                  T.C. Memo. 2000-115



                UNITED STATES TAX COURT



     MICHAEL P. AND DOLORES A. GAM, Petitioners v.
      COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 13223-98.                Filed March 31, 2000.

     R sent a notice of deficiency for 1995 to Ps. This
notice of deficiency was mailed to the address used by Ps on
their 1996 tax return, the last tax return Ps filed before
the notice of deficiency was issued, except that R placed
three additional digits at the end of the otherwise-correct
ZIP Code. Ps did not receive this notice of deficiency.
About 7 months later, Ps received a copy of this notice of
deficiency from R’s Taxpayer Advocate.

     Held: Based on the evidence, the three additional
digits on the end of the ZIP Code in the address used to
mail the notice of deficiency did not affect the postal
processing of the notice of deficiency and, as a result, did
not render the address something other than Ps’ last known
address. Ps’ petition was not timely filed, and R’s motion
to dismiss is granted. See secs. 6212, 6213, I.R.C. 1986.


Michael P. and Dolores A. Gam, pro se.

Milton B. Blouke, for respondent.
                               - 2 -



              MEMORANDUM FINDINGS OF FACT AND OPINION

     CHABOT, Judge:   This matter is before us on respondent’s

motion to dismiss the instant case for lack of jurisdiction

because the petition was not filed within the time prescribed by

section 6213(a).1

     Respondent determined a deficiency in Federal individual

income tax against petitioners for 1995 in the amount of $2,821.

     The primary issue for decision is whether respondent’s use

of three additional digits at the end of petitioners’ nine-digit

ZIP Code in the address for the notice of deficiency effectively

resulted in the notice of deficiency’s not having being mailed to

petitioners’ last known address, within the meaning of section

6212(b)(1).

     Argument on the motion and an evidentiary hearing were held

at a trial session of the Court in Las Vegas, Nevada.    In

addition to the motion papers and a transcript of the

proceedings, the record includes a stipulation of facts,

exhibits, and posthearing memoranda.

                         FINDINGS OF FACT

     Some of the facts have been stipulated; the stipulations and


     1
      Unless indicated otherwise, all section,   chapter, and
subtitle references are to sections, chapters,   and subtitles of
the Internal Revenue Code of 1986 as in effect   for the period
beginning on the date the notice of deficiency   was mailed and
ending on the date the petition was filed.
                                - 3 -

the stipulated exhibits are incorporated herein by this

reference.

     When the petition was filed in the instant case, petitioners

resided in Henderson, Nevada.

     On October 22, 1997, respondent issued a notice of

deficiency to petitioners for 1995.     This notice of deficiency

was sent by certified mail to petitioners at “25521 La Mirada,

Laguna Hills, Ca. 92653-5316217.”   This address is hereinafter

sometimes referred to as the 12-digit ZIP Code address.

     On October 22, 1997, and until June 29, 1998, when

petitioners moved to Henderson, Nevada, their street address was

25521 La Mirada, Laguna Hills, California 92653-5316.     This

address is hereinafter sometimes referred to as petitioners’

correct address, or as the 9-digit ZIP Code address.     The only

difference between the two addresses is the addition of the

digits “217” to the end of the ZIP Code on the 9-digit ZIP Code

address.   The 9-digit ZIP Code address appears on petitioners’

1996 tax return, which was filed on April 15, 1997.     The 1996 tax

return was the last tax return petitioners filed before

respondent issued the notice of deficiency for 1995.

     Petitioners did not receive the certified mail notice of

deficiency, nor was the certified mail notice of deficiency

returned to respondent.   The U.S. Postal Service (hereinafter

sometimes referred to as the USPS) does not have any record of
                                - 4 -

delivery, nor does it have any record of article returned for a

certified letter mailed by respondent on October 22, 1997, to

petitioners’ correct address.

     On or before June 29, 1997, petitioners received from

respondent a Form CP-2000, dated June 25, 1997, proposing a 1995

deficiency in the amount of $4,625, and asking petitioners to

respond within 30 days.    This letter was addressed to petitioners

at the 12-digit ZIP Code address.

