                        T.C. Memo. 1998-301



                      UNITED STATES TAX COURT



            ROBERT AND DIANA ROBERTS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22985-97.                    Filed August 19, 1998.



     Edward A. Rose, Jr., for petitioners.

     T. Ian Russell, for respondent.


                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Chief Special

Trial Judge Peter J. Panuthos, pursuant to the provisions of

section 7443A(b)(4) and Rules 180, 181, and 183.1    The Court




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

agrees with and adopts the opinion of the Special Trial Judge,

which is set forth below.



                OPINION OF THE SPECIAL TRIAL JUDGE

     PANUTHOS, Chief Special Trial Judge:   This matter is before

the Court on respondent's motion to dismiss for lack of

jurisdiction.   The issue for decision is whether petitioners are

entitled to the 150-day period for filing a petition with this

Court as provided in section 6213(a).

Background

     The material facts in this case are not in dispute.   On July

31, 1997, respondent mailed a notice of deficiency to petitioners

regarding their 1991, 1992, and 1993 Federal income tax returns.

Duplicate notices of deficiency were mailed to petitioners' home

address at 14615 Wood Road, Riverside, California, and petitioner

Robert Roberts' (hereinafter petitioner) business address at

18856 Van Buren Boulevard, Riverside, California.2   Petitioner

received one of the duplicate notices of deficiency at his

business on August 2, 1997.   The record does not reflect whether

the notice of deficiency mailed to petitioners' residence was

received by them, nor is there any indication that said notice

was returned to respondent undelivered.


     2
          The jointly filed Federal income tax returns in issue
reflected petitioner Robert Roberts' business address (18856 Van
Buren Boulevard).
                                  - 3 -

       Respondent determined the following deficiencies, additions

to tax, and penalties for each year:

                                  Additions to Tax    Penalties
Year        Deficiency            Sec. 6651(a)(1)    Sec. 6662(a)

1991         $32,847                  $8,011            $6,409
1992           7,978                   1,881             1,545
1993           5,612                   1,403             1,122


The notice of deficiency states in pertinent part:

            If you want to contest this determination in court
       before making any payment, you have 90 days from the
       date of this letter (150 days if addressed outside the
       United States) to file a petition with the United
       States Tax Court for a redetermination of the
       deficiency. You can get a copy of the rules for filing
       a petition and a petition form you can use by writing
       to the address below.

                         United States Tax Court
                          400 Second Street, NW
                           Washington, DC 20217

       Upon receipt of the notice of deficiency at his office on

August 2, 1997, petitioner opened and read the notice.    He then

called his accountant and advised the accountant of its receipt.

Pursuant to that communication, the accountant picked up the

notice from petitioner's business office soon thereafter.    On

August 3, 1997, petitioner left the United States for Akumal,

Mexico.    He returned to the United States on November 4, 1997.

       While petitioner was in Mexico, his accountant prepared the

petition.    Petitioner periodically talked with his wife and

persons in his office while he was away; however, he did not have

any conversations relating to the notice of deficiency or the
                                 - 4 -

need to file a petition.     Soon after his return to the United

States on November 4, 1997, petitioner looked through his

accumulated mail and found the petition prepared by his

accountant.   Petitioner contacted his accountant for instructions

on how to execute the petition.     Petitioner had a discussion with

the accountant about the above-quoted language in the notice of

deficiency.   The accountant instructed petitioner to sign, date,

and mail the petition.     Petitioner signed the petition and placed

a date of August 30, 1997, next to his signature.    Petitioner

Diana Roberts also signed the petition, placing the date of

August 30 next to her signature.    Petitioners placed their home

address on the petition.

     The 90-day period prescribed in section 6213(a) for filing a

timely petition expired on Wednesday, October 29, 1997, a day

that was not a legal holiday in the District of Columbia.     The

envelope in which the petition was contained reflects a private

postmeter postmark of November 21, 1997.3    The petition was filed

with the Court on Wednesday, November 26, 1997, 118 days after

the mailing of the notice of deficiency.    At the time the

petition was filed, petitioners were residents of Riverside,

California.


