o f f i c e o f t h e c h i e f c o u n s e l department of the treasury i n t e r n a l r e v e n u e s e r v i c e w a s h i n g t o n d c date number info release date conex-151886-09 uilc -------------------------- ----------------------- ----------------------- dear --------------- this letter responds to your inquiry dated date ------------ spoke with you by telephone on ------------------------- to better understand your request you requested information on how to report the monthly fee that you pay to an alzheimer’s medical facility a medical_expense_deduction is allowed for expenses paid during the taxable_year not_compensated_for_by_insurance_or_otherwise for medical_care of the taxpayer spouse or dependent the deduction is only allowed for medical_expenses that exceed percent of adjusted_gross_income generally the entire cost of medical_care and meals_and_lodging which are furnished in an institution in which the individual’s condition is such that the availability of medical_care in such institution is a principal reason for her presence there is deductible as an expense for medical_care therefore if an individual is in a full-time facility and the individual’s principal reason for her presence in the facility is the availability of medical_care to treat alzheimer’s disease then the entire cost of medical_care and meals_and_lodging is deductible as a medical expense publication medical and dental expenses explains how to report medical_expenses on your individual federal_income_tax return form_1040 page of the publication for returns indicates that the medical_expense_deduction is reported on schedule a form_1040 line sec_1 through an example of reporting medical_expenses is provided on page of the publication you may also wish to refer to publication your federal_income_tax for individuals pages medical and dental expenses conex-151886-09 i hope this information is helpful if you have any questions please contact ------------ identification_number ---------- at --------------------- sincerely thomas d moffitt chief branch office of associate chief_counsel income_tax accounting enclosures publication your federal_income_tax pages publication medical and dental expenses


internal_revenue_service number release date index number ------------------------ ---------------------------------------------------- ------------------------------------------------------------ ------- --------------------------------------- ----------------------- ------------------------------------ department of the treasury washington dc third party communication none date of communication not applicable_person to contact -------------------------- id no ---------------- ----------------- telephone number --------------------- refer reply to cc corp b05 plr-151956-11 date date legend trust state a acquiring fund target fund --------------------------------- -------------------- ------------------------------------------------- ----------------------- ----------------------------------------------------------------- --------------------------------------------------------------------------------- ----------------------- adviser --------------------------------------------------------------------------------------- a shares --------------------- b shares --------------------- date date date date ------------------- ------------------- --------------------- ---------------------- plr-151956-11 date ----------------------- acquiring objective acquiring investments ------------------------------------------------------------------------------------------ --------------------------- ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ --------------------------------------------------------------------------------------- target objective ------------------------------------------------------------------------------------------ --------------------------------------------------------------- target investments ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------ ------------------------------------------------ a b x -------------- ------------- --- dear -------------------- this letter responds to your representative’s letter dated date requesting rulings as to the federal_income_tax consequences of a proposed transaction the material information submitted in that request and in subsequent correspondence is summarized below summary of facts the trust is a state a business_trust organized on date and registered as an open- end management investment_company with the securities_and_exchange_commission under the investment_company act of as amended the act plr-151956-11 the acquiring fund is a diversified series of the trust formed on date that has elected to be a regulated_investment_company a ric under sec_851 through of the internal_revenue_code the code and is treated as a separate corporation and separate taxpayer for federal_income_tax purposes pursuant to sec_851 the acquiring fund’s investment objective is acquiring objective the acquiring fund invests primarily in the acquiring investments as of date the acquiring fund has approximately dollar_figurea in assets under management the acquiring fund has two classes of stock outstanding acquiring fund a shares and b shares together the acquiring fund shares the target fund is a diversified series of the trust formed on date that has elected to be a ric under sec_851 through and is treated as a separate corporation and separate taxpayer for federal_income_tax purposes pursuant to sec_851 the target fund’s investment objective is target objective the target fund invests primarily in the target investments as of date the target fund has