     On May 17, 1998, petitioners received a letter dated May 13,

1998, from respondent’s Taxpayer Advocate addressed to the 12-

digit ZIP Code address.    This letter included a copy of the

original notice of deficiency, part of which petitioners attached

to the petition filed in the instant case.    This was the first

time petitioners received a copy of the notice of deficiency.

     The petition in the instant case was filed on July 24, 1998,

which is 275 days after October 22, 1997, when the notice of

deficiency was mailed.    The envelope in which the petition was

sent to this Court is postmarked July 22, 1998, which is 273 days

after the notice of deficiency was mailed.

     The correct ZIP Code for the address 25521 La Mirada, Laguna

Hills, California, is not the 12-digit ZIP Code.    There is no

such ZIP Code as the 12-digit ZIP Code within the USPS system.

The correct ZIP Code for 25521 La Mirada, Laguna Hills,

California, is 92653-5316--the 9-digit ZIP Code address.
                               - 5 -

     Mail is machine-sorted and dispatched to USPS mail carriers

if the envelope has a bar code, a 5-digit ZIP Code, or a 9-digit

ZIP Code.   Mail is processed manually if the envelope does not

have a ZIP Code, if it has a 12- or 13-digit ZIP Code, or if it

is sent by certified mail.   Certified mail is processed

separately under an accountability system.

     The use of ZIP Codes by mailers is optional.



     When the notice of deficiency was mailed to petitioners, the

9-digit ZIP Code address was petitioners’ last known address.

     Respondent’s use of the 12-digit ZIP Code address for the

notice of deficiency in the instant case did not affect the

deliverability of the notice of deficiency, because that piece of

mail would in any event have been processed through an

accountability system because it was sent by certified mail.

     The notice of deficiency was addressed to petitioners at

their last known address.

                              OPINION

     Respondent contends that this Court does not have

jurisdiction of the instant case because (1) respondent mailed

the notice of deficiency to petitioners’ last known address and

(2) the petition was not filed within 90 days after respondent so

mailed the notice of deficiency.   Respondent contends that the

use of the 12-digit ZIP Code address did not prevent delivery of
                               - 6 -

the notice of deficiency.   Finally, respondent contends that,

even though petitioners did not receive the notice of deficiency

as mailed, “petitioners had actual oral notice that a deficiency

in income tax had been proposed against them for the 1995 income

tax year.”

     Petitioners contend they never received the notice of

deficiency until, after many efforts over many months, they

received a copy of the notice of deficiency attached to a letter

from respondent’s Taxpayer Advocate office.   In their written

objection to respondent’s motion, petitioners ask that we hold

that their petition was timely filed and that this Court has

jurisdiction of their case.

     In their opening statement at the evidentiary hearing on

respondent’s motion, petitioners contend that, because of their

efforts to get a copy of the notice of deficiency and

respondent’s lack of cooperation, the notice of deficiency should

be treated as having been mailed on May 13, 1998, the date on the

letter from respondent’s Taxpayer Advocate which included a copy

of the notice of deficiency; under these circumstances,

petitioners point out, their petition was timely filed.   In

addition, petitioners contend that respondent’s addition of three

digits to the ZIP Code of petitioners’ correct address may have

interfered with their receipt of the notice of deficiency.

     On brief, petitioners rest primarily on the contention that
                               - 7 -

this Court does not have jurisdiction because “the notice was

never actually mailed to the Petitioners, and the Respondent

offers no evidence that it was.”   Also, petitioners contend that

oral notification of the notice of deficiency is insufficient to

comply with section 6212(a).

     Thus, some of petitioners’ contentions lead them to conclude

that we do have jurisdiction of the instant case, while

petitioners’ other contentions lead them to conclude that we do

not have jurisdiction.

     We agree with respondent that we do not have jurisdiction

because the notice of deficiency is valid and the petition was

filed more than 90 days after notice of deficiency was mailed.

