Martin S. Echter, Washington, D. C. (Ira M. Lowe, Washington, D. C., of counsel), for petitioner-appellant.

Mary L. Jennings, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Daniel F. Ross, Attys., Tax Div., Dept. of Justice, Washington, D. C., of counsel), for respondent-appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge.*

This is an appeal from the dismissal of a petition to the United States Tax Court on the ground that the petition was untimely filed.

On June 29, 1977, the Internal Revenue Service issued a notice of deficiency to the taxpayer David Deutsch for a total of $27,006.68. On October 12, 1977, 105 days after issuance of the notice, the Tax Court received and filed as a petition a copy of a letter dated August 4, 1977 and postmarked "Oct. (illigible) 1977." This letter was signed by the taxpayer's accountant,1 and although addressed to the Internal Revenue Service office in Los Angeles, the letter stated that a copy was being sent to the United States Tax Court. For reasons which do not appear on the record, the copy allegedly addressed to the Tax Court was never found or presented. The Commissioner moved to dismiss the petition for lack of jurisdiction. In response, the taxpayer offered the affidavit of his accountant who claimed he had mailed the copy of the letter to the Tax Court on August 4, 1977, within the ninety day period prescribed.2

A Special Trial Judge of the Tax Court Fred S. Gilbert held a hearing on April 26, 1978 at which the accountant testified regarding the issue of the mailing. On July 6, 1978, Chief Judge C. Moxley Featherston dismissed the petition on the ground that it was not timely filed and thus the Tax Court lacked jurisdiction.

Taxpayer appeals the Tax Court dismissal, contending that his petition was timely filed since his accountant testified that it was timely mailed.

It is not disputed that the Tax Court cannot assert jurisdiction unless a petition is filed within ninety days after a deficiency notice has been mailed by the Commissioner. Vibro Manufacturing Co. v. Commissioner,312 F.2d 253 (2d Cir. 1963) (per curiam). Section 75023 of the Internal Revenue Code provides guidance for determining filing when a petition is mailed. In certain cases, the date of the postmark or the date of registration will be deemed the date of delivery to the Tax Court. However, in the present case, there is no postmark or registration receipt that indicates timely mailing. Further, the legislative history indicates that section 7502 is only applicable if the petition is actually delivered. See H.Rep.No.1337, 83d Cong., 2d Sess. 434-35, as reprinted in 3 U.S.Code Cong. & Admin.News pp. 4017, 4583 (1954); S.Rep., as reprinted in 3 U.S.Code Cong. & Admin.News, pp. 4621, 5266 (1954). Delivery for these purposes is synonymous with receipt of the item. See 26 C.F.C. § 301.7502-1(d) (1978).

Taxpayer argues that Section 7502 creates a presumption in favor of the taxpayer and that, if such section does not apply, the taxpayer can prove delivery and timeliness by other evidence without benefit of the presumption. We disagree. The exception embodied in section 7502 and the cases construing it demonstrate a penchant for an easily applied, objective standard. See Fishman v. Commissioner, 420 F.2d 491 (2d Cir. 1970). Where, as here, the exception of section 7502 is not literally applicable, courts have consistently rejected testimony or other evidence as proof of the actual date of mailing. See, e. g., Shipley v. Commissioner, 572 F.2d 212, 214 (9th Cir. 1977); Drake v. Commissioner, 554 F.2d 736, 738-39 (5th Cir. 1977); Boccuto v. Commissioner, 277 F.2d 549, 553 (2d Cir. 1960).

Taxpayer further argues that it is a denial of due process to bar him from proving that he mailed his petition in any way other than provided by section 7502. We are not persuaded of any unconstitutionality in Congress' intent, manifested in section 7502, to limit proof of mailing to some type of objective evidence. Both administrative convenience and the likelihood that a petition never received was never sent support the rationale of the section.

Further, we note that the taxpayer is not without redress. After paying the deficiency he may file a claim for refund and, if that claim is denied, he may commence an action in the district court to recover the tax paid. See 28 U.S.C. § 1346(a)(1) (1976). The constitutionality of such a result has been upheld. See Phillips v. Commissioner, 283 U.S. 589, 595-97, 51 S. Ct. 608, 75 L. Ed. 1289 (1931).

The order of the Tax Court is therefore affirmed.