                        T.C. Memo. 2003-242



                       UNITED STATES TAX COURT



                   WILLIAM R. DUREN, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13566-01.              Filed August 13, 2003.


     William R. Duren, pro se.

     Edwin A. Herrera and Hieu Nguyen, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction and to

strike as to the taxable years 1996, 1997, and 1999 (motion to

dismiss).   Unless otherwise indicated, 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.
                                - 2 -

Background

     Petitioner timely electronically filed his 1997 Federal

income tax return.    On his 1997 tax return, petitioner listed his

address as 992 1/2 East 46th St., Los Angeles, CA 90011 (L.A.

address).

     On or about March 13, 1999, petitioner was incarcerated in

California State prison.    Petitioner was imprisoned in facilities

at the following locations:    (1) Delano, California, from March

until May 1999, (2) Susanville, California, from May 1999 until

June 2000, (3) Soledad, California, from June 2000 until

September 2001, and (4) Norco, California, from September 2001

until February 2002.

     Prior to his incarceration, petitioner obtained a post

office box for all his mail to be sent while he was incarcerated.

The post office box address was P.O. Box 1830, Hawthorne, CA

90251-1830 (Hawthorne address).    Petitioner gave keys to the post

office box to his mother and sister so they could pick up his

mail for him.   At the time he was incarcerated, however,

petitioner did not advise respondent of a change of address.

     On June 23, 1999, respondent received a Form 1040, U.S.

Individual Income Tax Return, for 1998 bearing petitioner’s name

(1998 Form 1040).    The front page of the 1998 Form 1040 listed

petitioner’s address as P.O. Box 1830, Los Angeles, California
                                 - 3 -

90011.1    The Schedule C, Profit or Loss From Business, and Form

1040V, Payment Voucher, attached to the 1998 Form 1040, however,

listed the L.A. address.     The “P.O. Box 1830” on the front page

of the 1998 Form 1040 was handwritten; the remainder of the

return was filled in with a typewritten/computer generated font.

The handwritten “P.O. Box 1830” was not in petitioner’s

handwriting.     Petitioner did not prepare or sign the 1998 Form

1040.     Petitioner was not sure who prepared the 1998 Form 1040

for him, but believed it was either H&R Block or his mother.

     On August 4, 1999, respondent mailed petitioner a statutory

notice of deficiency for 1997.     Respondent mailed the notice of

deficiency for 1997 to the L.A. address.

     On August 9, 1999, even though it was unsigned, respondent

processed the 1998 Form 1040, and entered it into respondent’s

computer system.

     Sometime in late 1999, while imprisoned at the Susanville,

California, facility, petitioner contacted respondent by letter

because he was concerned about filing his 1999 income tax

returns.

     On September 27, 1999, the Internal Revenue Service (IRS)

mailed a letter, dated September 21, 1999, to petitioner in

Susanville, California.     In this letter, the IRS thanked



     1
        This address combined part of the L.A. address and part
of the Hawthorne address.
                               - 4 -

petitioner for his cooperation.   The letter was signed by Derome

Bratvold, Chief, Adjustments Branch.   This was the first response

petitioner received from respondent.   Petitioner was not sure

what year or what issues the September 21, 1999, letter regarded.

Petitioner, however, believed that this letter was in response to

his concerns regarding filing his 1999 income tax return.

     In a November 16, 2000, letter from the IRS, mailed to

petitioner in Soledad, California, the IRS thanked petitioner for

his interest in paying his delinquent taxes and for submitting a

financial statement Form 433-F, Collection Information Statement.

The letter referenced petitioner’s 1997 tax year, acknowledged

that petitioner was in State prison, apologized for any

inconvenience the IRS caused petitioner, and thanked him for his

cooperation.   This letter was signed by M. Brown, Chief, Accounts

Management Branch 2.

     Petitioner never contacted respondent to specifically direct

respondent to use a different address than the L.A. address.     On

July 26, 2001, however, respondent mailed petitioner a notice of

deficiency for 1998 to his prison address.