A. In General

     This Court’s jurisdiction to redetermine a deficiency (see

sec. 6214(a)2) depends on respondent’s sending a valid notice of




     2
      SEC. 6214. DETERMINATIONS BY TAX COURT.

          (a) Jurisdiction as to Increase of Deficiency,
     Additional Amounts, or Additions to the Tax.--Except as
     provided by section 7463, the Tax Court shall have
     jurisdiction to redetermine the correct amount of the
     deficiency even if the amount so redetermined is greater
     than the amount of the deficiency, notice of which has been
     mailed to the taxpayer, and to determine whether any
     additional amount, or any addition to the tax should be
     assessed, if claim therefor is asserted by the Secretary at
     or before the hearing or a rehearing.
                               - 8 -

deficiency to a taxpayer (see sec. 6212(a)3) and that taxpayer’s

filing with this Court a timely petition that we redetermine the

deficiency determined against that taxpayer in that notice of

deficiency (see sec. 6213(a)4).   See Normac, Inc. & Normac,

International v. Commissioner, 90 T.C. 142, 147 (1988).

Accordingly, if respondent issued a valid notice of deficiency



     3
      Sec. 6212 provides, in pertinent part, as follows:

     SEC. 6212. NOTICE OF DEFICIENCY.

          (a) In General.--If the Secretary determines that there
     is a deficiency in respect of any tax imposed by subtitle A
     [relating to income taxes] * * * he is authorized to send
     notice of such deficiency to the taxpayer by certified mail
     or registered mail.

          (b) Address for Notice of Deficiency.--

               (1) Income and gift taxes and certain excise
          taxes.--In the absence of notice to the Secretary under
          section 6093 of the existence of a fiduciary
          relationship, notice of a deficiency in respect of a
          tax imposed by subtitle A * * *, if mailed to the
          taxpayer at his last known address, shall be sufficient
          for purposes of subtitle A * * * and this chapter
          [chapter 63, relating to assessment] * * *


     4
      Sec. 6213(a) provides, in pertinent part, as follows:

     SEC. 6213.   RESTRICTIONS APPLICABLE TO DEFICIENCIES;
                  PETITION TO TAX COURT.

          (a) Time for Filing Petition and Restriction on
     Assessment.--Within 90 days * * * after the notice of
     deficiency authorized in section 6212 is mailed * * *, the
     taxpayer may file a petition with the Tax Court for a
     redetermination of the deficiency. * * *
                              - 9 -

and the petition is untimely, then the petition will have to be

dismissed for lack of jurisdiction.   See, e.g., Keeton v.

Commissioner, 74 T.C. 377, 379 (1980).   However, if jurisdiction

is also lacking because of respondent’s failure to issue a valid

notice of deficiency, then the case will be dismissed on the

latter ground, rather than for lack of a timely filed petition.

See DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967);

Keeton v. Commissioner, 74 T.C. at 379, and cases there cited;

see also Mulvania v. Commissioner, 769 F.2d 1376 (9th Cir. 1985),

affg. T.C. Memo. 1984-98.

B.   Last Known Address

     Because of the Court’s concern about jurisdiction, we

informally raised with the parties5 the question of whether

respondent’s use of a 12-digit ZIP Code might have an impact on

whether respondent sent the notice of deficiency to petitioners’

last known address.

     A notice of deficiency serves the purpose of the statutory

scheme if (1) it provides notice to the taxpayer that the

Commissioner has determined a deficiency against the taxpayer,

and (2) it is received by the taxpayer in time to provide an



     5
      It is well settled that this Court can proceed in a case
only if we have jurisdiction and that any party, or the Court sua
sponte, can question jurisdiction at any time, even after the
case has been tried and briefed. See Normac, Inc. & Normac
International v. Commissioner, 90 T.C. 142, 146-147 (1988); Kahle
v. Commissioner, 88 T.C. 1063 n.3 (1987), and cases there cited.
                              - 10 -

opportunity to petition this Court to redetermine the deficiency.

