                        T.C. Memo. 2006-18



                     UNITED STATES TAX COURT



               KIMBERLEY A. PARLIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4904-05.                 Filed February 6, 2006.



     Stephen K. Midgley, for petitioner.

     Louise R. Forbes, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   This case is before us on respondent’s

motion to dismiss for lack of jurisdiction.    For the reasons

stated below, we must grant respondent’s motion.

                            Background

     On February 11, 2004, petitioner executed Form 2848, Power

of Attorney and Declaration of Representative, appointing
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Stephen K. Midgley (Mr. Midgley) as her attorney in fact.      The

Form 2848 states that “Original notices and other written

communications will be sent to you and a copy” to the listed

representative, unless a box were checked indicating that the

taxpayer wanted a different arrangement.   Petitioner left

unchecked the box on the Form 2848 whereby she could have

indicated that she wanted Mr. Midgley to receive the original,

and herself a copy, of such notices or communications.1

     By Final Notice dated November 29, 2004, respondent denied

petitioner’s request for relief from joint and several liability

pursuant to section 6015.2   Respondent sent the Final Notice to

petitioner’s last known address, the address shown on the Final

Notice, by certified mail.   On December 10, 2004, petitioner

faxed a partial copy of the Final Notice to Mr. Midgley.

     On March 14, 2005, petitioner filed her petition, postmarked

March 7, 2005, challenging respondent’s adverse determination in

the Final Notice.   On June 28, 2005, respondent filed a motion to

dismiss this case for lack of jurisdiction.   On August 3, 2005,

petitioner filed her objection to respondent’s motion.    On

October 17, 2005, a hearing was held on respondent’s motion.


     1
       Petitioner also left unchecked the box whereby she could
have indicated that she wanted no notices or communications sent
to Mr. Midgley.
     2
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                 - 3 -

                               Discussion

     The jurisdiction of this Court depends on the timely filing

of a petition.   Rule 13(c).    Section 6015(e)(1)(A) requires that

a petition to determine relief from joint and several liability

must be filed no later than the close of the 90th day after “the

date the Secretary mails, by certified or registered mail to the

taxpayer’s last known address, notice of the Secretary’s final

determination of relief available to the individual”.

     It is undisputed that the Final Notice denying petitioner’s

administrative request for relief from joint and several

liability was sent to petitioner’s last known address by

certified mail on November 29, 2004.        Thus, pursuant to section

6015(e)(1)(A)(ii), the petition was required to be filed by the

close of February 27, 2005.     The petition was postmarked March 7,

2005, and was not filed until March 14, 2005.       Accordingly, the

petition was untimely, and this case must be dismissed for lack

of timely filing of a petition.

     In opposing respondent’s motion to dismiss, petitioner

alleges various procedural defects in respondent’s issuance of

the Final Notice.   Any such procedural defects, however, would

not operate to give this Court jurisdiction where the petition

was not filed in the 90-day period prescribed by section

6015(e)(1)(A); at most, such procedural defects might implicate

an issue as to whether this case should be dismissed for
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respondent’s failure to issue a valid Final Notice, rather than

for lack of timely filing of a petition.   See Keeton v.

Commissioner, 74 T.C. 377, 379 (1980) (involving failure to file

a timely petition challenging a notice of deficiency under

section 6213(a)).   As discussed below, petitioner has not shown

that respondent failed to issue a valid Final Notice.

     Petitioner alleges that respondent never sent a copy of the

Final Notice directly to Mr. Midgley, as directed on petitioner’s

Form 2848.   Petitioner contends that pursuant to Massachusetts

law, respondent’s alleged failure to give notice to petitioner’s

counsel was “an unfair and deceptive trade practice”.

     The Form 2848, as executed by petitioner, did not authorize

respondent to mail an original document to Mr. Midgley, nor did

it indicate that she had moved to a new address.   Accordingly, it

did not change petitioner’s last known address for purposes of

section 6015(e)(1)(A)(ii) or otherwise affect the mailing

requirements of that section.   See Houghton v. Commissioner, 48

T.C 656, 661 (1967) (similarly construing mailing requirements

for notices of deficiency under section 6212).   Respondent’s

alleged failure to send a copy of the Final Notice to

petitioner’s attorney did not extend the 90-day filing period.

See id.; Allen v. Commissioner, 29 T.C. 113, 117 (1957).

     Petitioner acknowledges that she received the Final Notice

dated November 29, 2004, but complains vaguely that she did not
                                - 5 -

receive it “until later in time”.   Under the statute, however, it

is the mailing and not the taxpayer’s receipt (which almost

inevitably will be later) of the Final Notice that starts the

running of the 90-day period.   In any event, petitioner obviously

had received the Final Notice by December 10, 2004, when she

faxed at least part of it to Mr. Midgley.

     Petitioner alleges that the Final Notice failed to state a

90-day time period for filing a petition in the Tax Court.    The

evidence on this point is inconclusive.3    Section 6015, however,

contains no requirement that the notice of the Secretary’s final

determination of relief specify the time period in which the

taxpayer must petition the Tax Court.4   Accordingly, failure to

specify such a time period does not render the Final Notice




     3
       The only copy of the Final Notice that has been submitted
to the Court appears to be the partial copy that petitioner faxed
to Mr. Midgley on Dec. 10, 2004. At the hearing, Mr. Midgley
indicated that petitioner had failed to “fax both sides of the
page. Apparently, she wasn’t aware that there were two sides to
the page”.
     4
       By contrast, in notices of deficiency mailed after Dec.
31, 1998, the IRS is required to specify the date determined by
the IRS as the last day on which the taxpayer may file a petition
with the Tax Court. Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3463(a), 112 Stat. 767.
Respondent’s failure to provide the petition date as required,
however, has not been construed to render the notice of
deficiency invalid. Rochelle v. Commissioner, 116 T.C. 356
(2001), affd. 293 F.3d 740 (5th Cir. 2002); Smith v.
Commissioner, 114 T.C. 489 (2000), affd. 275 F.3d 912 (10th Cir.
2001).
                               - 6 -

invalid or alter the 90-day filing period pursuant to section

6015(e)(1)(A).

     Mr. Midgley contends that an IRS employee informed him that

he had until March 17, 2005, to petition the Tax Court.

Erroneous legal advice by an IRS employee, however, does not

generally bind the Commissioner and does not affect, by estoppel

or otherwise, the jurisdictional requirement for a timely filed

petition.   See Elgart v. Commissioner, T.C. Memo. 1996-379 (and

cases cited therein).

     In any event, it was petitioner’s and Mr. Midgley’s

responsibility to file the petition on time.   When petitioner

faxed him the partial copy of the Final Notice, Mr. Midgley had

79 days left to file a petition in the Tax Court.    Mr. Midgley

holds himself out as an experienced attorney who has “filed many

applications for innocent spouse relief in the past”.    We do not

find convincing or satisfactory Mr. Midgley’s unquestioning

reliance on informal advice provided by an IRS employee as to the

critical date for filing the Tax Court petition.    Nor is

petitioner availed by Mr. Midgley’s proffered explanation that he

was unable to file the petition on time because of his

“workload”.
                              - 7 -

     Accordingly, we must grant respondent’s motion to dismiss

for lack of jurisdiction for lack of timely filing of a petition.


                                          An appropriate order

                                      of dismissal will be entered.
