                          T.C. Memo. 1996-376



                        UNITED STATES TAX COURT



               JAMES AND BEVERLY DONEHEY, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 8267-96.                     Filed August 14, 1996.


        James Donehey, pro se.

        Diane Helfgott and Kristine A. Roth, for respondent.


                          MEMORANDUM OPINION


        ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1



        1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 2 -


     This case is before the Court on respondent's Motion to

Dismiss for Lack of Jurisdiction, filed pursuant to Rule 53.   The

issue that we must decide is whether petitioners filed their

petition with the Court within the time period prescribed by

section 6213(a).

Background

     At the time that the petition was filed with the Court,

petitioners' mailing address was 1596 Shallowwell Road, Manakin

Sabot, Virginia 23103-2312 (the Manakin Sabot address).

     On January 16, 1996, respondent mailed a notice of

deficiency to petitioners.   In the notice, respondent determined

a deficiency in petitioners' Federal income tax for the taxable

year 1993 in the amount of $11,622, as well as an accuracy-

related penalty under section 6662(a) in the amount of $2,324.

The notice of deficiency was mailed to petitioners by registered

mail at the Manakin Sasbot address.

     On May 1, 1996, a petition was filed with this Court seeking

a redetermination of a portion of the deficiency determined by

respondent for the taxable year 1993.2   The petition was executed

by Arlene Berliner (Ms. Berliner), an individual associated with


     2
       The petition disputes only $9,526 of the $11,622
deficiency determined by respondent. Further, the petition does
not contest or otherwise place in dispute any portion of the
accuracy-related penalty. See Rule 34(b)(4) ("Any issue not
raised in the assignment of errors shall be deemed to be
conceded.").
                                  - 3 -


the accounting firm of Ernst and Young in New York but who is not

admitted to practice before this Court.     The date "15 April 1996"

is handwritten opposite Ms. Berliner's signature on the last page

of the petition.   The mandatory filing fee was not enclosed with

the petition.   See Rule 20(b).

     The petition arrived at the Court by mail in an envelope

properly addressed to the Court in Washington, D.C.     The envelope

bears the imprint of a rectangular ink stamp that states at the

top "Royal Mail" and that states at the bottom "Postage Paid -

Doncaster 1010 Great Britain".     The ink stamp does not include

any date.   An air mail sticker is also affixed to the envelope.

A return label placed immediately above the label for the

addressee's name and address reads as follows:     "If undelivered

please return to: PO Box 1006, Doncaster DN4 5NE England".     The

return label is placed over what appears to be Ms. Berliner's

name and address at the office of Ernst and Young in New York.

     Except for the docket number of this case, which was placed

on the envelope by personnel of the Court's Petitions Section, no

other markings, ink stamps, imprints, stickers, or labels appear

on either the front or reverse side of the envelope.     In

particular, there are no U.S. stamps or postmarks whatsoever.

Rather, the envelope gives every indication that it was

originally posted in Great Britain, transported across the
                               - 4 -


Atlantic, placed into the U.S. postal system, and ultimately

delivered to the Court in Washington, D.C.

     As indicated, respondent filed a Motion To Dismiss For Lack

Of Jurisdiction.   In her motion, respondent contends that

dismissal for lack of jurisdiction is required because

petitioners failed to file their petition within the 90-day time

period prescribed by sections 6213(a) and 7502.

     Petitioners filed an Objection to respondent's motion in

which they oppose the dismissal of this case on the following

ground:

     The petition was prepared and filed by our Accounting
     firm, Ernst & Young LLP. The petition was filed on
     April 15, 1996 and was mailed from New York, New York.
     Therefore it would not have had a foreign postmark.

     Respondent's motion was called for hearing at the Motions

Session of the Court in Washington, D.C.   Counsel for respondent

appeared and presented argument in support of the motion.    No

appearance was made by or on behalf of petitioners.   However, the

Court did receive a Rule 50(c) statement from Ms. Berliner, which

was filed on behalf of petitioners.