See, e.g., Mulvania v. Commissioner, 81 T.C. 65, 67 (1983);

Frieling v. Commissioner, 81 T.C. 42, 53 (1983).   If the taxpayer

files a timely petition (Frieling), or receives the notice of

deficiency early enough to file a timely petition, even if the

taxpayer does not file a timely petition (Mulvania), then the

notice of deficiency has satisfied these requirements.

     In addition, the statute provides that the mailing of a

notice of deficiency to a taxpayer’s last known address, within

the meaning of section 6212(b)(1), is a safe harbor assuring

respondent that the notice is valid for purposes of section

6212(a), even if the notice is not received by the taxpayer

before the 90-day petition period has run.   See DeWelles v.

United States, 378 F.2d at 40; Zenco Engineering Corp. v.

Commissioner, 75 T.C. 318, 321-322 (1980), affd. without

published opinion 673 F.2d 1332 (7th Cir. 1981).

     In the instant case, the parties have stipulated that

petitioners did not receive the notice of deficiency that was

mailed on October 22, 1997.   Petitioners finally received a copy

of this notice of deficiency on May 17, 1998, long after the

expiration of the 90-day petition period.

     The parties’ stipulations make it clear, and we have found,

that the 9-digit ZIP Code address was petitioners’ last known

address.   The address used by respondent for the notice of
                              - 11 -

deficiency (the 12-digit ZIP Code address) differed from the last

known address only in that the former included three additional

digits at the end of the ZIP Code.

     The unrebutted testimony of a USPS employee who has

management responsibility for, and extensive experience with, the

USPS’s ZIP Code system makes it plain that the three additional

digits at the end of the ZIP Code would not have had any effect

on the deliverability of the notice of deficiency.   This

testimony is buttressed by the parties’ stipulation of

petitioners’ receipt of a June 1997 letter (the CP-2000) that had

been addressed to the 12-digit ZIP Code address, and the parties

stipulation of petitioners’ receipt of a May 1998 letter (from

respondent’s Taxpayer Advocate) that had been addressed to the

12-digit ZIP Code address.

     Thus, although the three additional digits at the end of the

ZIP Code were not properly part of petitioners’ last known

address, these digits did not affect the deliverability of mail

to petitioners.   That is, the three additional digits would not

have affected the USPS’s processing of mail, and mail which

included the three additional digits made its way in a timely

manner to petitioners’ mailbox both before and after the October

22, 1997, notice of deficiency.   Under these circumstances, it

would be an exaltation of trivia over both form and substance to

hold that the three additional digits affect the status of the
                              - 12 -

notice of deficiency.

     In Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990),

affg. T.C. Memo. 1989-676, in addressing the deficiency notice,

the Commissioner added “c/o Jessie Vogel, Esq.”, to the address

that the taxpayer had last reported to the IRS.   We held that the

Commissioner mailed the notice to the taxpayer at his “last known

address”, finding that the addition of “c/o Jessie Vogel, Esq.”

to the address on the notice of deficiency was mere surplusage

having no effect on its proper mailing or delivery.

     Accordingly, consistent with our precedents,6 we hold, for

respondent, that respondent mailed the notice of deficiency by

certified mail on October 22, 1997, to petitioners at their last

known address, within the meaning of section 6212(b)(1).

C. Other Contentions

     1. Notice of Deficiency Not Sent

     At the end of the evidentiary hearing, the Court directed

the parties to file one round of briefs, respondent opening and

petitioners answering.   In petitioners’ answering brief they

raise for the first time the contention that respondent failed to

demonstrate that the notice of deficiency was mailed to


     6
      To the same effect are Pickering v. Commissioner, T.C.
Memo. 1998-142; Nationwide Power Corp. v. Commissioner, T.C.
Memo. 1992-485; Iacino v. Commissioner, T.C. Memo. 1992-111;
Watkins v. Commissioner, T.C. Memo. 1992-6; Davis v.
Commissioner, T.C. Memo. 1990-473; Greenstein v. Commissioner,
T.C. Memo. 1990-405; compare Wilson v. Commissioner, T.C. Memo.
1997-515; Violette v. Commissioner, T.C. Memo. 1994-173.
                             - 13 -

petitioners.

