                        T.C. Memo. 2000-231



                      UNITED STATES TAX COURT



     HOWARD M. MORGAN AND GLENICE S. MORGAN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17424-99.                     Filed August 1, 2000.




     Frank A. Weiser, for petitioners.

     Edwin A. Herrera, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Respondent moves the Court to dismiss this

case for lack of jurisdiction arguing that petitioners failed to

petition this Court within the 90-day period of section 6213(a)1.


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


See also Rules 13(c) and 40.   On April 15, 1999, respondent

mailed to petitioners’ last known address and former address

notices of deficiency determining a $448,007 deficiency in their

1995 Federal income tax and an $89,601 accuracy-related penalty

under section 6662(a).   Petitioners object to respondent’s

motion.   Petitioners argue primarily that the notices mailed to

their last known address were invalid because, they assert, the

notices did not contain notice of their right to contact a local

office of the taxpayer advocate and the location and phone number

of the appropriate office.   Petitioners contend that such

information is required by section 6212(a).   Petitioners argue

alternatively that the petition they filed with this Court after

the 90-day period was timely because they challenged respondent’s

determination through a lawsuit filed in United States District

Court during the 90-day period.

     We held an evidentiary hearing on respondent's motion and

shall grant it.

                             Background2

     Petitioners filed a joint 1995 Federal income tax return.

On April 15, 1999, respondent mailed to each petitioner by

     2
       The Court directed each party to file an opening brief and
an answering brief, the latter limited to making any objection to
the opposing party’s proposed findings of fact. Petitioners have
not filed an answering brief. We conclude they have conceded
respondent's proposed findings as correct except to the extent
that their opening brief contains proposed findings inconsistent
therewith. See Fankhanel v. Commissioner, T.C. Memo. 1998-403,
affd. by unpublished opinion 205 F.3d 1333 (4th Cir. 2000).
                                - 3 -


certified mail two notices of deficiency addressed to both

petitioners as to that year.3   Two of these notices were mailed

to petitioners’ last known address (the Collins address) and

received by them.   The other two notices were mailed to

petitioners’ former address (the Willow address), which, at the

time, was the residence of petitioners' daughter and son-in-law;

petitioners claim not to have received the latter two notices.

All four notices are identical in all material regards, and each

notice was mailed separately with a copy of Notice 1214, Helpful

Contacts for Your “Notice of Deficiency”.4   None of respondent’s

mailings were returned to him as undeliverable.

     During the first week of July 1999, Mr. Morgan retained Anne

Tahim, a certified public accountant, to appeal respondent’s

determination.   On July 12, 1999, Ms. Tahim sent to the Internal

Revenue Service by facsimile an executed power of attorney

listing her and a colleague (collectively, the representatives)

as petitioners’ representatives for petitioners’ 1995 through

1998 taxable years.   Upon receiving the facsimile, an employee of

respondent spoke to Ms. Tahim by telephone and, among other



     3
       An employee of respondent also hand delivered to Mr.
Morgan on that date a copy of one of these notices.
     4
       Notice 1214 is a 2-page document that informs a person
receiving a notice of deficiency that he or she may discuss the
notice with the Internal Revenue Service employee listed on the
face of the notice or with a local taxpayer advocate. The notice
lists a toll-free number for taxpayer advocate assistance and the
local phone numbers of the taxpayer advocate offices.
                                 - 4 -


things, informed her that petitioners had until July 14, 1999, to

petition this Court to redetermine respondent’s determination.

The employee also provided Ms. Tahim with the telephone number of

this Court’s petition section.

     On July 14, 1999, 90 days after respondent mailed to

petitioners the notices of deficiency, petitioners filed a

lawsuit against the Internal Revenue Service and Does 1 through

40 (collectively, the defendants) in the United States District

Court, Central District of California, generally challenging

respondent’s determination.   On September 29, 1999, the

defendants moved to dismiss the lawsuit without prejudice to

petitioners’ paying the tax and filing a proper refund action,

asserting primarily that the District Court lacked subject matter

jurisdiction.   Following the District Court’s filing of

petitioners’ opposition to the defendant’s motion,5 the District

Court, on October 25, 1999, filed a stipulation of the parties

there stating that the court “may dismiss * * * [petitioners’]

Complaint and action on the sole ground that the Court lacks

subject matter jurisdiction, without prejudice to * * *

[petitioners] filing a subsequent suit in a court of competent




     5
       Petitioners agreed in their opposition that the District
Court lacked jurisdiction, but they went to great lengths to
maintain that the court should dismiss the case without rendering
judgment on the merits of the case. Petitioners’ opposition
states that they do not want the court’s dismissal to be given
res judicata effect in any further proceeding.
                                 - 5 -


jurisdiction.”   The District Court dismissed petitioners’ lawsuit

on or after that date.

