                         T.C. Memo. 2000-251



                       UNITED STATES TAX COURT



                    JOSE GUABA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17896-99.                      Filed August 10, 2000.


     Bernard Lambert, for petitioner.

     Joanne B. Minsky and Katrine Shelton, for respondent.



                         MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:      This matter is before

the Court on respondent's Motion to Dismiss for Lack of

Jurisdiction.   As discussed in detail below, we will grant

respondent's motion.
                               - 2 -

Background

     On June 28, 1995, petitioner and his wife filed a bankruptcy

petition with the U.S. Bankruptcy Court for the District of New

Jersey.   The bankruptcy court issued a discharge order to

petitioner in the aforementioned bankruptcy case on October 13,

1995.

     On October 28, 1998, respondent issued a notice of

deficiency to petitioner determining a deficiency in his Federal

income tax for 1996 of $21,799 and an addition to tax pursuant to

section 6651(a)(1) in the amount of $4,904.77.   Respondent mailed

the notice to petitioner at 6405 W. Larmon St., Tampa, Florida

33634 (the Tampa address).   Although petitioner asserts that he

did not receive the notice of deficiency, petitioner does not

contend that the Tampa address was not his last known address.

     On March 29, 1999, after the expiration of the 90-day period

for filing a petition with the Court, respondent entered an

assessment against petitioner for the tax and addition to tax set

forth in the notice of deficiency for 1996.   On May 12, 1999,

petitioner's counsel wrote a letter to the Internal Revenue

Service’s Atlanta Service Center which stated in pertinent part:

          This office represents Mr. Jose Guaba regarding
     income (Form 1040) taxes for tax year 1996. A copy of
     Form 2848 (Power of Attorney) is enclosed for your
     records.

          It appears that the suggested additional
     assessment is based on the transactions surrounding the
     foreclosure of Mr. Guaba's home. It also appears that
                               - 3 -

     pertinent information was not available to the IRS in
     preparing the proposed assessment. For your review, I
     have included a copy of the bankruptcy petition filed
     in connection with the foreclosure as well as a copy of
     the discharge order.

          I trust once you review the documentation, an
     adjustment will be made to cancel the proposed
     assessment.

Petitioner's case was referred to a Problem Resolution Officer

within the Atlanta Service Center.

     The Problem Resolution Officer treated the above-described

letter as a request for an abatement and/or a claim for refund

for 1996.   On August 23, 1999, the Atlanta Service Center issued

a letter to petitioner which stated in pertinent part:

     This letter is your legal notice that we have
     disallowed your claim(s). We can't allow your claim(s)
     for refund or credit for the period(s) shown above for
     the reason(s) listed below.

     Your claim must state in detail the grounds for credit
     or refund and give necessary facts. The bankruptcy
     records received seem to indicate the petition was
     prior to 1996 tax year, therefore tax assessment
     procedures will continue.

     There are exclusions from gross income of debt
     cancellation as cited under Code Section 108. Please
     resubmit your claim with specific reasons for abatement
     of tax. We are closing your case in the Problem
     Resolution Program. We apologize for any inconvenience
     this may have caused you.

     If you want to appeal our decision to disallow your
     claim(s), you must file a petition with the United
     States Tax Court within 90 days from the date of this
     letter. Write to the United States Tax Court * * * to
     get the petition form. Return the completed petition
     form along with a copy of this letter to the same
     address within 90 days from the date of this letter.
                               - 4 -

     On November 29, 1999, petitioner filed a petition with the

Court including as an attachment a copy of the August 23, 1999,

letter.   At the time the petition was filed, petitioner resided

at the Tampa address.   The petition arrived at the Court in an

envelope bearing a private postage meter postmark date of

November 19, 1999, and a U.S. Postal Service postmark date of

November 24, 1999.

     Respondent filed a Motion to Dismiss for Lack of

Jurisdiction asserting that:   (1) The petition was not timely

filed with respect to the notice of deficiency dated October 28,

1998; (2) the August 23, 1999, letter does not constitute a

notice of deficiency; and (3) the petition was not timely filed

even if the August 23, 1999, letter is considered a notice of

deficiency.

     Petitioner filed an objection to respondent's motion arguing

that:   (1) He did not receive the notice of deficiency dated

October 28, 1998; (2) the August 23, 1999, letter should be

considered a notice of deficiency; and (3) the petition was

timely mailed to the Court on November 19, 1999.

     This matter was called for hearing at the Court's motions

session held in Washington, D.C.   Counsel for respondent appeared

at the hearing and offered argument in support of respondent's

motion to dismiss.   During the hearing, counsel for respondent

informed the Court that respondent had no record that the notice
                                - 5 -

of deficiency dated October 28, 1998, had been returned to

respondent undelivered.   No appearance was made by or on behalf

of petitioner at the hearing.