approximately dollar_figureb in assets under management the target fund has two classes of stock outstanding target fund a shares and b shares together the target fund shares both the acquiring fund and the target fund the funds are managed by the adviser each of the funds has provided financial statements describing its respective investment portfolio for the preceding five years in each of the past five completed taxable years over x of the acquiring investments has been in investment_assets that have met target objective proposed transaction for business reasons and pursuant to a plan_of_reorganization it is proposed that the acquiring fund and the target fund undertake the following transactions the reorganization i ii the target fund will transfer all of its assets and stated liabilities to the acquiring fund solely in exchange for acquiring fund a shares and b shares having a value equivalent to the net assets transferred and in proportion to the net asset value of the target fund attributable to target fund a shares and b shares respectively the target fund will distribute to its shareholders the target fund shareholders the acquiring fund a shares and b shares received in step i in constructive exchange for the target fund a shares and b shares respectively and plr-151956-11 iii the target fund will liquidate and will be terminated as a series of the trust representations the following representations have been made in connection with the reorganization a the fair_market_value of the acquiring fund shares that will be received by the target fund shareholders will be approximately equal to the fair_market_value of the target fund shares to be surrendered in exchange therefor in the reorganization the acquiring fund will issue no consideration to the target fund shareholders other than the acquiring fund shares including fractional shares if any in exchange for their target fund shares b on the date of the reorganization there will be no plan or intention for the acquiring fund or any person related within the meaning of sec_1_368-1 to the acquiring fund to acquire or redeem any of the acquiring fund shares issued in the reorganization either directly or through any transaction agreement or other arrangement with any other person other than redemptions that the acquiring fund will make as a series of an open- ended investment_company pursuant to sec_22 of the act c during the period beginning on date and ending the date of the reorganization neither the target fund nor any person related within the meaning of sec_1_368-1 without regard to sec_1 e i a to the target fund will have a acquired target fund shares with consideration other than acquiring fund shares or target fund shares except in the ordinary course of the target fund’s business as a series of an open- ended investment_company pursuant to sec_22 of the act or b made distributions with respect to the target fund shares except for i normal regular dividend distributions made pursuant to the target fund’s historic dividend-paying practice and ii dividends and other distributions declared and paid in order to ensure the target fund’s continuing qualification as a ric and to avoid the imposition of fund-level tax d prior to or in the reorganization neither the acquiring fund nor any person related within the meaning of sec_1_368-1 to the acquiring fund will have acquired directly or through any transaction agreement or arrangement with any other person target fund shares with consideration other than acquiring fund shares e the acquiring fund will acquire at least of the fair_market_value of the net assets and at least of the fair_market_value of the gross assets held by the target fund immediately prior to the reorganization for purposes of this representation amounts used immediately preceding the reorganization by the target fund to pay its reorganization expenses to make distributions and to plr-151956-11 make redemptions of any shareholder who meaningfully participated in planning or negotiating the reorganization will be included as assets of the target fund held immediately before the reorganization however amounts the target fund uses to make a all other redemptions of shares pursuant to sec_22 of the act and b dividends and other distributions declared and paid in order to ensure the target fund’s continuing qualification as a ric and to avoid the imposition of fund-level tax will not be included in the assets of the target fund held immediately before the reorganization f the target fund’s liabilities that will be assumed within the meaning of sec_357 of the code by the acquiring fund were incurred by the target fund in the ordinary course of its business and are associated with the assets that will be transferred to the acquiring fund g on the date of the reorganization a at least of the target fund’s portfolio assets will meet the investment objectives strategies policies risks and restrictions of the acquiring fund b the target fund will not have altered its portfolio in connection with the reorganization to meet the threshold c neither fund will have modified any of its investment objectives strategies policies risks or restrictions as part of the plan_of_reorganization for purposes of sec_1_368-1 and d the acquiring fund will have no plan or intention to change any of its investment objectives strategies policies risks or restrictions after the reorganization to the best of the knowledge of the acquiring fund’s management there is no plan or intention by the target fund shareholders to sell exchange or otherwise dispose_of a number of target fund shares or acquiring fund shares received in the reorganization