     On November 28, 2001, petitioner filed a petition with the

Court disputing respondent’s determinations for 1997 and 1998.2



     2
        The envelope containing the petition bears a postmark of
Oct. 2, 2001. We have previously noted that during this time
period the Court was experiencing significant anthrax-related
mail delays. Gibson v. Commissioner, T.C. Memo. 2002-218.
                                - 5 -

At the time he filed the petition, petitioner resided in

California.   The petition did not comply with the Rules of the

Court as to the form and content of a proper petition.

     On December 4, 2001, the Court ordered petitioner to file an

amended petition on or before February 4, 2002, on the form

enclosed with the order.

     On February 5, 2002, petitioner was paroled.

     On February 19, 2002, petitioner filed an amended petition,

dated January 28, 2002,3 with the Court on the form provided to

him disputing his tax liabilities for 1996, 1997, 1998, and 1999.

Discussion

     Our 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); Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988);

Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); Pyo v.

Commissioner, 83 T.C. 626, 632 (1984).   The Court’s jurisdiction

is strictly limited by statute, and unless a petition is filed

within the time prescribed by statute, we lack jurisdiction and

must dismiss the case.   See Estate of Moffat v. Commissioner, 46

T.C. 499, 501 (1966).

     Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the


     3
         See supra note 2.
                                - 6 -

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 the United States) 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).

1996 and 1999

       In the objection to the motion to dismiss, petitioner did

not object to the dismissal of 1996 and 1999.     At the hearing,

petitioner agreed with respondent that he was not issued and did

not receive a notice of deficiency for 1996 or 1999 and that the

motion to dismiss should be granted for those years.

Accordingly, we shall grant the motion to dismiss with regard to

1996 and 1999.

1997

       On August 4, 1999, respondent mailed the notice of

deficiency for 1997 to petitioner.4     On November 28, 2001,



       4
        As of the date of the mailing of the notice of
deficiency, sec. 301.6212-2, Proced. & Admin. Regs., regarding
the definition of “last known address”, was neither final nor
proposed. See 66 Fed. Reg. 2820 (Jan. 12, 2001) (final
regulation); 64 Fed. Reg. 63768 (Nov. 22, 1999) (proposed
regulation).
                               - 7 -

petitioner filed the petition with the Court in an envelope

bearing a postmark of October 2, 2001.   Accordingly, the Court

received and filed the petition, which was postmarked more than

90 days after the mailing of the notice of deficiency for 1997.

Thus, the issue is whether respondent sent the notice of

deficiency for 1997 to petitioner’s last known address.

     A taxpayer can have only one last known address on the date

that a notice of deficiency is issued.     Abeles v. Commissioner,

supra at 1030.   What knowledge the Commissioner has acquired

concerning the taxpayer’s address is a question of fact.      King v.

Commissioner, 857 F.2d 676, 678, 679 (9th Cir. 1988), affg. 88

T.C. 1042 (1987).   The Commissioner must exercise reasonable

diligence in ascertaining the taxpayer’s correct address;

however, he is entitled to treat the address appearing on a

taxpayer’s return as the last known address in the absence of

clear and concise notification from the taxpayer directing the

Commissioner to use a different address.    Id.; Abeles v.

Commissioner, supra at 1035.   A subsequently filed tax return

with a new address may give the Commissioner notice of a change

of address.   King v. Commissioner, supra at 679, 680.

“Correspondence bearing an address different from that on the

most recent return does not, by itself, constitute clear and

concise notice. * * *   In order to supplant the address on
                               - 8 -

his/her most recent return, the taxpayer must clearly indicate

that the former address is no longer to be used.”    Id. at 681.

     After becoming aware of a taxpayer’s change of address, the

Commissioner must exercise reasonable care and diligence in

ascertaining and mailing the notice of deficiency to the correct

address.   Monge v. Commissioner, supra at 33.   This obligation,

however, arises only if the Commissioner becomes aware of an

address change prior to mailing the deficiency notice.     Id.

     The taxpayer’s “most recently filed return” is the return

which has been properly processed by an IRS service center such

that the address appearing on the return was available to the

Commissioner’s agent when that agent prepared the notice of

deficiency concerning the previously filed return.    Abeles v.

Commissioner, supra at 1035.   The address from the more recently

filed return is available to the agent issuing the notice of

deficiency concerning the previously filed return if such address

could be obtained by a computer generation of an IRS computer

transcript using the taxpayer’s identification number.     Id.

