                       T.C. Memo. 1996-474



                     UNITED STATES TAX COURT



              WARREN RICHARD FOLLUM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 7975-96.                    Filed October 22, 1996.


     Warren Richard Follum, pro se.

     Jordan S. Musen and Paul G. Topolka, for respondent.


                       MEMORANDUM OPINION

     PANUTHOS, Chief Special Trial Judge:    This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 183.1

     This matter is before the Court on respondent's motion to

dismiss for lack of jurisdiction, petitioner's motion to dismiss

1
   All section references are to the Internal Revenue Code in
effect for the years in issue, unless otherwise indicated. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 2 -


for lack of jurisdiction, and petitioner's motion to restrain

collection.   Although respondent contends that this case must be

dismissed on the ground that petitioner failed to file his

petition within the 90-day period prescribed in section 6213(a),

petitioner argues that dismissal should be based on respondent's

failure to issue a valid notice of deficiency under section 6212.

There being no question that we lack jurisdiction over the

petition filed herein, we must resolve the parties' dispute

respecting the proper ground for dismissal.   Because we lack

jurisdiction in this case, it follows, as discussed in greater

detail below, that we likewise lack the authority to restrain

collection in this case.

Background

     In June 1994, respondent mailed a letter to petitioner at

274 Stoneycreek Drive, Rochester, New York (the Rochester

address), proposing adjustments to his Federal income taxes for

the years 1991, 1992, and 1993.   Petitioner listed the Rochester

address on his tax returns for the years 1990, 1991, 1992, and

1993 and continued to reside at that address until April 1995.

     In April 1995, petitioner moved to Wilmington, North

Carolina, in search of work.   In the meantime, petitioner filed

his 1994 Federal income tax return in March 1995 listing his

address as P.O. Box 3673, Wilmington, North Carolina 28406-0673

(the Wilmington address).
                               - 3 -


     In early August 1995, petitioner closed the Wilmington post

office box and moved to 4997 Creek Road, Lewiston, New York (the

Lewiston address).

     On August 29, 1995, respondent mailed a letter to petitioner

at the Wilmington address stating that petitioner's tax returns

for 1990, 1991, 1992, and 1993 had been selected for audit and

requesting that petitioner appear at respondent's offices in

Wilmington on September 26, 1995.   Petitioner maintains that he

did not receive this letter.   Respondent's files do not indicate

that the letter was returned to respondent undelivered.

     On September 27, 1995, respondent issued a second letter to

petitioner at the Wilmington address proposing adjustments to

petitioner's taxes for the years 1990, 1991, 1992, and 1993.

Petitioner maintains that he did not receive this letter.

Respondent's files do not indicate that the letter was returned

to respondent undelivered.

     On November 3, 1995, respondent mailed two separate notices

of deficiency2 to petitioner determining deficiencies in and an

addition to his Federal income taxes for the taxable years 1990,

1991, 1992, and 1993 as follows:




2
   One of the notices includes the determination for 1990, and
the other notice includes the determination for 1991, 1992, and
1993.
                                - 4 -


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

       1990        $4,107                ---
       1991         7,233                ---
       1992         4,790               $832
       1993         3,232                ---


The notices of deficiency were mailed to petitioner in a single

envelope addressed to petitioner at the Wilmington address as

listed in petitioner's 1994 tax return--the last return filed by

petitioner prior to the mailing of the above-described notices of

deficiency.

     Petitioner concedes that he did not provide respondent with

notice of his change of address to the Lewiston address between

the time that he filed his 1994 tax return and the date that

respondent mailed the above-described notices of deficiency.

     On February 23, 1996, the envelope bearing the notices of

deficiency was returned to respondent undelivered and marked "BOX

CLOSED UNABLE TO FORWARD RETURN TO SENDER".     There is no

explanation in the record why it took the U.S. Postal Service

over 3 months to return to respondent the envelope bearing the

undelivered notices of deficiency.      In any event, upon receipt of

the undelivered notices of deficiency, respondent's agents

conducted a computer search in an effort to obtain petitioner's

correct address.    As a result of that search, and relying upon

information reported to respondent by third parties on Forms 1099

and W-2, respondent mailed copies of the notices of deficiency to
                               - 5 -


petitioner at the Rochester address.   Apparently there was an

outstanding forwarding request with the U.S. Postal Service from

the Rochester address to the Lewiston address.   Petitioner

received the copies of the notices sent at this point when they

were forwarded to the Lewiston address.

     Petitioner filed a petition for redetermination with the

Court on April 29, 1996.   The petition was delivered to the Court

in an envelope bearing a U.S. Postal Service postmark date of

April 24, 1996.3

     On June 17, 1996, respondent mailed separate notices of

intent to levy to petitioner in respect of his tax liabilities

for 1990, 1991, 1992, and 1993.   These notices were mailed to

petitioner at the Lewiston address.

     As indicated, respondent filed a motion to dismiss for lack

of jurisdiction alleging that petitioner failed to file his

petition within the 90-day period prescribed in section 6213(a).

Petitioner filed both an objection to respondent's motion to

dismiss and his own motion to dismiss for lack of jurisdiction

alleging that the notices of deficiency were not mailed to his

correct address.   Petitioner asserts that his last known address

is the Rochester address--the address appearing on the tax




3
   At the time the petition was filed, petitioner resided at
Lewiston, New York.
                                 - 6 -


returns for the years in issue.    In addition, petitioner filed a

motion to restrain collection.