in connection with the reorganization that would reduce the target fund shareholders’ ownership of target fund shares or equivalent acquiring fund shares to a number of shares that is less than of the current number of target fund shares outstanding h the target fund will distribute all of the acquiring fund shares received by it in the reorganization to the target fund shareholders in complete_liquidation in proportion to the number of target fund shares owned by each target fund shareholder i the target fund shareholders will pay their own expenses if any incurred in connection with the reorganization and each fund will pay its own portfolio transaction costs if any so incurred all other expenses including all fees incurred directly in connection with the reorganization by the funds will be borne by the target fund or the adviser all such expenses so incurred and borne shall be solely and directly related to the reorganization in accordance with the guidelines established in revrul_73_54 1973_1_cb_187 and shall be paid directly by the target fund or the adviser as applicable to the relevant providers of services or other payees plr-151956-11 j the fair_market_value of the assets of target fund transferred to acquiring fund will equal or exceed the sum of the liabilities assumed by acquiring fund plus the amount of liabilities if any to which the transferred assets are subject k at the date of the reorganization there will be no intercorporate indebtedness existing between the funds that was issued acquired or settled at a discount l each fund has elected to be a ric under sec_851 and for all of its taxable periods including the last short taxable_period ending on the date of the reorganization for the target fund each fund has qualified or intends to continue to qualify for the special tax treatment afforded to rics under the code after the reorganization the acquiring fund intends to continue to so qualify m the acquiring fund does not own directly or indirectly nor has it owned directly or indirectly any target fund shares n the target fund is not under the jurisdiction of a court in a title_11_or_similar_case as defined in sec_368 rulings based solely on the information submitted and the representations set forth above we hold as follows the reorganization will qualify as a reorganization within the meaning of sec_368 the acquiring fund and the target fund are each a party to the reorganization within the meaning of sec_368 no gain_or_loss will be recognized by the target fund upon the transfer of all of its assets to the acquiring fund in exchange for the acquiring fund stock and the assumption by the acquiring fund of the target fund liabilities sec_361 and sec_357 no gain_or_loss will be recognized by the target fund on the distribution of acquiring fund stock to its shareholders sec_361 no gain_or_loss will be recognized by the acquiring fund upon receipt of the assets of the target fund in exchange for acquiring fund stock sec_1032 the basis of the assets of the target fund in the hands of the acquiring fund will be the same as the basis of those assets in the hands of the target fund immediately prior to the transfer sec_362 plr-151956-11 the holding_period of the assets of the target fund in the hands of the acquiring fund will include the period during which those assets were held by the target fund sec_1223 no gain_or_loss will be recognized by the target fund shareholders on the receipt of acquiring fund stock solely in exchange for their target fund stock sec_354 the basis of the shares of acquiring fund stock received by the target fund shareholders will be the same as the basis of the target fund stock surrendered in exchange therefor sec_358 the holding_period of the acquiring fund stock received by the target fund shareholders will include the period during which the target fund shareholders held the target fund stock surrendered in exchange therefor provided the target fund stock was held as a capital_asset on the date of the exchange sec_1223 pursuant to sec_381 and sec_1_381_a_-1 the acquiring fund will succeed to and take into account the items of the target fund described in sec_381 subject_to the provisions and limitations specified in sec_381 sec_382 sec_383 and sec_384 and the regulations thereunder pursuant to sec_1_381_b_-1 the tax_year of the target fund will end on the effective date of the reorganization caveats the rulings contained in this letter are based upon facts and representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party this office has not verified any of the materials submitted in support of the request for rulings verification of the information representations and other data may be required as part of the audit process we express no opinion about the tax treatment of the transactions described above under other provisions of the code or income_tax regulations or the tax treatment of any conditions existing at the time of or effects resulting from the transactions described above that are not specifically covered by the above rulings procedural statements this ruling is directed only to the taxpayer requesting it sec_6110 of the code provides that it may not be used or cited as precedent a copy of this letter must be attached to any income_tax return to which it is relevant alternatively taxpayers filing their returns electronically may satisfy this requirement by plr-151956-11 attaching a statement to their return that provides the date and control number of the letter_ruling in accordance with the power_of_attorney on file with this office a copy of this letter is being sent to your authorized representatives sincerely _lisa a fuller_____________________ lisa a fuller branch chief branch office of associate chief_counsel corporate