     3
          Petitioner's testimony was inconsistent as to the date
he actually signed the petition. It is clear that it was
sometime after Nov. 4, 1997. Given the postmeter date of Nov.
21, 1997, and receipt by the Tax Court on Nov. 26, 1997, it seems
likely that the petition was signed on or about Nov. 21, 1997.
                                - 5 -

     Respondent filed a motion to dismiss for lack of

jurisdiction contending the petition was not timely filed under

section 6213(a).   Petitioners filed an objection to respondent's

motion.   Petitioners contend they are entitled to the 150-day

period to file a petition with the Court because petitioner was

absent from the United States for a period in excess of 3 months

around the time that the notice of deficiency was issued.

Petitioner contends his leaving the United States so shortly

after the mailing and receipt put him at a disadvantage for

filing timely.   Petitioners also contend that they will be

severely prejudiced if their petition is dismissed.

     This case was called for hearing in San Diego, California.

Counsel for both parties appeared at the hearing and presented

argument and evidence with respect to the motion.

Discussion

     The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress.    Sec. 7442; Commissioner v. Gooch Milling & Elevator

Co., 320 U.S. 418 (1943); Naftel v. Commissioner, 85 T.C. 527,

529 (1985); Kluger v. Commissioner, 83 T.C. 309, 314 (1984);

Medeiros v. Commissioner, 77 T.C. 1255, 1259 (1981); Lundy v.

Commissioner, T.C. Memo. 1997-14.   The 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.
                               - 6 -

v. Commissioner, 90 T.C. 142, 147 (1988).   The taxpayer has 90

days from the date the notice of deficiency is mailed (150 days

if the notice is mailed to a taxpayer outside of the United

States) to file a petition in this Court for a redetermination of

the deficiency.   Sec. 6213(a); Estate of Moffat v. Commissioner,

46 T.C. 499, 501 (1966); Lundy v. Commissioner, supra.

     There is no dispute that respondent mailed a valid notice of

deficiency to petitioners, or that the date of mailing was July

31, 1997.   The question to be resolved is whether petitioners

were required to file the petition with this Court within 90 days

from the date of the mailing of the notice of deficiency, or

whether they were entitled to the 150-day period.

     Section 6213(a) provides in pertinent part:

          SEC. 6213(a). Time For Filing Petition and
     Restriction on Assessment.--Within 90 days, or 150 days
     if the notice is addressed to a person outside the
     United States, 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. * * *

     The 90-day period for filing the petition with this Court

expired on Wednesday, October 29, 1997.   The petition was

received and filed by this Court on November 26, 1997, 118 days

after the mailing of the notice of deficiency.   As the petition

was filed after October 29, 1997, we will have jurisdiction in

this matter only if petitioner is entitled to the 150-day filing

period prescribed by section 6213(a).
                               - 7 -

     It has previously been determined that the 150-day period

applies not only to persons who are outside the United States "on

some settled business and residential basis", but also to persons

who are temporarily absent from the country.     Mindell v.

Commissioner, 200 F.2d 38, 39 (2d Cir. 1952).     In Mindell, the

Court of Appeals for the Second Circuit clarified the reasoning

behind the 150-day rule by stating:

     Whatever the reason for the taxpayer's absence from the
     country receipt of the deficiency notice was likely to
     be delayed if he was not physically present at the
     address to which the notice was sent; hence he was
     given additional time to apply for a review of the
     deficiency. * * * [Id. at 39.]

     In Mindell the Court of Appeals relied upon two related

factors for its decision:   (1) Absence from the country (2)

resulting in delayed receipt of the notice of deficiency.     We

subsequently expressed agreement with the holding in Mindell,

citing the above-quoted language.      Levy v. Commissioner, 76 T.C.

