                         T.C. Memo. 2006-26



                       UNITED STATES TAX COURT



         ROBERT MUSSELMAN AND ADRIANNE MAGD, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7170-05.               Filed February 15, 2006.



     Robert Musselman and Adrianne Magd, pro sese.

     Loren B. Mark, for respondent.



                         MEMORANDUM OPINION


     LARO, Judge:    This case is before the Court on respondent’s

motion to dismiss for lack of jurisdiction on the ground that

petitioners failed to file their petition within the time

prescribed in section 6213(a) or 7502.1   On April 18, 2005,


     1
         Section references are to the applicable versions of the
                                                     (continued...)
                                - 2 -

petitioners filed with this Court a petition for redetermination

of the deficiency reflected in a notice of deficiency that was

sent to them by certified mail on January 3, 2005.2   Respondent

mailed the notice of deficiency to petitioners’ last known

address of 13788 Woodhill Ln., Chino Hills, California 91709.

     Petitioners bear the burden of proving that this Court has

jurisdiction to decide this case.   See Cassell v. Commissioner,

72 T.C. 313, 317-318 (1979).   It is well established that our

jurisdiction requires a valid notice of deficiency and a timely

filed petition, and we must dismiss a case in which either one or

the other is not present.   Sec. 6213(a); Cross v. Commissioner,

98 T.C. 613, 615 (1992).    Section 6213(a) provides that where a

notice of deficiency is addressed to a person within the United

States, the taxpayer may file with this Court a petition to

redetermine the deficiency within 90 days of the mailing of that

notice of deficiency.    Section 7502(a) provides that in general,

timely mailing is treated as timely filing if a petition is

delivered to the Court by U.S. mail after the period prescribed

for its filing and the U.S. postmark date stamped on the envelope

is within the appropriate period.



     1
      (...continued)
Internal Revenue Code.
     2
        When this petition was filed, petitioners lived in Chino
Hills, California. Their petition stated that “TAXPAYER HAS
ADDITIONAL DEDUCTIONS TO CLAIM.”
                               - 3 -

     Under sections 6213(a) and 7503, the 90-day period within

which petitioners could challenge respondent’s determination in

this Court expired on April 4, 2005.     The envelope in which the

petition was mailed to this Court bears no postmark date, but

petitioners did not even sign the petition until April 7, 2005,

which was 3 days after the deadline.     Further, petitioners failed

to respond to respondent’s motion and do not argue that they

mailed the petition on or before the deadline.     Because

petitioners failed to file their petition within the statutory

90-day period, we must grant respondent’s motion to dismiss for

lack of jurisdiction.   Our decision, however, does not deprive

petitioners of their right to contest respondent’s determination

by paying the tax, filing a claim for refund, and then, if the

claim is denied, bringing a suit for refund in a U.S. District

Court or the Court of Federal Claims.     Our decision instead

forecloses petitioners from contesting respondent’s determination

in this suit.   See Budlong v. Commissioner, 58 T.C. 850, 854 n.2

(1972).

     Accordingly,


                                       An order of dismissal will be

                               entered.