     A hearing was conducted in this case in Washington, D.C.

Petitioner and counsel for respondent appeared at the hearing and

presented argument in respect of the pending motions.

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's "last known

address".    Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52

(1983).   If a notice of deficiency is mailed to the taxpayer at

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

is immaterial.    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, supra at 52.    The

taxpayer, in turn, has 90 days from the date the notice of

deficiency is mailed to file a petition in this Court for a

redetermination of the deficiency.       Sec. 6213(a).
                               - 7 -


     Respondent mailed the notices of deficiency in this case on

November 3, 1995.   The petition in this case was postmarked April

24, 1996, and was filed by the Court on April 29, 1996.    Given

that the petition was neither mailed nor filed prior to the

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

petition, it follows that we lack jurisdiction over the petition.

Secs. 6213(a), 7502; Rule 13(a), (c); see Normac, Inc. v.

Commissioner, supra.

     The question presented is whether dismissal of this case

should be premised on petitioner's failure to file a timely

petition under section 6213(a) or on respondent's failure to

issue a valid notice of deficiency under section 6212.    As

previously indicated, petitioner contends that respondent failed

to mail the notices of deficiency to his last known address.     We

disagree.

     Petitioner contends that his last known address was the

Rochester address--the address listed in his tax returns for the

years in issue.   Although the phrase "last known address" is not

defined in the Internal Revenue Code or in the regulations, we

have held that 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.   Abeles v.

Commissioner, 91 T.C. 1019, 1035 (1988); see King v.

Commissioner, supra at 681.   The taxpayer bears the burden of
                               - 8 -


proving that a notice of deficiency was not sent to his last

known address.   Yusko v. Commissioner, supra at 808.

     Contrary to petitioner's position, we conclude that the

notices of deficiency were mailed to his last known address.

Respondent mailed the notices of deficiency to petitioner at the

Wilmington address--the address appearing on petitioner's 1994

tax return, which was the last return filed by petitioner prior

to the mailing of the notices of deficiency.     Moreover,

petitioner concedes that, after filing his 1994 tax return but

prior to the mailing of the notices of deficiency, he did not

provide respondent with clear and concise notice that he intended

for respondent to correspond with him at any address other than

the Wilmington address.

     Petitioner erroneously relies on Armstrong v. Commissioner,

15 F.3d 970 (10th Cir. 1994), affg. T.C. Memo. 1992-328, for the

proposition that his last known address is the address appearing

on his tax returns for the years in issue.     Specifically,

Armstrong v. Commissioner, supra at 974, includes a statement,

consistent with the principle articulated above, that the address

on the taxpayer's most recent tax return is ordinarily treated as

the taxpayer's last known address.     Although the court in

Armstrong held that the address appearing on the taxpayer's tax

returns for the years in issue constituted the taxpayer's last

known address, it did so only after finding that the revenue
                               - 9 -


agent had alertly discovered that the address appearing on the

taxpayer's most recent tax return was nonexistent.    Id.   In this

regard, petitioner's reliance on Armstrong is misplaced.

     Petitioner also contends that respondent did not exercise

reasonable diligence in ascertaining his correct address.

Underlying this argument is petitioner's assumption that

respondent was aware, prior to issuing the notices of deficiency,

that the Wilmington address was incorrect.    In particular,

petitioner contends that, because he did not receive the two

letters that respondent mailed to him at the Wilmington address

during August and September 1995, those letters must have been

returned to respondent undelivered.    However, we are unable to

conclude, on the record presented, that the letters in question

were returned to respondent undelivered.    In short, respondent

has no record in her files indicating that the letters were

returned undelivered, and petitioner presented no evidence to

show otherwise.   Under the circumstances, we are not persuaded

that respondent failed to exercise reasonable diligence in

ascertaining petitioner's correct address.

     In accordance with the preceding discussion, we hold that

respondent mailed the notices of deficiency to petitioner at his

last known address.   As a consequence, we will grant respondent's

motion to dismiss for lack of jurisdiction on the ground that
                              - 10 -


petitioner failed to file a timely petition for redetermination,

and we will deny petitioner's motion to dismiss.4

     With the foregoing as background, we turn to petitioner's

motion to restrain collection.    Under section 6213(a), our

jurisdiction to restrain the Commissioner from assessing or

collecting a tax deficiency is limited to cases where "a timely

petition for redetermination of the deficiency has been filed and

then only in respect of the deficiency that is the subject of

such petition."   See Powerstein v. Commissioner, 99 T.C. 466, 471

(1992); Powell v. Commissioner, 96 T.C. 707, 710-711 (1991).

Because petitioner failed to file a timely petition for

redetermination, it follows that we lack the authority to

restrain respondent from collecting taxes for the years in

question.

     To reflect the foregoing,

                                 An order will be entered

                          granting respondent's motion to

                          dismiss for lack of jurisdiction,

                          denying petitioner's motion to

                          dismiss for lack of jurisdiction,


4
   Although petitioner cannot pursue his case in this Court, he
is not without a 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 Federal District Court
or the U.S. Court of Federal Claims. See McCormick v.
Commissioner, 55 T.C. 138, 142 (1970).
    - 11 -


and denying petitioner's motion to

restrain collection.