internal_revenue_service number release date index number ------------------- --------------------------------------- ---------------------------- -------------------- ----------------------------- department of the treasury washington dc third party communication none date of communication not applicable_person to contact ---------------------------- id no ---------- telephone number --------------------- refer reply to cc psi plr-116889-09 date date legend taxpayer ----------------------------------------------------------------------- ------------------------------ subsidiary b c d dear ------------------ ---------------------------------- ------ ------ -------- this is response to a request for rulings dated date submitted by your authorized representatives the ruling concerns the interplay of the rules in sec_199 of the internal_revenue_code as they relate to subchapter_t cooperatives taxpayer is a nonexempt agricultural_cooperative that processes b products on behalf of its c farm members taxpayer is a pooling marketing_cooperative and distributes the net_proceeds to the members through monthly pools and an annual patronage_dividend subsidiary is a wholly owned subsidiary of taxpayer and is also a nonexempt agricultural_cooperative taxpayer and subsidiary are both calendar_year taxpayers and file separate federal_income_tax returns subsidiary purchases b products such as d from taxpayer and sells them in the retail market subsidiary pays a negotiated price under a contract to taxpayer for its products inventories are computed under sec_471 and sec_263a of the code at the end of each year plr-116889-09 subsidiary computes its patronage source income and distributes a patronage_dividend to its parent taxpayer subsidiary does not operate as a pooling cooperative but rather as a non-pooling cooperative however its bylaws require that patronage losses be recouped from patronage income either through loss_carrybacks or carryforwards the board has the authority to determine the method to be used when losses occur both taxpayer and subsidiary are eligible to compute the sec_199 deduction based on their domestic_production activities taxpayer is eligible to compute its sec_199 deduction for patronage income purposes by adding back the monthly b check ie per-unit retain paid in money advances made on the monthly pools and the patronage_dividend subsidiary computes its sec_199 deduction for patronage income purposes by adding back the patronage_dividend but not the amount_paid to its parent taxpayer for the b products taxpayer represents that it and its subsidiary are members of the same expanded_affiliated_group taxpayer is a specified agricultural or horticultural cooperative because it is a cooperative to which part i of subchapter_t of the code applies and the cooperative has manufactured produced grown or extracted either directly or through attribution and marketed an agricultural product b supplied by the members the special attribution rule for marketing cooperatives under sec_199 applies to taxpayer and subsidiary the activities of the patrons as producers of b is attributed to taxpayer and subsidiary whether taxpayer and subsidiary actually does any processing of the b or not taxpayer and subsidiary have significant w-2_wages from their respective business operations if the various calculations were applied purely on a separate company basis taxpayer’s sec_199 deduction would however be limited to percent of its w-2_wages due to the significant amount of its separate company sec_199 deduction as determined before application of the w-2 wage limitation and subsidiary’s sec_199 deduction would not be limited by percent of its w-2_wages as its separate company sec_199 deduction as determined before application of the w-2 wage limitation disregarding the amount_paid directly for b products cooperatives are permitted to benefit from the sec_199 deduction under sec_199 of the code the sec_199 rules for cooperatives are intended to apply to any agricultural or horticultural cooperative that has qualified_production_activities_income whether the cooperative is a marketing_cooperative or a supply cooperative in addition the provision contains a special rule the cooperative attribution rule treating a marketing_cooperative as having manufactured produced grown or extracted mpge the product if its patrons manufactured produced grew or extracted the product sec_199 of the code allows a deduction equal to percent percent in the case of taxable years beginning in or and percent in the case of plr-116889-09 taxable years beginning in or of the lesser_of a the qualified_production_activities_income qpai of the taxpayer for the taxable_year or b taxable_income determined without regard to sec_199 for the taxable_year or in the case of an individual adjusted_gross_income sec_199 of the code limits the deduction for a taxable_year to percent of the w-2_wages paid_by the taxpayer during the calendar_year that ends in such taxable_year for this purpose sec_199 defines the term w-2_wages to mean the sum of the aggregate amounts the taxpayer is required under sec_6051 and to include on the forms w-2 wage and tax statement of the taxpayer's employees during the calendar_year ending during the taxpayer's taxable_year sec_199 allows a cooperative to deduct percent when fully phased in of the lesser_of its qpai or taxable_income determined without regard to sec_199 from gross_income and thus reduce otherwise taxable_income of the cooperative in order to determine a profit on