                  T.C. Summary Opinion 2001-138



                      UNITED STATES TAX COURT



                  NANCI A. BERNARD, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 1601-01S.                 Filed September 5, 2001.


     Nanci A. Bernard, pro se.

     Julie A. Pals, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463.1   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.




     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.
                               - 2 -


     This case is before the Court on respondent's Motion to

Dismiss for Lack of Jurisdiction, filed March 20, 2001.   As

discussed in detail below, we shall grant respondent's motion.

Background

     On January 19, 2000, respondent mailed a notice of

deficiency to petitioner determining a deficiency in her Federal

income tax for 1998 in the amount of $2,785 (the deficiency

notice for 1998).   Also on January 19, 2000, respondent mailed a

notice of deficiency to petitioner determining a deficiency in

her Federal income tax for 1997 in the amount of $2,134 (the

deficiency notice for 1997).

     Respondent sent both the deficiency notice for 1998 and the

deficiency notice for 1997 by certified mail addressed to

petitioner at 112 Bayview Drive, Grasonville, MD 21638 (the

Grasonville address).   Petitioner received the deficiency notice

for 1997 shortly after it was mailed; in contrast, petitioner

does not recall receiving the deficiency notice for 1998 until

August 2000.   According to respondent, the deficiency notice for

1998 was not returned to respondent by the U.S. Postal Service.

     On April 20, 2000, petitioner timely filed a petition for

redetermination (assigned docket No. 4419-00S) contesting

respondent’s deficiency determination for 1997.   Attached to the

petition as an exhibit was a copy of the deficiency notice for
                                - 3 -


1997.    The petition reflects petitioner’s address as 1462 Stoney

Point Way, Baltimore, Maryland 21226 (the Baltimore address).

     On February 9, 2001, petitioner filed a petition for

redetermination (assigned docket No. 1601-01S, i.e., the instant

case) contesting respondent’s deficiency determination for 1998.

Attached to the petition as exhibits were copies of collection

notices relating to the taxable year 1998 that were sent to

petitioner at the Baltimore address.      The petition reflects

petitioner’s address as 8103 Ventnor Road, Pasadena, Maryland

21122.    The petition arrived at the Court in an envelope bearing

a U.S. Postal Service postmark date of February 7, 2001.

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction on March 20, 2001.      In the motion, respondent

contends that this case should be dismissed for lack of

jurisdiction on the ground that the petition was not filed within

the time prescribed by section 6213(a) or section 7502.

     Petitioner filed an objection to respondent's motion to

dismiss.    In her objection, petitioner contends that respondent

failed to mail the deficiency notice for 1998 to her at the

correct address.

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

session in Washington, D.C., on May 30, 2001.      Petitioner and

counsel for respondent appeared and presented evidence.      In

particular, respondent introduced copies of petitioner’s Federal
                               - 4 -


income tax returns, Forms 1040, for 1998 and 1999.   The 1998

return, which was filed in April 1999, lists the Grasonville

address as petitioner’s then current address; in contrast, the

1999 return, which was filed in April 2000, lists the Baltimore

address as petitioner’s then current address.

     At the hearing, petitioner stated that she moved from the

Grasonville address to the Baltimore address in late November

1999 and that she moved from the Baltimore address to the

Pasadena address in December 2000.

Discussion

     This 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.

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.   A notice of deficiency is sufficient if it is

mailed to the taxpayer at the taxpayer's last known address.    See

sec. 6212(b)(1).   If the notice is mailed to the taxpayer at the

taxpayer's last known address, actual receipt of the notice by

the taxpayer is immaterial.   See King v. Commissioner, 857 F.2d

676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Yusko v.

Commissioner, 89 T.C. 806, 810 (1987); Frieling v. Commissioner,
                               - 5 -


81 T.C. 42, 52 (1983).   In turn, the taxpayer has 90 days (or 150

days if the notice is addressed to a person outside the United

States) from the date that the notice is mailed to file a

petition for redetermination of the deficiency.   See sec.

6213(a); see also sec. 7502 (treating timely mailing as timely

filing).

     It is clear in the present case that the deficiency notice

for 1998 was mailed to petitioner on January 19, 2000.   It is

equally clear that the petition in respect of that notice was not

filed (or mailed) within the requisite 90-day period.

Accordingly, it follows that we must dismiss this case for lack

of jurisdiction.   However, in view of petitioner's contention

that the deficiency notice for 1998 was not mailed to the correct

address, which contention we regard as tantamount to a contention

that the deficiency notice for 1998 was not mailed to her at her

last known address, the issue for decision is whether the

dismissal of this case should be based on petitioner's failure to

file a timely petition under section 6213(a) or whether dismissal

should be based on respondent's failure to issue a valid notice

of deficiency under section 6212.   If jurisdiction is lacking

because of respondent's failure to issue a valid notice of

deficiency, we shall dismiss on that ground, rather than for lack

of a timely filed petition.   Pietanza v. Commissioner, 92 T.C.