     Petitioners petitioned this Court on November 16, 1999, to

redetermine respondent’s determination.   Petitioners resided in

Orange, California, at that time.

                            Discussion

     Our jurisdiction requires a valid notice of deficiency and a

timely filed petition, and when one or both of these items is

missing, we must dismiss a case for lack of jurisdiction.     See

sec. 6213(a); Cross v. Commissioner, 98 T.C. 613, 615 (1992); Pyo

v. Commissioner, 83 T.C. 626, 632 (1984).   Section 6213(a)

provides that where a notice of deficiency is addressed to an

individual within the United States, he or she may petition this

Court within 90 days of the mailing of the notice of deficiency

to redetermine the deficiency.

     Petitioners argue primarily that the notices of deficiency

mailed to their last known address were invalid because, they

assert, the notices failed to include all information required by

section 6212(a).   We disagree with this assertion.   We find as a

fact that the notices of deficiency mailed to petitioners’ last

known address contain all statutorily required information.

Petitioners point to the fact that respondent’s files contain one

copy of the notices of deficiency mailed to the Collins address,

one copy of the notices mailed to the Willow address, and one
                                - 6 -


copy of Notice 1214, which is attached to the copy of the notices

mailed to the Willow address.   Petitioners draw from this fact

that Notice 1214 was mailed only to the Willow address.      Contrary

to petitioners’ assertion, the mere fact that respondent’s file

contains only one copy of Notice 1214 does not mean that

respondent sent only one copy of that notice to them.    Certain of

respondent’s employees testified credibly that only one copy of

Notice 1214 is kept in the file of a taxpayer (or taxpayers in

the case of a joint return), notwithstanding the number of copies

of that notice that are actually sent to the taxpayer(s).     We

conclude and hold that the notices of deficiency mailed to

petitioners’ last known address were valid.    In so concluding, we

reject without further discussion petitioners’ assertion that all

information required by section 6212(a) must be included on the

face of the notice of deficiency in order to comply with that

section.

     Petitioners argue alternatively that their petition to this

Court was timely because they filed the lawsuit in the District

Court within the applicable 90-day period.    We disagree.   The

fact that a taxpayer files a lawsuit in a Federal District Court

challenging a notice of deficiency does not mean that a later

petition to this Court is considered filed as of the earlier

filing in District Court.   See Brave v. Commissioner, 65 T.C.

1001 (1976); see also exhibit 3 (Notice of deficiency issued to
                                - 7 -

petitioners at the Collins address), which states on its face

that:    (1) “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” and (2) the “Last Day To File

A Petition With The United States Tax Court” is “July 14 1999".

Nor does it matter that the parties to the District Court

proceeding agreed to dismiss that case without prejudice to

petitioners’ challenging respondent’s determination in the

appropriate forum.    Petitioners’ reliance on the equitable powers

of this and the equitable powers of the District Court to extend

or otherwise toll the 90-day statutory period is unfounded under

the facts herein.6

     We hold that we lack jurisdiction over this case because

petitioners failed to petition this Court within the applicable

90-day period; accordingly, we shall dismiss this case for that

reason.    Our dismissal does not leave petitioners without a right

to contest respondent's determination in the appropriate forum.

Petitioners may, if they desire, pay the tax claimed due by

respondent, file with respondent a claim for refund of any amount

purportedly overpaid, and if and when respondent denies that

claim, sue respondent for a refund in a United States District


     6
       We find nothing in the record to support petitioners’
naked assertion that the District Court remanded their case to
this Court or otherwise allowed them to petition this Court
effective as of the date of their District Court filing. Thus,
we need not and do not decide petitioners’ argument that the
District Court has the power to do so.
                                 - 8 -

Court or the Court of Federal Claims.       Our dismissal means that

petitioners are unable to contest respondent's determination in

this Court.   See Budlong v. Commissioner, 58 T.C. 850, 854 n.2

(1972); McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).

     To reflect the foregoing,

                                              An appropriate order will

                                         be entered.