     Although the parties cannot confer jurisdiction on this

Court by merely stipulating or otherwise agreeing that we have

jurisdiction (see Romann v. Commissioner, 111 T.C. 273, 281

(1998) and cases there cited), they are permitted to effectively

stipulate as to matters of fact on the basis of which we may

conclude that we have jurisdiction.

     At the start of the evidentiary hearing, the parties

offered, and the Court received, stipulations and stipulated

exhibits, including the following:

          9. On October 22, 1997, the Internal Revenue Service
     located at Fresno, California issued a statutory notice of
     deficiency to the petitioners for the 1995 taxable year.

          10. The statutory notice of deficiency dated October
     22, 1997, for the 1995 taxable year, was addressed to the
     petitioners at 25521 La Mirada, Laguna Hills, Ca. 92653-
     5316217. The statutory notice of deficiency was mailed by
     certified mail to petitioners at the above address.
     Attached an [sic] marked as Exhibit 7-J is a copy of the
     certified mailing list.

          11. The petitioners stipulate that their street
     address on October 22, 1997, and until June 29, 1998, when
     they moved to Henderson Nevada, was 25521 La Mirada, Laguna
     Hills, Ca. 92653-5316. This was the address as shown on
     their last filed tax return (1996 tax return filed April 15,
     1997) prior to the issuance of the notice of deficiency on
     October 22, 1997.

          12. The petitioners did not receive the notice of
     deficiency issued on October 22, 1997, for the 1995 taxable
     year by certified mail.
                                - 14 -



      These stipulations are binding, unless the parties agree

otherwise or the Court relieves a party from the binding effect

“where justice requires.”   Rule 91(e).7

      The parties have not informed the Court of any agreement to

modify the binding effect of the plain statements in stipulation

10 and the corroborative statements in stipulations 9, 11, and

12.   Petitioners have not asked the Court to relieve them from

stipulation 9, 10, 11, or 12.    We do not find anything in the

record in the instant case that suggests that justice requires

that we relieve petitioners from any such binding effect.

      Accordingly, the parties’ stipulations resolve this matter--

the notice of deficiency was issued and mailed to petitioners by

certified mail on October 22, 1997.      See, e.g., Bail Bonds by


      7
       RULE 91. STIPULATIONS FOR TRIAL

               *     *      *     *      *     *     *

           (e) Binding Effect: A stipulation shall be treated, to
      the extent of its terms, as a conclusive admission by the
      parties to the stipulation, unless otherwise permitted by
      the Court or agreed upon by those parties. The Court will
      not permit a party to a stipulation to qualify, change, or
      contradict a stipulation in whole or in part, except that it
      may do so where justice requires. A stipulation and the
      admissions therein shall be binding and have effect only in
      the pending case and not for any other purpose, and cannot
      be used against any of the parties thereto in any other case
      or proceeding.

     Unless indicated otherwise, all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                - 15 -

Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1547 (9th

Cir. 1987), affg. T.C. Memo. 1986-23.

     Petitioners cite five published opinions in the parts of

their brief dealing with the issue of whether the notice of

deficiency was mailed.   In United States v. Williams, 161 F.

Supp. 158 (E.D.N.Y. 1958), one of the opinions that petitioners

cite, there were stipulations about numerous documents but none

about a notice of deficiency.     See id. at 159.    The opinion in

Williams relates that Government counsel specifically argued on

brief that the Commissioner was not required to send a notice of

deficiency.   See id. at 160.   The District Court rejected that

argument and ruled for the taxpayer.      See id. at 160-161.   In

United States v. Ball, 326 F.2d 898 (4th Cir. 1964), another

opinion cited by petitioners, the parties thereto stipulated that

there had been an assessment of income tax followed by a notice

and demand for payment under section 6303.      See id. at 899-900.

