                          T.C. Memo. 2000-209



                        UNITED STATES TAX COURT



           JOHN L. & LISA K. ERICKSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12436-99.                         Filed July 7, 2000.



     Todd R. Cannon, for petitioners.

     Melinda G. Williams, Richard W. Kennedy, and Gregory M.

Hahn, for respondent.



                          MEMORANDUM OPINION

     COHEN, Judge:   This case is before the Court on respondent's

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

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

section 6213(a).   Unless otherwise indicated, all section

references are to the Internal Revenue Code in effect for the
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year in issue, and all Rule references are to the Tax Court Rules

of Practice and Procedure.

                             Background

     On or about March 12, 1999, petitioners filed with the

Internal Revenue Service (IRS) a Form 2848, Power of Attorney

and Declaration of Representative, appointing Lanny R. White

(White) as their attorney-in-fact regarding their Federal income

tax liability for the taxable years 1995 and 1996.    The Form

2848 listed petitioners' address as S. 6107 Lee Court, Spokane,

Washington (the Spokane address), and White's address as 5295

S. Commerce Drive, Suite 310, Salt Lake City, Utah.

Petitioners’ signatures on the Form 2848 were dated December 16,

1998.   (There is no explanation in the record for the delay in

submitting the Form 2848 to the IRS.)

     Paragraph 7 of the Form 2848 stated in pertinent part that

“Original notices and other written communications will be sent

to you and a copy to the first representative listed in line 2

unless you check one or more of the boxes below.”    Petitioners

checked box 7a on the Form 2848 which stated that all original

notices would be sent to petitioners' attorney-in-fact.

     On April 8, 1999, respondent mailed a notice of deficiency

to petitioners determining a deficiency in their Federal income

tax for 1995 in the amount of $175,693.00 and an accuracy-

related penalty pursuant to section 6662(a) in the amount of
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$35,138.60.   The notice of deficiency included an explanation of

the adjustments which stated that respondent had disregarded

petitioners' "Personal Dental Trust" as a sham and increased

petitioners' business income in an amount equivalent to the net

income of the trust.

     The notice of deficiency correctly stated that the last day

to file a petition with the Tax Court was July 7, 1999.

Respondent mailed the notice of deficiency to petitioners at the

Spokane address.   Respondent did not mail a copy of the notice

of deficiency to White.   Petitioners admit that they received

the notice of deficiency on or about April 12, 1999.

Petitioners did not attempt to contact White or take any other

steps in response to the notice of deficiency.

     White was aware that the 3-year period of limitations on

assessments respecting petitioners' 1995 tax year was due to

expire on April 15, 1999.   Although White was expecting to

receive a copy of the notice of deficiency, he waited until

early July to contact petitioners to ask whether they had

received the notice.   When petitioners informed White that they

had received the notice of deficiency but had misplaced it,

White attempted to contact the revenue agent who had conducted

petitioners' examination to obtain information regarding the

notice.   He was told that the revenue agent was away from the
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office.    The revenue agent contacted White a week later and

informed him that it was too late to file the petition.

     The petition in this case, dated July 8, 1999, arrived at

the Court on July 14, 1999, in an envelope bearing a United

States Postal Service postmark date of July 8, 1999.     At the

time the petition was filed, petitioners resided in Spokane,

Washington.    The petition disputed “all” amounts in the notice

of deficiency.    In lieu of attaching a copy of the statutory

notice, petitioners attached a statement that “We have requested

a copy of the ‘NOTICE OF DEFICIENCY’ from the Internal Revenue

Service.    We will mail to the Court within 10 days.”

     Respondent filed a Motion to Dismiss for Lack of

Jurisdiction asserting that the petition was not timely filed.

Petitioners filed an objection to respondent's motion to dismiss

asserting that the motion should be denied because respondent

failed to mail the notice of deficiency to White.

     This matter was called for hearing at the Court's motions

session held in Washington, D.C., and for an evidentiary hearing

in Spokane, Washington.    Petitioner Lisa K. Erickson and White

testified at the evidentiary hearing.

                             Discussion

     The Court's jurisdiction to redetermine a deficiency

depends upon the issuance of a valid notice of deficiency and a

timely filed petition.     See Rule 13(a), (c); Monge v.
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Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac Intl.