Discussion

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

exercise our jurisdiction only to the extent authorized by

Congress.    See Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

The Court's jurisdiction to redetermine a deficiency depends upon

the issuance of a valid notice of deficiency and a timely filed

petition.    See 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's "last known address".   Sec.

6212(b)(1); Frieling v. Commissioner, 81 T.C. 42, 52 (1983).     The

taxpayer, in turn, has 90 days (or 150 days if the notice is

addressed to a person outside of the United States) from the date

the notice of deficiency is mailed to file a petition in this

Court for a redetermination of the deficiency.   See sec. 6213(a).

     The record in this case shows that respondent mailed a

notice of deficiency to petitioner for the 1996 taxable year on

October 28, 1998.   However, the petition in this case was not
                                 - 6 -

filed until November 29, 1999--over a year after the mailing of

the notice of deficiency.     Although petitioner contends that he

did not receive the notice of deficiency, there is no allegation

that the notice was not mailed to petitioner's last known

address.   Moreover, respondent informed the Court that there is

no indication that the notice was returned to respondent

undelivered.    We note that the notice of deficiency was mailed to

the same Tampa address where petitioner was residing at the time

he filed the petition in this case.      Under the circumstances, we

conclude that respondent mailed a valid notice of deficiency to

petitioner on October 28, 1998, and that petitioner failed to

file a petition within the 90-day period prescribed in section

6213(a).   It follows that we lack jurisdiction over the petition.

     Petitioner contends that the letter that the Atlanta Service

Center mailed to him on August 23, 1999, constitutes a notice of

deficiency.    We disagree.   It is well settled that the Court

lacks jurisdiction over a petition that is filed with respect to

a letter from the Commissioner that was not intended to

constitute a notice of deficiency.       See Lerer v. Commissioner, 52

T.C. 358, 362-366 (1969); Powell v. Commissioner, T.C. Memo.

1998-108; Schoenfeld v. Commissioner, T.C. Memo. 1993-303.        In

applying this principle in the present case, we are satisfied

that respondent did not intend for the August 23, 1999, letter to

be considered a notice of deficiency.
                               - 7 -

     Read in context, it is evident that the August 23, 1999,

letter was not intended to serve as a notice of deficiency but

rather was issued to inform petitioner that respondent would not

abate the assessment entered against petitioner for the 1996

taxable year.   Petitioner had defaulted with respect to the

notice of deficiency dated October 28, 1998, and respondent had

entered an assessment against petitioner for the tax and addition

to tax set forth in the notice.   Thereafter, petitioner's counsel

had written to the Atlanta Service Center in an effort to have

the assessment abated.   Against this background, personnel within

the Atlanta Service Center had, in their discretion, given

petitioner a further opportunity to demonstrate that the

assessment for 1996 was incorrect.     The letter, which informs

petitioner that his abatement claim was rejected, simply does not

purport to determine a deficiency.     Although the letter contains

language suggesting that petitioner would be permitted to contest

the denial of his claim in the Tax Court, the erroneous inclusion

of such language in the letter does not convert the letter into a

notice of deficiency.1


     1
        Even assuming for the sake of argument that the Aug. 23,
1999, letter constitutes a notice of deficiency, the petition was
not timely filed. In particular, the petition arrived at the
Court in an envelope bearing a private postage meter postmark
date of Nov. 19, 1999, and a U.S. Postal Service postmark date of
Nov. 24, 1999. For purposes of the timely mailing/timely filing
provisions contained in sec. 301.7502-1(c)(1)(iii), Proced. &
Admin. Regs., the U.S. Postal Service postmark date of Nov. 24,
1999, is controlling for purposes of determining whether the
                                                   (continued...)
                              - 8 -

     Consistent with the preceding discussion, we conclude that

we lack jurisdiction in this case because of petitioner's failure

to file a timely petition with the Court.   Accordingly, we will

grant respondent's motion to dismiss.2

                                      An order will be entered

                                granting respondent's Motion to

                                Dismiss for Lack of Jurisdiction.




     1
      (...continued)
petition was timely filed. See Lowman v. Commissioner, T.C.
Memo. 1988-157. Because the 90-day filing period would have
expired on Nov. 22, 1999, the petition was not timely filed.
     2
        We note that although petitioner cannot pursue his case
in this Court, he is not without a remedy. In short, petitioner
may pay the tax, file a claim for a refund with the Internal
Revenue Service, and if the claim is denied, sue for a refund in
the U.S. District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