which to compute the sec_199 benefit congress provided that certain distributions to patrons would not be taken into account and thus would be deemed to be the profit of the cooperative this provision was intended to give the cooperative a method of computing a benefit under the rules after computing the amount of the sec_199 deduction taking into account the limitation based on the applicable_percentage of taxable_income the cooperative must compare that amount to percent of the cooperative’s w-2_wages and the deduction is limited to the lower_of the two amounts sec_1_199-2 of the income_tax regulations provides guidance on the application of the w-2 wage limitation for taxpayers computing a sec_199 deduction the amount of the sec_199 deduction allowable is limited to percent of the w-2_wages of the taxpayer a taxpayer may take into account any wages paid_by another entity and reported by the other entity on forms w-2 provided that the wages were paid to employees of the taxpayer for employment by the taxpayer w-2_wages must be included in a return filed with the social_security administration on or before the 60th day after the due_date including extensions for such return w-2_wages includes only that are properly allocable to domestic_production_gross_receipts sec_1_199-6 provides that the w-2 wage limitation described in sec_1_199-2 shall be applied at the cooperative level whether or not the cooperative chooses to pass through some or all of the sec_199 deduction any sec_199 deduction that has been passed through by a cooperative to its patrons is not subject_to the w-2 wage limitation a second time at the patron level sec_1_199-7 prescribes the rules related to an expanded_affiliated_group eag all members of an eag are treated as a single corporation for purposes of sec_199 except as otherwise provided in the code and regulations each member plr-116889-09 of an eag is a separate taxpayer that computes its own taxable_income or loss qpai and w-2_wages sec_1_199-7 provides that the sec_199 deduction for an eag is determined by the eag aggregating each member’s taxable_income or loss qpai and w-2_wages under sec_1_199-7 once the eag sec_199 deduction is computed it is allocated among the members of the eag in proportion to each member’s qpai sec_1_199-7 defines an eag as an affiliated_group as defined in sec_1504 determined by substituting more than percent for at least percent each place it appears and without regard to sec_1504 and a corporation must also determine if it is a member of an eag on a daily basis as noted earlier taxpayer has represented that it and subsidiary are members of the same eag sec_1504 includes all corporations under the definition of affiliated groups except entities specifically excluded nonexempt cooperatives are not excluded from such definition furthermore nonexempt cooperatives have been affirmatively allowed to be included in consolidated_returns in accordance with sec_1504 this allows nonexempt cooperatives to be eligible for inclusion within the filing of consolidated federal tax returns and treated as members of an eag for purposes of the sec_199 deduction sec_1_199-6 provides that the cooperative may at its discretion pass through all some or none of the sec_199 deduction to its patrons the computation of the sec_199 deduction is the same whether the cooperative passes through all some or none of the sec_199 deduction to its patrons due to taxpayer’s sec_199 deduction being limited by the amount of its w-2_wages taxpayer wants to clarify the appropriate application of the w-2 wage limitation sec_1_199-6 states that the w-2 wage limitation is applied at the cooperative level whereas sec_1_199-7 treats members of the same eag as a single entity for computational purposes and w-2_wages are aggregated sec_1_199-7 applies to taxpayer as a member of an eag in applying sec_1_199-7 qpai taxable_income and w-2_wages are computed separately for each member of the eag such amounts are aggregated together for all members of the eag at which level the qpai taxable_income and w-2 wage limitations are applied to compute the eag’s sec_199 deduction the eag’s sec_199 deduction is allocated to each member based on its contribution to the eag’s qpai sec_1_199-6 requires the w-2 wage limitation to be applied at the cooperative level whether or not the cooperative chooses to pass through some or all of the sec_199 deduction this allows a cooperative to compute its sec_199 deduction based upon its activities and w-2_wages while preventing the cooperative from aggregating any w-2_wages of the individual patrons to modify the w-2 wage plr-116889-09 limitation amount sec_1_199-6 further provides that any sec_199 deduction that has been passed through by a cooperative to its patrons is not subject_to the w-2 wage limitation a second time at the patron level this prevents any further limitation of the sec_199 deduction calculated at the cooperative level by an individual patron who may or may not have any w-2_wages sec_1_199-6 prevents manipulation of the sec_199 deduction by precluding the cooperative from aggregating w-2_wages of the individual patrons and by restricting the application of the w-2 limitation a second time at the individual patron level sec_1_199-6 does not supersede the eag rules in sec_1_199-7 rather both rules apply thus cooperatives such as taxpayer and subsidiary aggregate their taxable_income qpai and w-2_wages wages of the cooperative employees not of the individual patrons compute their sec_199 deduction and apply the w-2 wage limitation to the eag sec_1_199-6 does not override the application of the eag rules in sec_1_199-7 based solely on the foregoing facts law and analysis we rule that taxpayer should apply the w-2 limitation in accordance with the eag rules in sec_1_199-7 specifically taxpayer should apply the w-2 limitation as if all members of eag were a single corporation and allocate the sec_199 deduction to the eag members in proportion to their contribution to the eag’s qpai this ruling is directed only to the taxpayer that requested it under sec_6110 of the code it may not be used or cited as precedent in accordance with a power_of_attorney filed with the request a copy of the ruling is being sent to your authorized representatives sincerely yours paul f handleman paul f handleman chief branch office of the associate chief_counsel passthroughs special industries


