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Ir v. ng and Helen FISHMAN, Petitioners-Appellants,

PER CURIAM.

This is an appeal from an order of the Tax Court of the United States, Charles R. Simpson, Judge, dismissing appellants' petition for a redetermination of a tax deficiency (for 1964) as untimely filed and thus for lack of jurisdiction. 51 T.C. 869 (1969). The Commissioner mailed appellants notice of tax deficiency on June 7, 1967. 26 U.S.C. § 6213(a) allows 90 days for a taxpayer to petition the Tax Court for a redetermination of the deficiency, and the 90 days expired on September 5, 1967. Appellants mailed their petition allegedly on September 5, but the only objective proof of this was the date on the private postage meter mark on the envelope reading September 5. The letter was received by the Tax Court on Monday, September 11. The earliest the letter could have reached Washington was after business hours on Friday, September 8. The parties stipulated that the ordinary mailing time from New York City to Washington was one day.

The Tax Court held that Treasury Regulation Sec. 301.7502-1(c) (iii) (b) was valid and that thereunder the petition was not timely filed, and dismissed the action.

Sec. 301.7502-1 Timely mailing treated as timely filing.

We affirm the dismissal on the opinion of Judge Simpson in the Tax Court.

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FISHMAN v. C.I.R
(Jan 7, 1970)