                         T.C. Memo. 2000-347



                       UNITED STATES TAX COURT



         DOUGLAS T. BUSBY & VALARIE E. BUSBY, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10998-99.                      Filed November 8, 2000.



     Usha Ravi, for respondent.


                          MEMORANDUM OPINION

     CARLUZZO, Special Trial Judge:    This deficiency proceeding,

filed pursuant to section 6213(a),1 is before the Court on

respondent’s Motion to Dismiss for Lack of Jurisdiction, filed

December 6, 1999, upon the ground that the petition was not filed

within the period prescribed by that section.      In his response to

respondent’s motion, filed January 18, 2000, Douglas T. Busby


     1
       Section references are to the Internal Revenue Code of
1986, as amended.
                              - 2 -

suggests that the notice of deficiency upon which this case is

based was not mailed to him at his last known address.2   Hearings

on respondent’s motion were conducted in San Francisco,

California, on May 9 and 12, 2000.

     The issue for decision is whether the notice of deficiency

upon which this case is based was sent to petitioners at their

last known address.

Background

     In a notice of deficiency issued and sent by certified mail

on December 16, 1998 (the notice), respondent determined a

deficiency of $3,412 in petitioners’ 1996 Federal income tax.

The petition in this case was filed on June 10, 1999, which is

more than 90 days after the date that the notice was mailed.    On

the date that the petition was filed, petitioners resided at

separate addresses in California.    References to petitioner are

to Valarie E. Busby.

     The notice is addressed to petitioners at 1622 Cherokee

Drive, Salinas, CA 93906 (the Cherokee Drive address).    The

address listed for petitioners on their joint 1996 Federal income

tax return, filed as husband and wife, is 556 Leslie Drive,

Salinas, CA 93906 (the Leslie Drive address).   This address is



     2
       Valarie E. Busby’s response, filed February 15, 2000,
focuses more upon the merits of the adjustments contained in the
notice of deficiency than on the merits of respondent’s
jurisdictional motion.
                               - 3 -

also the address they listed on their 1997 joint return, filed on

or before April 15, 1998.   Petitioner’s 1997 joint return is the

most recently filed return before the notice was issued.

     The examination of petitioners’ 1996 return began sometime

before June 24, 1998.   On that date, a notice of proposed

adjustments (the 30-day letter) relating to 1996 was sent to

petitioners at the Leslie Drive address.   By that time,

petitioner had moved to the Cherokee Drive address.

Nevertheless, she received the 30-day letter, forwarded to the

Cherokee Drive address by the U.S. Postal Service, and noticed it

was mailed to an address no longer current.   This prompted her to

notify respondent of her change of address to Cherokee Drive.

She did so by placing a telephone call to an IRS Service Center

and speaking with one of its employees sometime between June 24

and September 23, 1998.   On the latter date, a duplicate of the

30-day letter was mailed to petitioners at the Cherokee Drive

address.

     During the telephone call with the IRS Service Center

employee, petitioner was asked to provide the Social Security

number of her spouse, which she did.   The information was

necessary because the return under examination and the return

filed most recently before the telephone call were joint returns.

Based upon the information provided by petitioner during the

telephone call, the IRS Service Center employee changed
                               - 4 -

petitioners’ address from the Leslie Drive address, the address

listed on their most recently filed return, to the Cherokee Drive

address.   Based upon her response to respondent’s motion, it

appears that petitioner was still living at the Cherokee Drive

address on the date the notice was issued but moved from that

address shortly thereafter.

     As it turned out, petitioners had separated sometime in

1998, and Douglas T. Busby was not living at either the Leslie

Drive address or the Cherokee Drive address on the date that the

notice was mailed.   It is unclear where he was living on the date

of the above-described telephone conversation between petitioner

and an IRS Service Center employee.    Nevertheless, Douglas T.

Busby was apparently aware of the then ongoing examination.     In

his response to respondent’s motion, he states that, at the time,

he was making “support” payments to petitioner, who told him that

the payments were “also to help pay for any back taxes owed”.

Discussion

     The petition in this case, filed June 16, 1999, was not

filed within 90 days from the date that the notice was issued and

mailed to petitioners.   That being so, we are without

jurisdiction, and the case must be dismissed.    See sec. 6213(a);

Monge v. Commissioner, 93 T.C. 22, 27 (1989).    The specific basis

for doing so, however, requires further discussion because

Douglas T. Busby questions, albeit in an unfocussed manner,
                                 - 5 -

whether the notice was mailed to his last known address.   For the

following reasons, we find that it was.

     Having determined a deficiency in petitioners’ 1996 Federal

income tax, respondent was authorized to send by certified or

registered mail a notice of deficiency to petitioners at their

“last known address”.   Sec. 6212(a) and (b).   Petitioners filed a

joint Federal income tax return for 1996.   Section 6212(b)(2)

states that: “In the case of a joint income tax return filed by

husband and wife, such notice of deficiency may be a single joint

notice, except that if the Secretary has been notified by either

spouse that separate residences have been established, then, in

lieu of the single joint notice, a duplicate original of the

joint notice shall be sent by certified mail or registered mail

to each spouse at his last known address.” (Emphasis added.)

Petitioners do not contend, and nothing in the record

demonstrates, that either of them notified respondent that they

had established separate residences.

     In general, a taxpayer’s last known address is the address

shown on the most recently filed return, absent clear and concise

notice of a change in address.    See King v. Commissioner, 857

F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Abeles

v. Commissioner, 91 T.C. 1019, 1035 (1988).

     In this case, the notice was not mailed to petitioners at

the address listed on their most recently filed joint return.
                               - 6 -

Instead, the notice was mailed to them at an address provided to

respondent by petitioner in a telephone conversation that

occurred sometime between June 24 and September 23, 1998.    As a

result of that telephone call, respondent’s records were changed

not only with respect to petitioner’s address, but also with

respect to Douglas T. Busby.

     Respondent’s internal procedures allow for other than

written “clear and concise” notice of a change of address if such

notice is received by, or provided to, respondent during the

course of an income tax examination.   See 4 Examination, Internal

Revenue Manual, sec. 4243.1(2)(b) (Nov. 14, 1994); see also

Westphal v. Commissioner, T.C. Memo. 1992-599.   During the course

of the examination of petitioners’ 1996 joint return, petitioner

notified respondent of a change of address over the telephone,

and petitioners’ address was changed as a result.   As previously

noted, neither of the petitioners notified respondent that they

had established separate residences.

     According to his response to respondent’s motion, Douglas T.

Busby, who apparently was aware of the then ongoing examination

of his 1996 return, moved several times during the relevant

period.   Nothing in the record suggests that he notified

respondent of any change of address.   Under the circumstances, we

are satisfied that petitioner’s telephone conversation providing

notification of a new address to an IRS Service Center employee
                                 - 7 -

constituted “clear and concise” notice of a change of address not

only for petitioner, a point not really in dispute, but for

Douglas T. Busby as well.   The Cherokee Drive address is

therefore petitioners’ last known address within the meaning of

section 6212, and the notice was properly mailed to them at that

address.   See Abeles v. Commissioner, 91 T.C. 1019 (1988).

     Because the petition in this case was not filed within the

period prescribed by section 6213(a), respondent’s motion will be

granted and the case will be dismissed for lack of jurisdiction

upon that ground.

     To reflect the foregoing,

                                              An appropriate order

                                         dismissing this case for lack

                                      of jurisdiction will be

                                         entered.
