                        T.C. Memo. 1996-397



                      UNITED STATES TAX COURT



              RUBEN G. HINOJOS, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 5593-95.                      Filed August 26, 1996.


     Ruben G. Hinojos, Jr., pro se.

     Shari C. Mauney, for respondent.



                        MEMORANDUM OPINION


     COUVILLION, Special Trial Judge:   This case is before the

Court on respondent's motion to dismiss for lack of jurisdiction

under Rule 40.   The basis for the motion is that the petition was

not timely filed under section 6213(a).1


1
     Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
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     Respondent determined the following deficiencies in and

additions to petitioner's Federal income taxes:


                                                 Additions to Tax
     Year              Deficiency                Sec. 6651(a)(1)

     1990               $1,123                        $100
     1991                2,100                         100
     1992                2,099                         100


     Petitioner did not appear on the date this case was

calendared for trial, at which time respondent filed the subject

motion.     In the alternative, respondent orally moved to dismiss

for failure to prosecute properly.          A hearing was held on

respondent's motions.

     At the time the petition was filed, petitioner's legal

residence was Visalia, California.

     The notice of deficiency (statutory notice) bears a date of

December 16, 1994.    The petition was mailed on April 4, 1995, and

was filed with the Court on April 12, 1995, some 117 days after

the date appearing on the notice of deficiency.

     To maintain an action in this Court, there must be a valid

notice of deficiency and a timely filed petition.            Secs. 6212 and

6213; Monge v. Commissioner, 93 T.C. 22, 27 (1989); Abeles v.

Commissioner, 91 T.C. 1019, 1025 (1988).

     Section 6213(a) provides, in pertinent part, that a petition

must be filed with the Tax Court within 90 days from the date a

statutory notice of deficiency is mailed to a taxpayer residing
                                - 3 -


in the United States.   This Court has no jurisdiction over the

case if a petition is filed beyond the prescribed 90-day time

period.    Pyo v. Commissioner, 83 T.C. 626, 632 (1984).

     Respondent bears the burden of proving that the notice of

deficiency was properly mailed.    August v. Commissioner, 54 T.C.

1535, 1536 (1970).   The date appearing on the notice of

deficiency is not proof of the date of mailing.    Southern Calif.

Loan Association v. Commissioner, 4 B.T.A. 223, 226 (1926).     This

Court requires respondent to establish that the notice of

deficiency was properly delivered to the Postal Service for

mailing.   Coleman v. Commissioner, 94 T.C. 82, 90 (1990).    Proof

of mailing is generally established by a properly postmarked U.S.

Postal Service Form 3877 and constitutes highly probative

evidence that a notice of deficiency was, in fact, mailed on the

date postmarked to the taxpayer listed on the form.    Cataldo v.

Commissioner, 60 T.C. 522, 524 (1973), affd. per curiam 499 F.2d

550 (2d Cir. 1974); August v. Commissioner, supra at 1538.

However, the absence of a postmarked Form 3877 is not fatal to

the validity of the notice of deficiency when respondent submits

other documentary evidence or testimony to prove that the notice

of deficiency was timely mailed.   See Shuford v. Commissioner,

T.C. Memo. 1990-422, affd. without published opinion 937 F.2d 609

(6th Cir. 1991); cf. Magazine v. Commissioner, 89 T.C. 321, 326

(1987).
                                - 4 -


     In this case, the statutory notice was sent to petitioner by

mail addressed to P.O. Box 2531, Sunland Park, New Mexico, 88063,

which was the address shown on petitioner's 1990, 1991, and 1992

Federal income tax returns.   The statutory notice was issued by

the Internal Revenue Service Center at Albuquerque, New Mexico

(hereinafter the Albuquerque Center or center).   At the hearing

on respondent's motion, respondent, to establish proof of

mailing, introduced into evidence U.S. Postal Service Form 3877

(Form 3877).   The Form 3877, however, while listing petitioner as

one of the taxpayers to whom a statutory notice was mailed, does

not contain a postmark by the U.S. Postal Service (USPS).

However, respondent submitted additional evidence to establish

the fact and date of mailing, consisting of an affidavit of

Lorraine Sanchez, an Internal Revenue Service tax examiner at the

Albuquerque Center, as to the procedures followed at that center

in mailing statutory notices.

     When a statutory notice is prepared and is to be sent to a

taxpayer, the statutory notice is given a certified mailing

number and recorded on a mailing list, Form 3877, which contains

a listing of all taxpayers to whom statutory notices will be

mailed on a particular day.   A tax examiner then "double checks"

all of the statutory notices with the names on the mailing lists

to verify that all statutory notices to be mailed out are listed.
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The statutory notices are thereafter generally brought to the

mailroom at the center for delivery to the post office.

     On days when the tax examiner is unable to deliver the

statutory notices directly to the post office, the tax examiner

will wait for the USPS daily mail carrier (USPS carrier) to

arrive.    At that time, the USPS carrier is then given the

statutory notices as well as the Form 3877.    The USPS carrier

"double checks" all of the statutory notices with the names on

the Form 3877 to verify that the names on the statutory notices

match those on the Form 3877.    Thereafter, the USPS carrier signs

and dates the Form 3877.    The Form 3877 is not stamped with a

postmark by the USPS carrier because the USPS will not allow mail

carriers to carry postmark rubber stamps.    This routine occurs in

the normal course of business, on average, twice a week.

     The Form 3877 introduced into evidence in this case

indicates that a statutory notice was sent by the Albuquerque

Center to petitioner at the Sunland Park, New Mexico, address for

tax years 1990, 1991, and 1992.    The Form 3877 also indicates

that statutory notices were sent to 12 other taxpayers.    The Form

3877 indicates that the receiving employee of the USPS

postmaster, in this case the USPS carrier, received 13 pieces of

mail that day that were to be sent by certified mail, return

receipt.    The Form 3877 is signed by the USPS carrier and hand
                                - 6 -


dated December 16, 1994.   As noted earlier, the Form 3877 does

not contain a USPS postmark.

     Based on the record in this case, the Court is satisfied

that respondent established that the statutory notice sent to

petitioner was mailed on December 16, 1994.    The date of the

statutory notice, December 16, 1994, corresponds with the date

shown on the Form 3877.    Although the Form 3877 was not stamped

with a USPS postmark, the Form 3877 was completed in the manner

consistent with Ms. Sanchez's attestations of the routine

practice at the Albuquerque Center.     We have no reason to doubt

the contemporaneous record; i.e., the Form 3877 signed and dated

by a USPS employee.   The Form 3877 indicates that the appropriate

number of statutory notices were sent by certified mail, return

receipt, including one to petitioner at the Sunland Park, New

Mexico, address.   The lack of a stamped USPS postmark on the Form

3877 is not fatal in this case because the evidence submitted by

respondent was sufficient to prove that the statutory notice was

mailed on December 16, 1994.    Magazine v. Commissioner, supra;

Shuford v. Commissioner, supra.

     The petition in this case was filed with the Court on

April 4, 1995, 117 days after the date the notice of deficiency

was mailed.   Since the petition was not filed within 90 days from

the date the notice of deficiency was mailed to petitioner, the
                              - 7 -


Court has no jurisdiction over this case.   Pyo v. Commissioner,

supra.   Accordingly,



                                        An order granting

                              respondent's motion to dismiss

                              for lack of jurisdiction will

                              be entered.
