact on mail service during the relevant

period.   Cf. Chang v. Commissioner, T.C. Memo. 1998-298; Oswald

v. Commissioner, T.C. Memo. 1995-17.     We note that none of the

assertions made above are corroborated.    While the Christmas

holiday season could very well lead to delays in mail delivery,

we find no evidence or reason to believe that Memorial Day has a

similar effect.

     It is unfortunate that a petition purportedly mailed by the

end of the 90-day period was not received by the Court until the

14th day after its mailing.   However, because petitioner's

attorney used a private metered postmark instead of taking the

envelope to the post office on May 24, 1999, and having it

postmarked, the regulations require petitioner to show, and he
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has not shown, that there was a delay in the transmission of the

mail, nor has he shown any reason for the delay in the

transmission of the mail, if there was such a delay.     Beacham v.

Commissioner, supra.

     Petitioner argues that because the regulations cannot be

satisfied, they are invalid.    We reject this assertion.   “This

Court and other courts have upheld the regulations with respect

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

date."   Beacham v. Commissioner, supra.   Mr. Hughes could have

used other alternatives to mail the petition, such as certified

mail, which would have provided prima facie evidence that the

petition was timely mailed.    Sec. 7502(c).

     Petitioner has failed to provide evidence that establishes

that the late delivery of the petition was due to a delay in the

transmission of the mail and the cause of any such delay.     Thus,

we hold that he did not file his petition with this Court within

the time prescribed by sections 6213(a) and 7502, and

respondent's motion to dismiss for lack of jurisdiction should be

granted.

     Although petitioner cannot pursue his case in this Court, he

is not without a judicial remedy.    Specifically, he may pay the

tax, file a claim for refund with the Internal Revenue Service,

and, if his claim is denied, sue for a refund in the appropriate

Federal District Court or the U.S. Court of Federal Claims.     See
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McCormick v. Commissioner, 55 T.C. 138, 142 (1970).

     To reflect the foregoing,

                                         An order granting respondent's

                                 motion to dismiss for lack of

                                 jurisdiction will be entered.
