                  T.C. Summary Opinion 2003-76



                      UNITED STATES TAX COURT



                  MARION WARREN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18558-02S.            Filed June 17, 2003.


     Marion Warren, pro se.

     Nancy E. Hooten, for respondent.


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

the provisions of section 7463.1   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at the time that the petition
was filed, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 2 -

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

Dismiss for Lack of Jurisdiction on the ground that the petition

was not filed within the time prescribed by section 6330(d) or

section 7502.   As explained below, we shall grant respondent’s

motion to dismiss.

Background

     On Friday, October 18, 2002, the Internal Revenue Service

Appeals Office in Atlanta, Georgia, issued to petitioner a Notice

Of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330 regarding petitioner’s Federal tax liabilities

for 1988 and 1991.   The notice of determination, which was dated

Monday, October 21, 2002, was sent to petitioner by certified

mail addressed to him at P.O. Box 692, Savannah, Georgia 31402

(the P.O. box address).   Petitioner actually received the notice

of determination no later than Monday, October 28, 2002.

     At the time that respondent mailed the notice of

determination, petitioner resided at 1437 Belaire Drive,

Savannah, Georgia 31415 (the street address).   Generally,

petitioner used his P.O. box address, rather than his street

address, for business purposes, including his dealings with the

Internal Revenue Service.   For example, on Form 12153, Request

for a Collection Due Process Hearing, petitioner listed his

address as the P.O. box address.
                               - 3 -

     The notice of determination informed petitioner that if he

wanted to dispute respondent’s determination in court, then he

must file a petition with this Court “within 30 days from the

date of this letter.”

     On November 13, 2002, petitioner purchased a U.S. Postal

Service Postal Money Order in the amount of $60.    The Postal

Money Order was payable to “United States Tax Court” and was

purchased to pay the filing fee for commencing a lien or levy

action in this Court.   See Rule 331(c).   Petitioner listed his

address on the Postal Money Order as the P.O. box address.

     On Friday, November 29, 2002, the Court received and filed a

Petition for Lien or Levy Action Under Code Section 6320(c) or

6330(d).   The petition, which is undated, arrived at the Court in

a properly addressed envelope that identifies the P.O. box

address as the return address.2   Significantly, the envelope,

which was mailed to the Court by U.S. Postal Service Express

Mail, bears a legible postmark date of Wednesday, November 27,

2002.3

     Shortly after this case was calendared for trial, respondent

moved to dismiss the petition for lack of jurisdiction on the

     2
        In contrast, petitioner used his street address on the
petition itself.
     3
        We note that Thursday, Nov. 28, 2002, was Thanksgiving
Day, a legal holiday in the District of Columbia, see Rule
25(b), and that there was no mail delivery to the Court on that
day.
                                - 4 -

ground that the petition was not timely filed.    Thereafter,

respondent’s motion was called for hearing at the Court’s trial

session in Atlanta, Georgia.   Counsel for respondent appeared at

the hearing and offered argument in support of the motion to

dismiss.   Petitioner appeared and argued against the motion.

Discussion

     When the Appeals Office issues a notice of determination to

a taxpayer following an administrative hearing regarding a final

notice of intent to levy, section 6330(d)(1) provides that the

taxpayer will have 30 days following the issuance of such notice

to file a petition for review with the Tax Court or, if the Tax

Court does not have jurisdiction over the underlying tax

liability, with a Federal District Court.    See Offiler v.

Commissioner, 114 T.C. 492, 498 (2000).     We have held that this

Court’s jurisdiction under sections 6320 and 6330 depends on the

issuance of a valid determination letter and the filing of a

timely petition for review.    See Sarrell v. Commissioner, 117

T.C. 122, 125 (2001); Moorhous v. Commissioner, 116 T.C. 263, 269

(2001); Offiler v. Commissioner, supra at 498; see also Rule

330(b).

     Petitioner has not challenged the validity of the notice of

determination.   We observe that the notice was mailed to the same

address as that listed by petitioner on:    (1) His Request for a

Collection Due Process Hearing, (2) his Postal Money Order used
                                 - 5 -

to pay the filing fee, and (3) the envelope bearing the petition.

Accordingly, it appears that the notice of determination was

mailed to petitioner at his last known address.   See sec.

6330(a)(2)(C).   Regardless, petitioner actually received the

notice of determination no later than Monday, October 28, 2002,

which was sufficient time to file a timely petition with this

Court, as evidenced by the fact that petitioner purchased the

Postal Money Order on November 13, 2002.   Cf. Mulvania v.

Commissioner, 81 T.C. 65, 67-68 (1983) (an erroneously addressed

notice of deficiency is nevertheless valid if the taxpayer

receives actual notice of the Commissioner’s determination in a

timely fashion; i.e., without prejudicial delay); Estate of

Greenwood v. Commissioner, T.C. Memo. 2003-98 (same).   Therefore,

under these circumstances, the sole issue for decision is whether

the petition was timely filed.

     The record in this case demonstrates that the petition was

not filed within the 30-day period prescribed in section

6330(d)(1)(A).   Here we compute the 30-day period by reference to

the date appearing on the notice of determination (Monday,

October 21, 2002) rather than the earlier date on which the

notice was deposited with the Postal Service (Friday, October 18,

2002).   See Loyd v. Commissioner, T.C. Memo. 1984-172 (date

appearing on the notice of deficiency was the date of mailing for

purposes of section 6213(a)); Jones v. Commissioner, T.C. Memo.
                               - 6 -

1984-171 (same); see also Lundy v. Commissioner, T.C. Memo. 1997-

14, discussing the various possible dates that a deficiency

notice might be deemed to be mailed.

     Using Monday, October 21, 2002, as the date of mailing of

the notice of determination, then the 30-day period for timely

filing a petition with this Court expired on Wednesday, November

20, 2002, which date was not a legal holiday in the District of

Columbia.   However, the petition was not received and filed by

the Court until Friday, November 29, 2002, the 39th day after the

mailing of the notice of determination.   Moreover, the envelope

in which the petition was received at the Court bears a postmark

date of Wednesday, November 27, 2002, the 37th day after the

mailing of the notice of determination.   See sec. 7502(a).    It

follows that the petition was late filed and that we must

therefore dismiss this case for lack of jurisdiction.   See McCune

v. Commissioner, 115 T.C. 114 (2000).

     Notwithstanding the fact that petitioner cannot pursue his

case in this Court, petitioner may perhaps have a legal remedy.

In this regard, we observe that the October 21, 2002, notice of

determination did not sustain respondent’s proposed levy action

because, as of the date of the notice, petitioner’s tax

liabilities for the years in issue had been fully paid,

principally through the application of setoffs made pursuant to

section 6402(a).   See Bullock v. Commissioner, T.C. Memo. 2003-5
                                 - 7 -

(an offset under section 6402 does not constitute a levy action).

If petitioner thinks that he has overpaid his liabilities, as he

has alleged in the petition, then it is possible that he may be

able to file a claim for refund with the Internal Revenue Service

and, if the claim is denied, sue for a refund in the Federal

District Court or the Court of Federal Claims.       See McCormick v.

Commissioner, 55 T.C. 138, 142 (1970).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,



                                         An order of dismissal for

                                 for lack of jurisdiction will

                                 be entered.