Discussion

     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); Normac, Inc. v. Commissioner, 90 T.C. 142,

147 (1988).
                                - 5 -


     Section 6212(a) expressly authorizes respondent, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.   The taxpayer, in turn,

ordinarily has 90 days from the date the notice of deficiency is

mailed to file a petition in this Court for a redetermination of

the contested deficiency.   Sec. 6213(a).   However, if the notice

of deficiency is addressed to a taxpayer outside of the United

States, then the taxpayer has 150 days to file a petition.

     By virtue of section 7502, a petition that is timely mailed

is deemed to be timely filed.   However, for this latter rule to

apply, the postmark date appearing on the envelope containing the

petition must be timely, that is, the postmark date must fall

within the applicable 90-day, or 150-day, time period.   Further,

the provisions of section 7502 contemplate that the envelope be

deposited in the mail in the United States, meaning that the

envelope is deposited with the domestic mail service of the U.S.

Postal Service.   Sec. 7502(a)(2)(B); sec. 301.7502-1(c)(1)(ii),

Proced. and Admin. Regs.    Finally, and perhaps most importantly,

section 7502 does not apply to any document that is deposited

with the mail service of any other country.   Sec. 301.7502-

1(c)(1)(ii), Proced. and Admin. Regs.3

     3
       Note that sec. 7502(b) expressly makes the provisions of
sec. 7502 applicable in the case of postmarks not made by the
U. S. Postal Service only if and to the extent provided by
regulations prescribed by the Secretary of the Treasury. As
stated above, sec. 301.7502-1(c)(1)(ii), Proced. and Admin.
                               - 6 -


     It is clear in the present case that respondent mailed the

notice of deficiency to petitioners on January 16, 1996.

Therefore, the 90-day period within which petitioners were

required to file their petition with the Court expired on Monday,

April 15, 1996.   However, petitioners did not file a petition for

redetermination with this Court until Wednesday, May 1, 1996, the

106th day after the notice of deficiency was mailed.    Moreover,

the petition did not arrive at the Court in an envelope bearing a

U.S. Postal Service postmark date.     Further, it is clear that the

petition was deposited with the mail service of the United

Kingdom.   Under these circumstances, it is evident that the

"timely mailing/timely filing" provisions of section 7502 are

inapplicable.   It is also evident that the petition was not

timely filed within the 90-day time period prescribed by section

6213(a).

     We note that the only matter raised by petitioners in their

Objection relates to the mailing date and place of mailing of

their petition; i.e., "The petition was filed on April 15, 1996

and was mailed from New York, New York."    We must reject this

contention, however, because it is contrary to the record.




Regs., makes the provisions of sec. 7502 inapplicable in the case
of foreign postmarks. Cf. sec. 301.7502-1(c)(1)(iii)(b), Proced.
and Admin. Regs., which applies to domestic postmarks not made by
the U.S. Postal Service.
                               - 7 -


     We also note that it has not been alleged, much less proven,

that the notice of deficiency was "addressed to a person outside

of the United States".   Accordingly, we have no basis upon which

to conclude that the petition was timely filed within the

alternate 150-day time period prescribed by section 6213(a).

     Conclusion

     Because petitioners did not file their petition with the

Court within the time period prescribed by section 6213(a), we

lack jurisdiction to redetermine petitioners' tax liability for

the taxable year in issue.   Accordingly, we must grant

respondent's motion to dismiss for lack of jurisdiction.4

     In order to give effect to the foregoing,



                               An order granting respondent's

                          motion and dismissing this case for

                          lack of jurisdiction will be entered.




     4
        Although petitioners cannot pursue their case in this
Court, they are not without a judicial remedy. Specifically,
they may pay the tax, file a claim for refund with the Internal
Revenue Service, and, if their claim is denied, sue for a refund
in the appropriate Federal District Court or the United States
Court of Federal Claims. McCormick v. Commissioner, 55 T.C. 138,
142 (1970).
