                  T.C. Summary Opinion 2007-200



                     UNITED STATES TAX COURT



                  JOHN S. BURKE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14584-07S.             Filed November 26, 2007.


     John S. Burke, pro se.

     Carolyn Schenck, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1    Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
        Unless otherwise indicated, all subsequent 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 -

other court, and this opinion shall not be treated as precedent

for any other case.

     This matter is before the Court on respondent’s Motion To

Dismiss For Lack Of Jurisdiction, filed August 17, 2007.

Respondent moves to dismiss this case on the ground that the

petition was not filed within the time prescribed by section

6213(a) or 7502.   For reasons discussed hereinafter, we shall

deny respondent’s motion.

                            Background

     At the time that the petition was filed, John S. Burke

(petitioner) resided in southern California.

     On March 22, 2007, respondent’s Appeals Office at the

Austin, Texas Service Center sent petitioner a notice of

deficiency.   The notice of deficiency, which was sent to

petitioner by certified mail addressed to him at his last known

address, determined a deficiency in income tax for the taxable

(calendar) year 2005 of $13,690 and an accuracy-related penalty

under section 6662(a) of $1,199.60.    Petitioner received the

notice of deficiency in late March or early April 2007.

     The first page of the notice of deficiency included the

following statement:   “If you want to contest this determination

in court before making any payment, you have 90 days from the

date of this letter * * * to file a petition with the United

States Tax Court for a redetermination of the deficiency.”
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     The first page of the notice of deficiency also included the

following statement:   “Last Day to File a Petition with the

United States Tax Court:   June 20, 2007”.

     On June 26, 2007, petitioner filed a petition with this

Court seeking a redetermination of the deficiency and penalty

determined by respondent in the notice of deficiency.    The

petition, which is dated June 19, 2007, arrived at the Court by

priority first-class mail in an envelope bearing a U.S. Postal

Service postmark date of June 21, 2007.    The June 21 date was

also the date that petitioner actually deposited the envelope

into the mail at the post office in Venice Beach, California.

     As indicated, respondent filed a Motion To Dismiss For Lack

Of Jurisdiction on August 17, 2007.    Petitioner promptly filed an

objection to respondent’s motion.    Respondent followed with a

reply to petitioner’s objection.    Thereafter, a hearing on

respondent’s motion was held in Los Angeles, California, on

October 30, 2007.   Both parties appeared at the hearing and

presented argument in support of their respective positions.

Respondent also filed a Declaration by the case processor in the

Appeals Office at the Austin, Texas, Service Center who had been

responsible for the mailing of the notice of deficiency.
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                              Discussion

General Principles

     This Court’s jurisdiction to redetermine a deficiency in

income tax depends on 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).     Section 6212(a) expressly

authorizes respondent, after determining a deficiency, to send a

notice of deficiency to the taxpayer by certified or registered

mail.    It is sufficient for jurisdictional purposes if respondent

mails the notice of deficiency to the taxpayer at the taxpayer's

“last known address”.    Sec. 6212(b); Frieling v. Commissioner, 81

T.C. 42, 52 (1983).     The taxpayer, in turn, has 90 days, or 150

days if the notice is addressed to a person outside the United

States, to file a petition with this Court for a redetermination

of the contested deficiency.    Sec. 6213(a).   By virtue of section

7502, a petition that is timely mailed is deemed to be timely

filed.

The Parties’ Positions

     It is clear in the present case that respondent mailed the

notice of deficiency to petitioner on March 22, 2007.    See

Magazine v. Commissioner, 89 T.C. 321, 327 n.8 (1987) (holding

that Postal Service Form 3877 represents direct evidence of the

date of mailing of the notice of deficiency); see also Clough v.
                                - 5 -

Commissioner, 119 T.C. 183, 187-188 (2002) (overruling various

challenges by a taxpayer to the introduction into evidence by the

Commissioner of Postal Service Form 3877).   Respondent relies on

the fact that the 90th day after the date of mailing of the

notice of deficiency was June 20, 2007, a Wednesday.   In

respondent’s view, because the petition was mailed to the Court

on June 21, 2007, the petition was not timely filed, and this

case should therefore be dismissed for lack of jurisdiction.

