                        T.C. Memo. 1998-179



                      UNITED STATES TAX COURT



               DEBORAH F. ROBINSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10673-97.                    Filed May 13, 1998.



     Deborah F. Robinson, pro se.

     Brendan G. King, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) of the Internal Revenue Code of 1986, as amended, and
                                  - 2 -

Rules 180, 181, and 183.1     The Court agrees with and adopts the

Opinion of the Special Trial Judge, which is set forth below.

                   OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:      This case is before the Court

on (1) Petitioner's Motion to Restrain Assessment or Collection;

and (2) Respondent's Motion to Dismiss for Lack of Jurisdiction.

Background

     On August 26, 1991, respondent sent petitioner a notice of

deficiency for the taxable year 1988 (the notice of deficiency

for 1988).      In the notice of deficiency for 1988, respondent

determined the following deficiency in petitioner's Federal

income tax and additions to tax:

                                     Additions to Tax
         Year    Deficiency    Sec. 6651(a) Sec. 6653(a)(1)
         1988      $9,713         $320           $486

     On February 23, 1993, respondent sent petitioner a notice of

deficiency for the taxable year 1989 (the notice of deficiency

for 1989).      In the notice of deficiency for 1989, respondent

determined the following deficiency in petitioner's Federal

income tax and additions to tax:

                                    Additions to Tax
         Year    Deficiency    Sec. 6651(a)     Sec. 6654
         1989     $27,822       $4,291.75       $1,080.24




     1
        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.
                                - 3 -

     On October 1, 1993, respondent sent petitioner a notice of

deficiency for the taxable year 1991 (the notice of deficiency

for 1991).    In the notice of deficiency for 1991, respondent

determined the following deficiency in petitioner's Federal

income tax and addition to tax:

                                        Addition to Tax
       Year            Deficiency        Sec. 6651(a)
       1991             $14,120             $623

     The notices of deficiency for 1988, 1989, and 1991 were sent

by certified mail and were addressed to petitioner at 1554 Summit

Avenue, Hillside, New Jersey 07205 (the Summit Avenue address).

Each such notice was returned to respondent by the Postal Service

marked "unclaimed".

     Respondent's records do not indicate that a notice of

deficiency was sent to petitioner for the taxable year 1990.

     Petitioner filed income tax returns claiming refunds for the

following taxable years on the indicated dates:

          Year           Date Filed        Refund Claimed
          1988            10/21/92              $1,725
          1989            06/20/94               7,317
          1990            07/02/96               1,254
          1991            11/19/96              10,650

     Petitioner did not file an income tax return for the taxable

year 1992.

     Petitioner's 1988 and 1989 income tax returns listed the

Summit Avenue address as petitioner's address.      Petitioner's 1990

and 1991 income tax returns listed a different address; namely,
                                 - 4 -

P.O. Box 5072, Hillside, New Jersey 07205 (the P.O. Box 5072

address).

     At the time that the notice of deficiency for 1988 was

mailed, respondent's files pertaining to petitioner's 1988

taxable year included correspondence from petitioner dated June

15, 1991.   That correspondence reflected the Summit Avenue

address as petitioner's address.2

     Petitioner filed a petition for redetermination with the

Court on May 27, 1997.3   The petition arrived at the Court by

certified mail in an envelope bearing a U.S. Postal Service

postmark date of May 21, 1997.

     The petition, which does not bear petitioner's original

signature and which was not accompanied by the filing fee,4 seeks

to place in issue the taxable years 1988, 1989, 1990, and 1991.

The petition does not include a copy of any notice of deficiency

for 1990.   See Rule 34(b)(8).

     Subsequent to the filing of the petition, petitioner filed a

Motion to Restrain Assessment or Collection.   Petitioner attached

to her motion copies of approximately 40 letters, virtually all

     2
        The record does not include a copy of petitioner's income
tax return for 1987, and the record is otherwise silent regarding
what address was listed thereon.
     3
        The petition lists the P.O. Box 5072 address as
petitioner's address.
     4
        Rules 33(a), 23(a)(3), and 34(b)(7) require that a
petition bear the original signature of a petitioner. Rule 20(b)
requires that a petition be accompanied by a $60 filing fee.
                                - 5 -

of which were sent by certified mail,5 to various Internal

Revenue Service offices.    Letters dated June 15, 1991, October 5,

1992, October 18, 1992, December 12, 1992, March 14, 1995, July

23, 1995, October 4, 1995, and November 15, 1995, list the Summit

Avenue address as petitioner's address.    The remaining letters

list the P.O. Box 5072 address as petitioner's address.

     Of the letters attached to petitioner's motion that list the

P.O. Box 5072 address as petitioner's address, the earliest is

dated January 11, 1994.    The second earliest is dated November

29, 1995.