They also stipulated that “Said assessment, with interest

thereon, as allowed by law, remains due and owing to the United

States of America.”   Id. at 902 n.5.     The District Court granted

summary judgment to the Government.      On appeal, the taxpayer’s

beneficiaries8 raised the question of whether a notice of


     8
      The Government sued to enforce its assessment lien against
the cash surrender values of two of the taxpayer’s life insurance
policies. The taxpayer had gone to Mexico and stayed there. The
appellants were beneficiaries under the policies. See United
                                                   (continued...)
                              - 16 -

deficiency had been sent to the taxpayer.    See id. at 902.   The

Court of Appeals rejected the Government counsel’s contention

that the above-noted stipulation amounted to an agreement that

the assessment was valid, held that a valid notice of deficiency

was essential to the validity of the assessment and thus was

jurisdictional in any suit to enforce the assessment lien,

reversed the grant of summary judgment, and remanded for further

proceedings.   See id. at 902-903.    The three other opinions cited

by petitioners do not discuss the role of stipulations.

     All five of the opinions that petitioners cite are

distinguishable from the instant case in that the parties in the

instant case have laid to rest the important factual matter that

the Court of Appeals focused on in Ball; i.e., in the instant

case the parties stipulated that the notice of deficiency was

mailed to petitioners by certified mail on October 22, 1997.

     We conclude, and we have found, based on the parties’

stipulations, that respondent has satisfactorily demonstrated

that the notice of deficiency was mailed to petitioners by

certified mail on October 22, 1997.

     2.   Start of 90-Day Period

     In their supplemental written objection to respondent’s

motion to dismiss, and in their opening statement at the



     8
      (...continued)
States v. Ball, 326 F.2d 898, 899 (4th Cir. 1964)
                              - 17 -

evidentiary hearing, petitioners contend that the 90-day period

for filing their petition should start on May 13, 1998, the date

of the letter from respondent’s Taxpayer Advocate which included

a copy of the notice of deficiency.

     Petitioners did not include this contention in their

posthearing brief.   We treat this as, in effect, petitioners’

abandonment of this contention.   See subpars. (4) and (5) of Rule

151(e); Sundstrand Corp. v. Commissioner, 96 T.C. 226, 344

(1991); Money v. Commissioner, 89 T.C. 46, 48 (1987).   In any

event, the general rule is that the date of receipt, if any, is

irrelevant for purposes of applying the 90-day requirement.    See

Wilson v. Commissioner, 564 F.2d 1317, 1319 (9th Cir. 1977),

affg. in part and dismissing in part unreported orders of this

Court.   We have not found anything in the record that would cause

us to conclude that the instant case presents any exception to

this general rule.

     Under section 6213(a) and Rule 25(a)(1), the first day of

the 90-day period is October 23, 1997, the day after the notice

of deficiency was mailed to petitioners.   The petition was filed

on July 24, 1998, long after the end of the 90-day period.

D. Conclusions

     Respondent sent a valid notice of deficiency to petitioners.

Petitioners did not file a timely petition.   Because the petition

was not filed timely, this Court does not have jurisdiction over
                                - 18 -

the instant case.

     Under the circumstances, we need not and do not resolve the

parties’ dispute about an asserted oral notification of the

notice of deficiency.   See McKay v. Commissioner, 89 T.C. 1063,

1069 n.7 (1987), and cases there cited, affd. 886 F.2d 1237 (9th

Cir. 1989).

     Although petitioners cannot pursue their case in this Court,

they are not without a judicial remedy.   Specifically,

petitioners may pay the tax, file a claim for refund with the

Internal Revenue Service, and if their claim is denied, then sue

for a refund in the appropriate Federal District Court or the

U.S. Court of Federal Claims.    See Armstrong v. Commissioner, 15

F.3d 970, 973 n.2 (10th Cir. 1994), affg. T.C. Memo. 1992-328;

McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).    We do

not express any view in the instant case as to whether our

opinion in Gam v. Commissioner, T.C. Summary Opinion 1999-61,

should have any preclusive or other effect in any such refund

suit.

     We hold for respondent.

                                Respondent’s motion to dismiss will

                          be granted, and an appropriate order

                          will be entered dismissing the instant

                          case for lack of jurisdiction.