     Petitioner does not seriously challenge the mailing date of

the notice of deficiency.   Rather, petitioner contends that the

notice of deficiency is dated March 24, 2007, and not March 22,

2007, and he relies on the statement in the notice that he had

“90 days from the date of this letter * * * to file a petition

with the United States Tax Court for a redetermination of the

deficiency.”   Petitioner correctly states that the 90th day after

March 24, 2007, was Friday, June 22, 2007.   In petitioner’s view,

because the petition was mailed to the Court on June 21, 2007,

and further because the envelope containing the petition was

postmarked with that same date, the petition was timely filed and

respondent’s motion should therefore be denied.

     Respondent vigorously takes issue with petitioner’s

contention.    First, respondent rejects petitioner’s premise that

the notice of deficiency is dated March 24, 2007.   Second, even

if the notice is so dated, respondent relies on the fact that the
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notice expressly advised petitioner that “Last Day to File a

Petition with the United States Tax Court: June 20, 2007”.

     We begin our analysis with respondent’s second argument.

Section 3463 of the 1998 Act

     Section 3463(a) of the Internal Revenue Service

Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.

767, which was enacted on July 22, 1998, requires:

     The Secretary of the Treasury or the Secretary’s delegate
     shall include on each notice of deficiency under section
     6212 of the Internal Revenue Code of 1986 the date
     determined by such Secretary (or delegate) as the last day
     on which the taxpayer may file a petition with the Tax
     Court.

Although section 3463(a) of the 1998 Act has not been

incorporated into the Internal Revenue Code, it nevertheless has

the force of law because it is part of the Statutes at Large.

Smith v. Commissioner, 114 T.C. 489, 491 (2000), affd. 275 F.3d

912 (10th Cir. 2001).

     Section 3463 of the 1998 Act amended section 6213(a) by

adding at the end thereof the following sentence, effective for

notices mailed after December 31, 1998:   “Any petition filed with

the Tax Court on or before the last date specified for filing

such petition by the Secretary in the notice of deficiency shall

be treated as timely filed.”

     The legislative history of section 3463 of the 1998 Act

makes clear that the Congress wished to ensure that (1) taxpayers

received assistance from the Commissioner in determining the
                              - 7 -

period within which they were obliged to file a petition for

redetermination with the Tax Court and that (2) those taxpayers

could rely on the computation of that period by the Commissioner.

S. Rept. 105-174, at 90 (1998), 1998-3 C.B. 537, 626; see H.

Rept. 105-364 (Part 1), at 71 (1997), 1998-3 C.B. 373, 443;

see also Rochelle v. Commissioner, 116 T.C. 356, 362-363 (2001),

affd. per curiam 293 F.3d 740 (5th Cir. 2002).

     Thus, if the Commissioner makes a mistake in computing the

filing period by overstating it, the last sentence of section

6213(a) serves to enlarge the period of time within which a

taxpayer would otherwise have to file a petition for

redetermination with this Court.   On the other hand, the

Commissioner’s mistake in computing the filing period by

understating it does not serve to shorten the period of time

prescribed by law within which a petition must be filed.    Cf.

Bush v. Commissioner, T.C. Memo. 2002-33 (notice of deficiency

specifying July 4 as the last date to file a petition ignored the

provisions of section 7503 regarding time for performance of acts

where the last day falls on Saturday, Sunday, or legal holiday),

affd. 51 Fed. Appx. 422 (4th Cir. 2002).

     In short, the 90th day after March 24, 2007, was Friday,

June 22, 2007, and by no administrative fiat in the notice of

deficiency may respondent make that day any earlier.
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Date of the Notice of Deficiency

     We turn now to respondent’s first argument, i.e., that the

notice of deficiency is dated March 22, 2007, and not March 24,

2007, as petitioner contends.