     Shortly after petitioner filed her motion to restrain,

respondent filed a Motion to Dismiss for Lack of Jurisdiction.6

Respondent's motion is premised on the ground that, for the

taxable years 1988, 1989, and 1991, the petition was not timely

filed within the time prescribed by section 6213(a) or section

7502.    For the taxable year 1990, respondent's motion is premised

on the ground that respondent is unaware of any notice of

deficiency having been sent to petitioner for that year.7



     5
        The exhibits to petitioner's motion include copies of 41
domestic return receipts (PS Forms 3811) for certified mail sent
to various IRS offices.
     6
        Respondent also filed a Notice of Objection to
petitioner's motion on the ground that the Court lacks
jurisdiction in this case.
     7
        The record suggests that respondent accepted petitioner's
1990 return as filed and applied the refund claimed thereon to an
outstanding liability for some other taxable year.
                               - 6 -

     Petitioner filed an objection to respondent's motion.    In

her objection, petitioner alleges that the notices of deficiency

for 1988, 1989, and 1991 were not sent to her at her last known

address.   In this regard, petitioner attached to her objection

copies of purported letters dated April 10, 1988, and March 3,

1989, that direct respondent to use the P.O. Box 5072 address,

rather than the Summit Avenue address.   Neither letter lists

petitioner's tax identification number nor does either reference

a particular taxable year.   Further, neither letter purports to

have been sent by certified mail.8

     Respondent has no record of having received either the

purported letter dated April 10, 1988, or the purported letter

dated March 3, 1989.

     Pursuant to notice, petitioner's motion to restrain and

respondent's motion to dismiss were called for hearing at the

Court's Trial Session in New York, New York, on March 20, 1998.


     8
        The purported letter dated Apr. 10, 1988, reads as
follows:

     For security reasons, please forward my refund check to
     the below listed address. Please also forward any and
     all other correspondence to my below listed address.
     All correspondence from your offices, if any, need also
     be delivered by regular mail. My work related travel
     does not afford me the opportunity to collect
     deliveries other than that forwarded by regular mail.
     Thank you.

The purported letter dated Mar. 3, 1989, is essentially the same,
except that the phrase "Second Notice" appears twice above the
date on that letter.
                                 - 7 -

Counsel for respondent appeared at the hearing and presented

argument in support of the pending motion.    There was no

appearance by or on behalf of petitioner.

Discussion

     The Court's jurisdiction to redetermine a deficiency 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 the Commissioner,

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 the Commissioner 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).   If a notice of deficiency is mailed to the taxpayer at

the taxpayer's last known address, actual receipt of the notice

by the taxpayer is immaterial.     King v. Commissioner, 857 F.2d

676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Keado v.

United States, 853 F.2d 1209, 1211-1212 (5th Cir. 1988); Yusko v.

Commissioner, 89 T.C. 806, 810 (1987); Frieling v. Commissioner,

supra at 52.    The taxpayer, in turn, generally has 90 days from

the date that the notice of deficiency is mailed to file a

petition in this Court for a redetermination of the deficiency.

Sec. 6213(a).
                              - 8 -

     Respondent's Motion To Dismiss: Taxable Years 1988, 1989,
and 1991

     There is no question that the notices of deficiency for

1988, 1989, and 1991 were mailed to petitioner on August 26,

1991, February 23, 1993, and October 1, 1993, respectively.

Further, there is no question that the petition was not filed

until May 27, 1997, well after the expiration of each of the 90-

day periods for filing a timely petition.   Accordingly, it

follows that we must dismiss this case for lack of jurisdiction

insofar as the 1988, 1989, and 1991 taxable years are concerned.

However, in view of petitioner's assertion that the notices of

deficiency for those years were not mailed to petitioner at her

last known address, the issue presented is whether the dismissal

of those 3 years should be based on petitioner's failure to file

a timely petition under section 6213(a) or respondent's failure

to issue a valid notice of deficiency under section 6212.     If

jurisdiction is lacking because of respondent's failure to issue

a valid notice of deficiency, we will dismiss on that ground,

rather than for lack of a timely-filed petition.   Pietanza v.

Commissioner, 92 T.C. 729, 735-736 (1989), affd. without

published opinion 935 F.2d 1282 (3d Cir. 1991); Weinroth v.

Commissioner, 74 T.C. 430, 435 (1980); Keeton v. Commissioner, 74

T.C. 377, 379-380 (1980).
                               - 9 -

     As indicated, the parties disagree whether the notices of

deficiency for 1988, 1989, and 1991 were mailed to petitioner at

her last known address as required by section 6212(b).

     The phrase "last known address" is not defined in the Code

or in the regulations.   We have held that a taxpayer's last known

address is the address shown on his or her most recently filed

return, absent clear and concise notice of a change of address.

Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988).   The burden of

proving that the notice of deficiency was not sent to the

taxpayer at his or her last known address is on the taxpayer.

Yusko v. Commissioner, supra at 808.

     Respondent contends that the Summit Avenue address was

petitioner's last known address.   In contrast, petitioner

contends that the P.O. Box 5072 address was her last known

address.

     The record in this case convincingly demonstrates that the

Summit Avenue address was petitioner's last known address on each

of the three dates on which a notice of deficiency was mailed.

     At the times that the notices of deficiency were sent to

petitioner, respondent's files included correspondence from

petitioner reflecting the Summit Avenue address as petitioner's

address.   Also, at the times that the notices of deficiency for

1989 and 1991 were sent to petitioner, respondent possessed

petitioner's income tax return for 1988, petitioner's most
                              - 10 -

recently filed return, which also listed the Summit Avenue

address as petitioner's address.