729, 735-736 (1989), affd. without published opinion 935 F.2d
                               - 6 -


1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430, 435

(1980); Keeton v. Commissioner, 74 T.C. 377, 379-380 (1980).

     Although the phrase "last known address" is not defined in

the Internal Revenue Code or in the regulations, we have held

that absent clear and concise notice of a change of address, a

taxpayer's last known address is the address shown on the

taxpayer’s return that was most recently filed at the time that

the notice was issued.   King v. Commissioner, supra at 681;

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

whether the Commissioner mailed a notice to a taxpayer at the

taxpayer's last known address, the relevant inquiry “pertains to

[the Commissioner’s] knowledge rather than to what may in fact be

the taxpayer's most current address."   Frieling v. Commissioner,

supra at 49.   The burden of proving that the notice was not sent

to the taxpayer at the taxpayer's last known address is on the

taxpayer.   See Yusko v. Commissioner, supra at 808.

     Respondent mailed the deficiency notice for 1998 to the

address listed on petitioner's 1998 return--the last return filed

by petitioner prior to the mailing of such notice on January 19,

2000.2   Consequently, the deficiency notice for 1998 was mailed

to petitioner at her last known address unless petitioner can



     2
        It should be recalled that petitioner’s 1999 return,
which listed the Baltimore address as petitioner’s address, was
not filed with respondent until April 2000.
                                - 7 -


demonstrate: (1) She provided respondent with clear and concise

notice of a change of address; or (2) prior to the mailing of the

deficiency notice for 1998, respondent knew of a change in

petitioner's address and did not exercise due diligence in

ascertaining petitioner's correct address.   See Abeles v.

Commissioner, supra; Keeton v. Commissioner, supra at 382; Alta

Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974),

affd. without published opinion 538 F.2d 334 (9th Cir. 1976).

     There is nothing in the record to suggest that petitioner

gave respondent clear and concise notice of her change of address

from the Grasonville address to the Baltimore address.3   Nor is

there anything in the record to suggest that respondent knew

about such change of address.   Indeed, given the short interval

between petitioner’s relocation in late November 1999 and the

issuance of the deficiency notice for 1998 on January 19, 2000,

there would have been limited opportunity for respondent to have

learned about petitioner’s change of address.   Moreover, we take


     3
        The fact that petitioner may have provided notification
of her change of address to the U.S. Postal Service does not, in
and of itself, mean that petitioner provided notification to
respondent. See Adams v. Commissioner, T.C. Memo. 1994-365 (the
filing of a forwarding order with the Postal Service is not clear
and concise notification to the Commissioner of the taxpayer’s
change of address), affd. without published opinion sub nom.
Miller v. Commissioner, 61 F.3d 916 (10th Cir. 1995). In other
words, a taxpayer who does not notify the Commissioner of his or
her change of address but merely relies on the Postal Service to
forward mail bears the risk of any failure of the Postal Service
to properly forward such mail. Id.
                               - 8 -


note of the fact that petitioner received the deficiency notice

for 1997, which was also mailed to her at the Grasonville address

on January 19, 2000, within sufficient time to file a timely

petition in respect of that notice.    We also take note of

respondent’s representation that the deficiency notice for 1998

was not returned to respondent by the U.S. Postal Service.

Conclusion

     In view of the foregoing, we hold that the deficiency notice

for 1998 was valid because it was sent to petitioner at her last

known address.   Accordingly, because petitioner did not file her

petition within the time prescribed by section 6213(a) or section

7502, we lack jurisdiction to redetermine petitioner’s tax

liability for 1998, and we are left with no alternative but to

grant respondent's motion to dismiss for lack of jurisdiction.4




     4
        Although petitioner cannot pursue her case for 1998 in
this Court, she is not without a judicial remedy. Specifically,
petitioner may pay the tax, file a claim for refund with the
Internal Revenue Service, and, if her claim is denied, sue for a
refund in the appropriate Federal District Court or the U.S.
Court of Federal Claims. See McCormick v. Commissioner, 55 T.C.
138, 142 (1970). Moreover, if petitioner did not receive the
deficiency notice for 1998 within such time as to file a timely
petition with this Court, petitioner may have administrative and
judicial remedies before respondent may legally commence enforced
collection action against her. See secs. 6330(c)(2)(B), 6320(c).
Finally, we note that the granting of respondent’s motion to
dismiss for lack of jurisdiction will in no way preclude the
parties from administratively resolving the substantive issues
for 1998.
                             - 9 -


    Reviewed and adopted as the report of the Small Tax Case

Division.

    In order to give effect to the foregoing,



                             An order granting respondent's

                        motion and dismissing this case for lack

                        of jurisdiction will be entered.