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'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 the notice of deficiency is mailed to file a petition in

this Court for a redetermination of the deficiency.      See sec.

6213(a).

     Respondent mailed the notice of deficiency in question to

petitioners at the Spokane address on April 8, 1999.      There is

no dispute that the petition was mailed to the Court on July 8,

1999–-a date 91 days after the notice of deficiency was mailed.

In short, the petition was neither mailed nor filed prior to the

expiration of the 90-day statutory period for filing a timely

petition.   See secs. 6213(a), 7502; Rule 13(a), (c); Normac,

Inc. v. Commissioner, supra.    Petitioners argue that a valid

notice of deficiency was not sent.
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     Petitioners' position is summarized by the following

excerpt from petitioners' supplemental statement under Rule

50(c):

     Petitioners have never disputed the fact that the
     Notice of Deficiency was sent to their residence
     address. Petitioners' contention, however, is that a
     copy of the Notice should also have been sent to
     Mr. White pursuant to the Form 2848 filed with the
     IRS. The prejudice and the delay comes from the fact
     that Petitioners’ having filed a valid Form 2848
     expected Mr. White to receive the Notice of Deficiency
     and therefore could not be expected to take their own
     steps to get a copy to him. By the time it was
     discovered that Mr. White did not have a copy,
     Petitioners no longer had their copy either.
     Therefore, Petitioners and Mr. White attempted to
     obtain another copy and failing that attempted to
     remember the date for the 90 day filing deadline.

Respondent counters that the notice of deficiency is valid

because petitioners received the notice shortly after it was

mailed.

     Normally, a taxpayer's last known address is the address

shown on the taxpayer's most recently filed return, absent clear

and concise notice of a change of address.   See Abeles v.

Commissioner, 91 T.C. 1019, 1035 (1988).   Where a taxpayer has

executed a Form 2848 and elects to have the Commissioner send

original notices and other written communications to the

attorney-in-fact, we have held that a taxpayer's last known

address is the address of his attorney-in-fact.   See Reddock v.

Commissioner, 72 T.C. 21, 24 (1979); Maranto v. Commissioner,

T.C. Memo. 1999-266.   However, respondent's failure to mail a
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notice of deficiency to the taxpayer's attorney-in-fact does not

necessarily render the notice invalid.   An otherwise erroneously

addressed notice of deficiency remains valid under section

6212(a) if the taxpayer actually receives the notice in

sufficient time to permit the taxpayer, without prejudice, to

file a timely petition for redetermination.   See Looper v.

Commissioner, 73 T.C. 690, 697 (1980); Payne v. Commissioner,

T.C. Memo. 1992-22; see also Patmon & Young Professional Corp.

v. Commissioner, 55 F.3d 216, 217 (6th Cir. 1995), affg. T.C.

Memo. 1993-143.

     In Looper v. Commissioner, supra at 699, we held that

whether a taxpayer has been prejudiced by an improperly

addressed notice of deficiency is a question of fact.   We

further held that the taxpayer's failure to file a timely

petition, while bearing heavily on the question of prejudice, is

only one of several factors that the Court must consider in

deciding the point.   See id.

     Considering all of the facts and circumstances, we conclude

that respondent's failure to mail the notice of deficiency to

White did not result in cognizable prejudice to petitioners.

The cause of late filing was petitioners' misplacing the notice

and faulty recollection of the filing deadline.   Respondent’s

failure to send the notice to White did not prevent petitioners’

receipt of actual notice.
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     Consequently, the notice of deficiency is valid.   Because

petitioners failed to file a timely petition, we shall grant

respondent's Motion to Dismiss for Lack of Jurisdiction.   We

need not decide whether, as respondent contends, the failure to

send the notice to White was due to the short time between the

submission of the Form 2848 (no sooner than March 12) and the

date the statutory notice was mailed (April 8).

     As a final matter, we note that, although petitioners

cannot pursue their case in this Court, they are not without a

remedy.   Petitioners may pay the tax, file a claim for a 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).

     To reflect the foregoing,

                                      An order will be entered

                                 granting respondent's Motion to

                                 Dismiss for Lack of Jurisdiction.
