* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
SUSAN ZIMMERMAN,

Petitioner - Appellant,

v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee.
DONALD ZIMMERMAN,

Petitioner - Appellant,

v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. No. 02-9004 (Tax Court No. 8127-01)

No. 02-9005 (Tax Court No. 8124-01)

ORDER AND JUDGMENT *

Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argume nt. We have consolidated these appeals for purposes of disposition. In No. 02-9004, Susan Zimmerman petitions for review o f decisions of the Tax Court granting the respondent’s motion to dismiss h er petition and denying her motion for reconsideration/motion for new trial. S imilarly, in No. 02-9005, Donald Zimmerman petitions for review of the Tax Co urt’s decisions dismissing his petition and denying his motion for reconsideration/motion for new trial. We dismiss Donald Zimmerman’s petition for review for lack of jurisdiction. We affirm the Tax Court’s decisions concerning Susan Z immerman’s petition. 1. Timeliness of Donald Zimmerman’s petition for review At the outset, we must address whether we have juri sdiction over Donald Zimmerman’s petition for review. Under Fed. R. App . P. 13(a)(1), a petitioner must file his petition for review within ninety day s of the entry of the Tax Court’s decision. If the petitioner makes a timely motion to vacate or revise the Tax Court’s decision, however, the time to file a notic e of appeal runs from the entry of the order disposing of that motion. Id. 13(a)(2).1 The Tax Court construed the motion to reconsider as a motion to vacate.

The motion was postmarked October 29, 2001 and henc e was timely. The Tax Court assigned the delay between the postmark and f iling dates to the closure of a Washington, D.C., postal service facility due to pr esence of anthrax bacterium. -3- The Tax Court entered a final order in Donald Zimme rman’s case on October 5, 2001. He filed a timely motion for reco nsideration on December 4, 2001. 1 The Tax Court denied his motion on December 7, 20 01. Mr. Zimmerman’s former counsel mailed a notice of appeal to the Tax Court 125 days later, on April 11, 2002. This April 11, 2002 notice of appeal was untimely. Mr. Zimmerman’s former counsel, however, also sent a letter to the Tax Court stating that she had mailed an original notice of appeal to the Tax Court on February 26, 2002, eighty-one days after the motion for reconsideratio n was denied. Her letter claimed that the original notice of appeal “evident ly was destroyed in the mail” and that “[w]e received in our office a mangled rep resentation of we think the appeal.” [sic] R. doc. 14, letter of April 11, 200 2. Counsel’s letter contained a photocopy of the original notice of appeal, but no registered or certified mail receipt and no evidence of the original envelope, i ts postmark date or its “mangled” contents. A notice of appeal is deemed delivered on the date of mailing, as established by a United States postmark. 26 U.S.C. § 7502(a), (b); 26 C.F.R.-4-

§ 301.7502-1(b)(iii). Use of registered mail or ce rtified mail provides prima facie evidence that the notice of appeal was delivered; the date of registration or the date of the U.S. postmark on the certified mail rec eipt is treated as the postmark date. 26 U.S.C. § 7502(C)(1); 26 C.F.R. § 301.7502 -1(c)(2). Mr. Zimmerman has presented no evidence that the original notice of appeal was postmarked within the prescribed time period. We have only co unsel’s unsworn letter and a purported copy of the original notice of appeal to evidence the first attempt at filing a notice of appeal. These items are insuffi cient as a matter of law to establish timely delivery and filing. Therefore, w e dismiss Mr. Zimmerman’s petition for review as untimely. 2. Susan Zimmerman’s petition The Tax Court dismissed Susan Zimmerman’s petition for failure to state a claim upon which relief could be granted. It furth er denied her motion to reconsider/motion for new trial (which it termed a motion to vacate), because the motion did nothing but repeat arguments raised prev iously. We review the dismissal of Ms. Zimmerman’s Tax Court petition for failure to state a claim de

novo . Fox v. Comm’r , 969 F.2d 951, 952 (10th Cir. 1992). The Tax Court’s denial of her motion to vacate is reviewed for an abuse of discretion. Drobny v. Comm’r , 113 F.3d 670, 676 (7th Cir. 1997).-5-

Having reviewed the briefs, the record and the appl icable law in light of the above-referenced standards, we AFFIRM the challenge d Tax Court decisions in No. 02-9004, for substantially the same reasons stated in the Tax Court’s orders of October 5, 2001 and December 7, 2001. We DISMIS S No. 02-9005, for lack of appellate jurisdiction. All pending motions are DENIED.

Entered for the Court

David M. Ebel Circuit Judge