                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                             No. 06-12046                    SEPTEMBER 21, 2006
                         Non-Argument Calendar                THOMAS K. KAHN
                                                                  CLERK
                       ________________________

                     U.S. TAX COURT No. 23304-05

OLIVER DAVID SALERY,



                                                     Petitioner-Appellant,

                                  versus

COMMISSIONER OF INTERNAL REVENUE,

                                                     Respondent-Appellee.


                       ________________________

                  Petition for Review of a Decision of the
                          United States Tax Court
                       _________________________

                           (September 21, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

          Oliver David Salery appeals pro se from the United States Tax
Court’s dismissal of his pro se petition challenging the determination of the

Commissioner of the Internal Revenue Service (“IRS”) that he was liable for

income tax deficiencies and penalties for the 2001 tax year.1 Salery argues that the

Tax Court erred by failing to rule on the merits of his petition, committed fraud,

and was biased or prejudiced against him. The IRS responds that the Tax Court

properly dismissed Salery’s petition for lack of subject matter jurisdiction because

it was untimely as to the notice of deficiency for the 2001 tax year, and there was

no other basis for jurisdiction.

       We review questions of subject matter jurisdiction de novo. Palmer v.

Braun, 376 F.3d 1254, 1257 (11th Cir. 2004). A taxpayer must file a petition

challenging an income tax deficiency within 90 days after the notice of deficiency

is mailed to the taxpayer’s last known United States address. 26 U.S.C. §§

6212, 6213(a). According to this statute, the “timely filing of such a petition is a

jurisdictional prerequisite for a suit in the tax court.” Pugsley v. Comm’r of

Internal Revenue, 749 F.2d 691, 692 (11th Cir. 1985). Thus, where the petition is

untimely, the case should be dismissed. Id. at 692-94; Myles v. Comm’r, I.R.S.,

719 F.2d 373, 373-74 (11th Cir. 1983). Upon dismissal of a late petition for lack

of subject matter jurisdiction, the taxpayer’s only remedy is to pay the deficiency

       1
        Salary mentions, for the first time on appeal, tax years 2000 and 2002. We find that he
waived any arguments regarding the 2000 and 2002 tax years by not raising them in the first
instance in the Tax Court.
                                                 2
and bring a refund suit in the United States District Court. See Sicari v. C.I.R., 136

F.3d 925 (2d Cir. 1988).

       The record reflects that the notice of deficiency for the 2001 tax year was

mailed to Salery’s last known Florida address in November 2003, but he did not

file his petition challenging that deficiency until December 2005, more than two

years later.2 Therefore, the district court correctly dismissed Salery’s petition for

lack of subject matter jurisdiction.

       AFFIRMED.




       2
        The address listed on the notice of deficiency, sent by certified mail, is the same address
indicated on Salery’s pleadings in this case.
                                                 3