     To counter the foregoing, petitioner alleges that she

directed respondent by letters dated April 10, 1988, and March 3,

1989, to change her address from the Summit Avenue address to the

P.O. Box 5072 address.   For the following reasons, however, we do

not find that the purported letters served to give respondent

clear and concise notice of a change of address.

     First, respondent has no record of ever having received

either the purported letter dated April 10, 1988, or the

purported letter dated March 3, 1989.    Although we can imagine

that one such letter might be misfiled by respondent, we question

whether two such letters would be misfiled, particularly in view

of the fact that petitioner's other correspondence seems to have

found its way into respondent's hands.

     Second, it is petitioner's practice to send correspondence

to respondent by certified mail.   However, there is no indication

that either the purported letter dated April 10, 1988, or the

purported letter dated March 3, 1989, was sent by certified mail.

We find this odd, given the fact that "for security reasons",

petitioner allegedly wanted her refund checks to be sent to the

P.O. Box 5072 address and not to the Summit Avenue address.

     Third, petitioner's income tax returns for 1988, 1989, 1990,

and 1991 all listed petitioner's address as the Summit Avenue
                                - 11 -

address.9    Surely petitioner must have realized that respondent

was likely to use the address appearing on her returns in

corresponding with her.     And surely petitioner must have realized

that respondent was likely to use the address appearing on her

returns in issuing her a refund check.10    After all, it was "for

security reasons" that petitioner allegedly notified respondent

of a change of address.

     Fourth, in corresponding with respondent, petitioner

continued to use the Summit Avenue address as late as November

1995.     Thus, correspondence attached to petitioner's motion to

restrain shows that petitioner used the Summit Avenue address in

letters dated June 15, 1991, October 5, 1992, October 18, 1992,

December 12, 1992, March 14, 1995, July 23, 1995, October 4,

1995, and November 15, 1995.

     Fifth, based on petitioner's motion to restrain, petitioner

first used the P.O. Box 5072 address in January 1994 and then not

again until late November 1995.     Between those times, petitioner

used the Summit Avenue address in letters to respondent dated




     9
        It will be recalled that petitioner's tax returns for
1988, 1989, 1990, and 1991 were filed on Oct. 21, 1992, June 20,
1994, July 2, 1996, and Nov. 19, 1996. Thus, all four returns
listing the Summit Avenue address were filed after the purported
letter dated Apr. 10, 1988, and the purported letter dated Mar.
3, 1989.
     10
        It will be recalled that petitioner's tax returns for
1988, 1989, 1990, and 1991 claimed refunds in the amounts of
$1,725, $7,317, $1,254, and $10,650, respectively.
                                - 12 -

March 14, 1995, July 23, 1995, October 4, 1995, and November 15,

1995.

     Sixth, we think it odd that petitioner did not include

copies of the purported letters dated April 10, 1988, and March

3, 1989, as exhibits to her motion to restrain in view of the

fact that she attached approximately 40 of her other letters,

which presumably constituted all of her correspondence with

respondent.     Indeed, the purported letter dated April 10, 1988,

and the purported letter dated March 3, 1989, first came to light

only after the filing of respondent's motion to dismiss.

     Respondent's Motion To Dismiss: Taxable Year 1990

        Respondent asserts that a diligent search of respondent's

records has not disclosed the existence of any notice of

deficiency for the taxable year 1990.     Petitioner has not given

us any reason to question respondent's assertion.     If no notice

of deficiency was issued for 1990, then we lack jurisdiction over

that year.     See Rule 13(a), (c); Monge v. Commissioner, 93 T.C.

at 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. at 147

(1988).

        Petitioner's Motion To Restrain

        Pursuant to section 6213(a), this Court has jurisdiction to

restrain assessment and collection of a deficiency if the

deficiency is the subject of a timely filed petition pending

before the Court.     Powell v. Commissioner, 96 T.C. 707, 711

(1991).     Stated otherwise, we have no jurisdiction to enjoin
                               - 13 -

assessment or collection of a deficiency if respondent's

collection efforts relate to a taxable year over which we have no

jurisdiction.   Schlosser v. Commissioner, 94 T.C. 816, 823

(1990); Kamholz v. Commissioner, 94 T.C. 11, 15 (1990).

     Because we lack jurisdiction over all 4 of the taxable years

that petitioner wishes to place in issue, we are constrained to

deny petitioner's motion to restrain.

Conclusion

     In view of the foregoing, we hold that the notices of

deficiency for 1988, 1989, and 1991 were sent to petitioner at

her last known address.11   We also hold that no valid notice of

deficiency for 1990 was sent to petitioner.

    To give effect to the foregoing,




                                          An order will be entered

                                    denying petitioner's motion to

                                    restrain assessment or

                                    collection, and granting

                                    respondent's motion to dismiss

                                    for lack of jurisdiction.


     11
        Although petitioner cannot pursue her case in this
Court, she is not without a remedy. In short, petitioner may pay
the tax, 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 U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