t c memo united_states tax_court edward c and margaret c chang petitioners v commissioner of internal revenue respondent docket no filed date 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 redetermination within the 90-day period prescribed by sec_6213 background on date respondent issued and mailed to petitioners a statutory_notice_of_deficiency determining a deficiency of dollar_figure in petitioners' federal_income_tax and an accuracy-related_penalty under sec_6662 of dollar_figure the 90-day period for filing a petition for redetermination with this court expired on tuesday date the petition was received and filed by this court on date 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 date 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 date and was signed by petitioners' attorney included in the envelope with the petition was a check dated date in the amount of dollar_figure 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 to cover the filing fee drawn on the account of maynard professional_corporation discussion sec_6213 provides that a taxpayer ha sec_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 c 97_tc_437 sec_7502 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 sec_7502 applies only if and to the extent provided by regulations prescribed by the secretary sec_7502 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 83d cong 2d sess in light of this concern the regulations promulgated under sec_7502 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 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 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 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 sec_7502 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 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 days after the last date prescribed for filing since the privately metered postmark on the envelope is date 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 tcmemo_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 date wa sec_3 days for first class mail and to 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 deposited in san jose on date would ordinarily be received in washington d c as a result petitioners must show in the alternative that the petition was actually deposited in the mail on or before date prior to the last collection of mail that the delay in receiving the petition was due to a delay in the transmission of the mail and the cause for such delay as proof that the petition was mailed on date 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 date 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 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 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 sec_301_7502-1 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 847_f2d_229 5th cir 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 and received days later on december 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 the dramatic increase in the volume of holiday mail the mailing by the irs of million tax_return forms on date the recognized proclivity of some post office employees to take time off leave early and work less diligently during the holidays the addition of temporary postal employees during the holiday rush with their known deficiencies in accuracy and efficiency 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 hours the inclement weather during the critical period and the adverse effect it had on travel in the district of columbia and 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 pincite fn ref omitted on the basis of this evidence the court_of_appeals concluded that the taxpayers had met the requirements of sec_301 c iii b proced admin regs 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 date the date on which petitioners allege the petition was mailed through date the date on which the petition was received in thanksgiving day fell on november we do not believe that petitioners have shown that holiday conditions existed that 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 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 date even were we to accept this contention it at most accounts for a delay in receipt from friday november until tuesday or wednesday november or monday date 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 sec_301_7502-1 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 tcmemo_1997_376 little v commissioner tcmemo_1995_491 oswald v commissioner tcmemo_1995_17 weinreich v commissioner tcmemo_1994_32 vanderstappen v commissioner tcmemo_1993_ see also 566_f2d_646 9th cir affg per curiam tcmemo_1975_195 because petitioners have failed to show that they meet the requirements of sec_301_7502-1 proced admin regs the petition is not rendered timely by sec_7502 and therefore was not timely filed under sec_6213 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