                        T.C. Memo. 1997-167



                      UNITED STATES TAX COURT



           JOHN B. MARKHAM, Petitioner v. COMMISSIONER
                OF INTERNAL REVENUE, Respondent



     Docket No. 23398-96.                      Filed April 7, 1997.



     John B. Markham, pro se.

     Stuart Spielman, for respondent.


                        MEMORANDUM OPINION


     FAY, Judge:   This case was assigned to Special Trial Judge

Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.1     The Court agrees with


     1
        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.
and adopts the opinion of the Special Trial Judge, which is set

forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:      This matter is before the Court

on respondent's Motion to Dismiss for Lack of Jurisdiction, filed

December 23, 1996.

Background

     Respondent mailed duplicate original notices of deficiency

(the notice of deficiency) to petitioner on July 26, 1996.       In

the notice of deficiency, respondent determined that petitioner

is liable for additions to tax for the taxable years and in the

amounts as follows:

                             Additions to Tax
                                                      Penalty
          Year         Sec. 6653(b)   Sec. 6651(f)   Sec. 6663

          1988         $4,472.25          --            --
          1989             --         $10,953.75        --
          1990             --          15,451.50        --
          1991             --          11,513.25        --
          1992             --           6,417.00        --
          1993             --             --          $828.75
          1994             --             --         2,616.00

Respondent mailed the notice of deficiency to petitioner at two

different addresses:    (1) RD1, Box 254, Chenango Forks, New York

13746 (the Chenango Forks address), and (2) #06471052, P.O. Box

2000, Unit 1, Lewisburg Camp, Lewisburg, Pennsylvania 17837 (the

Lewisburg address).    Respondent did not mail a copy of the notice

of deficiency to any authorized representative.

     The notice of deficiency that was mailed to the Chenango

Forks address is undated.    The record does not reveal whether the
                                 - 3 -


notice of deficiency that was mailed to the Lewisburg address was

also undated.2

     Petitioner filed a petition for redetermination (the

petition) with the Court on October 30, 1996.3    The petition,

signed by petitioner, is dated October 25, 1996.    The petition

states that petitioner received the notice of deficiency in

August 1996.     Attached to the petition is a copy of the notice of

deficiency that was mailed to the Chenango Forks address.4

     The petition arrived at the Court in an envelope bearing the

return address label of Kenneth P. Whiting, an attorney from

Binghamton, New York.    The envelope bears a private postage meter

postmark label that appears to have been inadvertently cut in

half from top to bottom.    The portion of the postmark date

appearing on the label that is missing is the month of mailing.

The portion of the postmark date that remains reads "25 '96",

thus indicating that the envelope was mailed in 1996 on the 25th

day of some month.    We are also able to discern from the postmark

that the city of origin is Binghamton, New York.    Considering all

of the circumstances, we are satisfied that the private postage



     2
       The copy of such notice that was retained by respondent in
her administrative file is dated July 26, 1996.
     3
        At the time that the petition was filed, petitioner was
incarcerated at the Lewisburg Prison Camp in Lewisburg,
Pennsylvania (the Lewisburg prison camp).
     4
        The record does not include a copy of the notice of
deficiency mailed to the Lewisburg address.
                               - 4 -


meter postmark date on the envelope containing the petition is

October 25, 1996, the date that the petition was signed.

     As indicated, on December 23, 1996, respondent filed a

Motion to Dismiss for Lack of Jurisdiction on the ground that the

petition was not filed within the 90-day period prescribed by

section 6213(a) or section 7502.   Attached to respondent's motion

is a copy of Postal Service Form 3877, which shows that duplicate

notices of deficiency were mailed to petitioner on July 26, 1996.

     On January 10, 1997, petitioner filed a reply to

respondent's motion asserting that the Commissioner bears the

burden of proving the date that a notice of deficiency is mailed.

Petitioner's reply further states:

     When Petitioner actually received the notice the prison
     was in a complete shut-down. Circumstances that
     Petitioner could not control. As soon as possible,
     Petitioner retained a lawyer for the purpose of
     formulating a petition. The lawyer [formulated] the
     petition and mailed it to the Petitioner for approval
     and signature. Again, the mail was not delivered
     timely and a lot of time was wasted, waiting on the
     prison personnel. After reading the petition and
     signing it, there was more delays in getting the
     petition out of the prison and into the main stream of
     postal items.

     Respondent's motion was called for hearing in Washington,

D.C., on February 26, 1997.   Counsel for respondent appeared at

the hearing and presented argument in support of respondent's

motion.   Petitioner filed a Rule 50(c) statement with the Court

contesting the merits of respondent's determination.
                                - 5 -


Discussion

     This Court's jurisdiction to redetermine a deficiency

depends upon 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); 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 at the taxpayer's

"last known address".    Sec. 6212(b); 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 that the notice of deficiency is mailed to

file a petition in this Court for a redetermination of the

deficiency.   Sec. 6213(a).

     Based upon the Postal Service Form 3877 attached to

respondent's motion to dismiss, and petitioner's statement in his

petition that he received the notice of deficiency in August

1996, we are satisfied that respondent mailed the notice of

deficiency to petitioner on July 26, 1996.   See Coleman v.

Commissioner, 94 T.C. 82, 90-91 (1990).   Moreover, the fact that

petitioner received an undated notice of deficiency does not

preclude respondent from asserting that the petition was not
                                - 6 -


timely filed.5   See Casqueira v. Commissioner, T.C. Memo. 1981-

428; Hurst, Anthony & Watkins v. Commissioner, 1 B.T.A. 26

(1924).

     The 90-day period for filing a timely petition with the

Court expired on Thursday, October 24, 1996.    As previously

noted, the private postage meter postmark date on the envelope

containing the petition is October 25, 1996.    Because the

petition was neither mailed nor filed with this Court within the

90-day period prescribed in section 6213(a) and section 7502, it

therefore follows that this case must be dismissed for lack of

jurisdiction.

     Although petitioner does not dispute that the notice of

deficiency was mailed to him at his last known address,

petitioner makes vague and wholly unsubstantiated claims that his

failure to file a timely petition is attributable to delays in

the mail system of the Lewisburg prison camp.    Given petitioner's

statement that he received the notice of deficiency in August

1996, petitioner had, at a minimum, nearly 2 months to file a

timely petition with the Court.   He has not established the date

on which he deposited his petition in the prison mail system.

Nor has he shown that delays in the prison mail system caused him

to file an untimely petition.   See, e.g., Curry v. Commissioner,


     5
       It should be recalled that the record does not reveal
whether the notice of deficiency that was mailed to the Lewisburg
address was also undated; however, the copy of such notice that
was retained by respondent in her administrative file is dated.
                                 - 7 -


571 F.2d 1306, 1309-1310 (4th Cir. 1978); Woods v. Commissioner,

T.C. Memo. 1991-433, affd. without published opinion 967 F.2d 597

(9th Cir. 1992).

     Consistent with the foregoing, we shall grant respondent's

motion to dismiss for lack of jurisdiction on the ground that

petitioner failed to file a timely petition for redetermination.6

     To reflect the foregoing,

                                      An order granting

                                 respondent's Motion to Dismiss

                                 for Lack of Jurisdiction will

                                 be entered.




     6
        Although petitioner cannot pursue his case in this Court,
he is not without a legal remedy. In short, petitioner may pay
the tax, file a claim for refund with the Internal Revenue
Service, and if the claim is denied, sue for a refund in the
Federal District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