     Petitioner’s contention that the notice of deficiency for

1997 was not sent to his last known address is incorrect for

several reasons.

     First, petitioner did not file a “return” for 1998.    The

1998 Form 1040 that petitioner sent to the IRS was unsigned.

“[I]n order for a Form 1040 to constitute a valid income tax
                                 - 9 -

return it must be signed by the taxpayer under penalties of

perjury.”   Cupp v. Commissioner, 65 T.C. 68, 78 (1975), affd.

without published opinion 559 F.2d 1207 (3d Cir. 1977).

Accordingly, petitioner’s most recently filed “return” at the

time of the mailing of the notice of deficiency for 1997 appears

to be his 1997 return.   Cf. King v. Commissioner, supra at 681.

     Second, even if the 1998 Form 1040 is considered to be a

subsequently filed tax return, it did not operate to change

petitioner’s last known address for purposes of the notice of

deficiency for 1997.   Even though the 1998 Form 1040 was not

signed, respondent processed the 1998 Form 1040.   Respondent

entered the 1998 Form 1040 into his computer system on August 9,

1999--5 days after the mailing of the notice of deficiency for

1997.   Accordingly, respondent was not aware of a change of

address prior to mailing the notice of deficiency for 1997.

     In Williams v. Commissioner, 935 F.2d 1066 (9th Cir. 1991),

affg. T.C. Memo. 1989-439, the taxpayer filed a return showing a

new address on April 15, 1987.    This new return, however, had not

been processed by the IRS so as to be available through a

computer inquiry by the agent who sent the notice of deficiency

on June 17, 1987.   The U.S. Court of Appeals for the Ninth

Circuit agreed with us that:   (1) The reasonable business

requirements of the IRS necessitated time for the processing of

the filed return through its computer facilities in order for the
                              - 10 -

new address to be “available”; (2) the amount of time between the

filing of the return and the date of the notice of deficiency--63

days--did not exceed a reasonable time for processing the

information; and (3) the change of address was not reasonably

available to the agent sending the notice of deficiency.     Id. at

1068.

     In the case at bar, respondent processed the 1998 Form 1040,

even though it was unsigned, in 47 days.   The amount of time

between the receipt of the 1998 Form 1040 and the date of the

notice of deficiency--only 42 days--did not exceed a reasonable

time for processing the information.    Accordingly, the change of

address was not reasonably available to the agent sending the

notice of deficiency for 1997.5   Id.

     Third, petitioner’s correspondence with respondent was

insufficient to alert respondent of a change of address.     King v.

Commissioner, supra at 681.   Petitioner testified at the hearing:

“Oh, no, I never wrote them specifically stating that here is my

change of address.   I just wrote them from different addresses

with different issues.”   Petitioner never provided a clear and

concise notification of a change of address to respondent.


     5
        We note that if this change of address had been
available, it was unlikely that petitioner would have received
the notice of deficiency for 1997. The address on the front of
the 1998 Form 1040 was a combination of the L.A. address and the
Hawthorne address. Additionally, two letters respondent sent to
this address were returned to respondent by the U.S. Postal
Service as undeliverable because there was no such address.
                              - 11 -

     With regard to the notice of deficiency for 1997, this is

not an instance of repeated contact by a taxpayer from a single

address over a long period of time prior to the issuance of the

notice of deficiency.6   In this case, it is not clear whether

petitioner contacted the IRS prior to the mailing of the notice

of deficiency for 1997.7   Furthermore, petitioner’s first letter

to the IRS concerned questions regarding filing his income tax

return for 1999.

     We hold that respondent mailed the notice of deficiency for

1997 to petitioner’s last known address and petitioner failed to

timely file a petition for 1997.   Accordingly, we shall grant the

motion to dismiss with regard to 1997.

     To reflect the foregoing,

                                              An appropriate order

                                         will be issued.




     6
        In fact, after petitioner had established regular contact
with respondent for a period of almost 2 years, respondent mailed
the notice of deficiency for 1998 to petitioner at his prison
address.
     7
        The Sept. 21, 1999, letter to petitioner in Susanville,
Calif., is the earliest letter petitioner received from
respondent.