228, 231 (1981); Lewy v. Commissioner, 68 T.C. 779, 783 (1977);

Estate of Krueger v. Commissioner, 33 T.C. 667, 668 (1960) (Court

reviewed).   If there is no delayed receipt, the 150-day rule does

not apply.   See Cross v. Commissioner, 98 T.C. 613, 616 (1992);

Malekzad v. Commissioner, 76 T.C. 963, 970 (1981); Levy v.

Commissioner, supra; Lewy v. Commissioner, supra; Degill Corp. v.

Commissioner, 62 T.C. 292, 297 (1974); Cowan v. Commissioner, 54

T.C. 647, 652 (1970) (Court reviewed); Wade v. Commissioner, T.C.

Memo. 1998-235.
                               - 8 -

     In Malekzad v. Commissioner, supra, we explained that in

determining whether the 150-day period is applicable, we look at

both the date of mailing of the notice of deficiency and the date

on which the notice was received by the taxpayer.   The crucial

inquiry is whether the taxpayer falls within the class of persons

that Congress intended to receive the benefit of the longer

period and whether the notice of deficiency served the notice

function that it was designed to serve.    Id. at 970.   The purpose

behind the enactment of the 150-day rule was the prevention of

hardships caused by delays in the receipt of a notice of

deficiency due to the taxpayer's absence from the United States

and the relatively slow international mails.    Looper v.

Commissioner, 73 T.C. 690, 694 (1980).

     On the facts in the instant case, petitioners were not

entitled to the 150-day period for filing their petition.

Petitioners were in the United States on the date the notice of

deficiency was mailed as well as on the date it was received.

Petitioner actually received the notice of deficiency 2 days

after it was mailed to the address reflected on the tax returns.

Thus, petitioner's absence from the country did not result in a

delay in the receipt of the notice.    Lewy v. Commissioner, supra.

     Since petitioner's absence from the country did not cause a

delay in the receipt of the notice of deficiency, petitioner's

only argument is that the absence caused a delay in preparation

and filing of the petition.   In this regard, petitioners' counsel
                               - 9 -

argues that petitioner did not understand the contents of the

notice of deficiency and, in the alternative, that respondent

failed to enclose a petition with the notice sent to petitioners.

     We note at the outset that the basis for operation of the

90- or 150-day filing period set forth in section 6213(a) is not

dependent upon a taxpayer's understanding of the notice of

deficiency or upon the taxpayer's understanding of section

6213(a).   Even if such were the case, petitioner contacted his

tax adviser immediately upon receipt of the notice of deficiency

and then left the country.   Thus, while petitioner may not have

understood the entire contents of the notice of deficiency, he

clearly understood enough to immediately contact his tax adviser.

Petitioners failed to explain why there was no further

communication with the tax adviser with respect to this matter

during petitioner's absence from the United States.   Further,

petitioners presented no evidence as to the role of petitioner

Diana Roberts, who remained in the United States during this

time.   Petitioner did indicate that he communicated with his

office as well as with his wife periodically.   Yet, there appears

to be a total absence of communication with respect to the need

to file a petition in response to the July 31, 1997, notice of

deficiency.   Such neglect by petitioners and their tax adviser is

not a basis to invoke the 150-day rule.

     Petitioners' alternative argument must also fail.   There is

nothing in the statute or case law which would suggest that the
                              - 10 -

Commissioner is required to send a taxpayer a petition or form to

file with this Court.   The notice of deficiency clearly sets out

the address of the Court and the fact that a petition form and

instructions could be obtained by writing to the Court.    Despite

receipt of the notice of deficiency 2 days after it was sent,

neither petitioners nor their adviser apparently took such

action.

     Because the petition was not filed within 90 days of the

date of the mailing of the notice of deficiency, we will grant

respondent's motion to dismiss for lack of jurisdiction.

Petitioners, however, are not without a judicial remedy.

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

Internal Revenue Service, and if the refund claim is denied, sue

for a refund in the appropriate Federal District Court or the

United States Court of Federal Claims.

     To reflect the foregoing,

                                         An appropriate order of

                                    dismissal will be entered.