     At the hearing on respondent’s motion, petitioner produced

the original notice of deficiency, and the Court examined it.2

The date of the notice is reasonably legible and it certainly

looks like March 24, 2007.    However, in using a magnifying glass

and a high-powered halogen light to examine the date, it appears

that respondent originally stamped the notice March 21, 2007, and

then restamped it March 22, 2007.   This interpretation is

consistent with the Declaration of respondent’s employee who was

responsible for the mailing of the notice.

     The stamp-over of the date on the notice of deficiency had

no effect on the legibility of either the month or the year or

the first digit of the day.   However, the stamp-over of the “1”

and the “2” of the second digit of the day ended up producing

what clearly looks like a “4” to the unaided eye.

     In Loyd v. Commissioner, T.C. Memo. 1984-172, and Jones v.

Commissioner, T.C. Memo. 1984-171, the Court held that the

taxpayers were entitled to rely on the date stamped on the notice

of deficiency as to its mailing date, even though the notice was


     2
        Petitioner did not retain the envelope containing the
notice of deficiency, and there is nothing in the record to
indicate whether the envelope in which the notice was mailed bore
a postmark.
                                - 9 -

actually mailed on an earlier date.     In other words, the date

appearing on the notice of deficiency was deemed to be the date

of mailing for purposes of section 6213(a).     See Lundy v.

Commissioner, T.C. Memo. 1997-14 (discussing Loyd and Jones in

the context of the Court’s jurisprudence regarding its

jurisdiction).

     Respondent seeks to distinguish Loyd v. Commissioner, supra,

and Jones v. Commissioner, supra, by relying on an earlier case,

Meader v. Commissioner, T.C. Memo. 1982-288, wherein the Court

granted the Commissioner’s jurisdictional motion and dismissed

the case on the ground that the petition had not been filed

within 90 days of the date of mailing of the notice of

deficiency.   Respondent argues that the date appearing on the

notices of deficiency in Jones and Loyd was “clearly legible”,

whereas the date appearing on the notice in Meader was “smudged”,

so that the taxpayer was not entitled to rely on it.

     In Meader v. Commissioner, supra, the notice of deficiency

was mailed on April 6, 1981.   The petition was not timely filed

as measured by that date.    However, the petition was filed within

90 days of April 8, 1981, and the taxpayers argued that the date

stamped at the top of the notice of deficiency was April 8, 1981,

rather than April 6, 1981.   The Court acknowledged that the date

stamped on the notice was “somewhat smudged, and a cursory

examination of it might create the mistaken belief that the date
                                - 10 -

is April 8.   However, closer scrutiny clearly reveals that the

chronologically earlier date is the correct one.”

     In the instant case, we do not agree with respondent that

the date stamped on the notice of deficiency presents a “patent

ambiguity” such that petitioner was not entitled to rely on his

reading of that date.    Rather, we think that petitioner’s reading

was eminently reasonable.    Indeed, as previously stated, the date

stamped on the notice appears to the unaided eye to be March 24,

2007, and it is only upon close examination, using a magnifying

glass and a powerful beam of light, that ambiguity arises.    In

short, the date stamped on the notice of deficiency does not

invite “closer scrutiny”, thereby making respondent’s reliance on

Meader v. Commissioner, supra, inapposite.

                              Conclusion

     In conclusion, the date of March 24, 2007, shall be treated

as the date of mailing of the notice of deficiency for purposes

of section 6213(a).     See Loyd v. Commissioner, supra; Jones v.

Commissioner, supra.     Because the petition was mailed to the

Court within 90 days of that date, the petition was timely filed,

see sec. 7502(a), and this case may go forward.    Accordingly, we

shall issue an order (1) denying respondent’s Motion To Dismiss

For Lack Of Jurisdiction, filed August 17, 2007, and (2)

directing respondent to file an answer to the petition.
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To give effect to the foregoing,



                              An appropriate order

                         will be issued.
