                       T.C. Memo. 1997-524



                     UNITED STATES TAX COURT



                SIMON J. TRUEBLOOD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16969-96.                 November 19, 1997.



     Andrew W. Levenfeld, for petitioner.

     Mayer Y. Silber, for respondent.


                       MEMORANDUM OPINION

     GOLDBERG, Special Trial Judge:     This case was heard pursuant

to section 7443A(b)(3) and Rules 180, 181, and 182.1    This case

is before the Court on petitioner's motion to vacate the granting

on November 5, 1996, of respondent's Motion to Dismiss for Lack



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

of Jurisdiction and to Strike the Taxable Years 1991, 1992, 1993,

and 1994.

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated by this reference.       Petitioner resided in

Merrillville, Indiana, at the time his petition was filed.

     On August 22, 1995, respondent mailed petitioner a "30-day

letter" informing petitioner of proposed adjustments to

petitioner's Federal income taxes for 1991, 1992, and 1993.       The

letter advised petitioner that he had 30 days within which to

notify respondent's appropriate Appeals Office if he disagreed

with the proposed adjustments.

     In a notice of deficiency dated September 21, 1995,

respondent determined deficiencies in petitioner's and his former

wife's income taxes for 1991 and 1992.       In a separate notice of

deficiency dated September 21, 1995, respondent determined a

deficiency in petitioner's income tax for the tax year 1993.      On

September 21, 1995, respondent mailed the notices of deficiency

by certified mail to petitioner at 475 East 60th Place,

Merrillville, Indiana, 46410.2    This address was petitioner's

last known address.   On September 23, 1995, petitioner signed

Domestic Return Receipts (Postal Service Forms 3811)

acknowledging receipt of the notices of deficiency.

2
     The record does not contain copies of the notices of
deficiency with respect to the tax years 1991, 1992, and 1993.
                                3

     By letter dated September 20, 1995, petitioner's counsel

notified the Internal Revenue Service (IRS) that petitioner did

not agree with the adjustments proposed in the 30-day letter and

that he wished to appeal the findings with the Appeals Office.

This letter was delivered by messenger service and was received

on September 21, 1995.   On September 21, 1995, petitioner's

counsel sent a second item, an envelope allegedly containing an

executed power of attorney with respect to petitioner's counsel,

to the IRS.   This second envelope was not received until

September 22, 1995.

     On September 25, 1995, respondent's agent, Linda Yoder, sent

petitioner a letter stating that his request for an appeal was

denied because: (1) "There is not enough time left on the

statute"; and (2) "The statutory notice has been issued."    The

letter also notified petitioner that the IRS had no power of

attorney on file with respect to petitioner's counsel and that

petitioner had until December 21, 1995, to file a petition with

the Tax Court.   This letter was addressed to petitioner at his

last known address.

     On April 3, 1996, respondent received a Form 2848, Power of

Attorney and Declaration of Representative, executed by

petitioner on September 19, 1995.

     By notice of deficiency dated May 9, 1996, respondent

determined a deficiency in petitioner's and his former wife's
                                4

income tax in the amount of $1,486 and an addition to tax in the

amount of $2,688.67, pursuant to section 6651(a)(1) for the tax

year 1990.

     On August 6, 1996, petitioner filed a petition for

redetermination of the deficiency determined by respondent in the

notice of deficiency dated May 9, 1996.   Petitioner further

requested that the Court assume jurisdiction of the taxable years

1991, 1992, 1993, and 1994, and determine that there are no

deficiencies or additions and/or penalties owing for those years.

The 30-day letter was attached to the petition.

     On October 2, 1996, respondent filed a Motion to Dismiss for

Lack of Jurisdiction and to Strike the Taxable Years 1991, 1992,

1993, and 1994.   Respondent moved to dismiss as to the taxable

years 1991, 1992, and 1993, upon the ground that the petition was

not filed within the time prescribed in sections 6213(a) and 7502

and as to the taxable year 1994 upon the ground that no notice of

deficiency had been issued as to that year.   The Court notified

petitioner that an objection to respondent's motion had to be

filed on or before October 22, 1996.   Petitioner did not file a

timely objection.   On November 5, 1996, the Court granted

respondent's motion to dismiss as to the taxable years 1991,

1992, 1993, and 1994, and all references to these years were

stricken from the petition.
                                 5

       On November 12, 1996, petitioner filed a motion to vacate

the dismissal.    In the motion, petitioner requested an additional

30 days, until December 7, 1996, in which to file a memorandum in

support of the motion.    Petitioner's memorandum was received and

filed by the Court on December 23, 1996, as "Supplement to Motion

to Vacate 11-5-96 Order".

       Respondent filed a notice of objection to petitioner's

motion.    A hearing was held on petitioner's motion on April 17,

1997, in Chicago, Illinois.

       Rule 123(c) provides the procedure for setting aside a

dismissal.    Ward v. Commissioner, 92 T.C. 949, 952 (1989), revd.

on other grounds 907 F.2d 517 (5th Cir. 1990).    Under Rule

123(c), the Court may set aside a dismissal, "For reasons deemed

sufficient by the Court and upon motion expeditiously made".    The

granting of a motion under Rule 123(c) is within the discretion

of the Court.    Ward v. Commissioner, supra; Kraasch v.

Commissioner, 70 T.C. 623, 626 (1978).

       Petitioner's motion was expeditiously made as it was filed 7

days after respondent's motion was granted.    Petitioner's stated

reason for not filing a timely objection to respondent's motion

was:    "Due to other litigation commitments, the complexity of the

matter under appeal and the prior personal commitments of counsel

for Petitioner, counsel was not able to file the Notice of

Objection on time."    We do not believe this to be a sufficient
                                 6

reason to set aside the granting of respondent’s motion to

dismiss.   We fail to understand why petitioner was unable to

request additional time to file an objection prior to the

granting of the dismissal.    The Court afforded petitioner an

opportunity to be heard in an attempt to determine if there was

some merit to petitioner's procedural and substantive argument.

Petitioner gave no further reason for failing to file a timely

objection to respondent's October 2, 1996, motion.    Thus, we

could deny petitioner's motion on these grounds alone without

considering his substantive argument.    However, we also recognize

that "This Court has generally favored allowing a party to have

his day in court on the merits of the issue rather than having

the case dismissed on a procedural matter."    Ward v.

Commissioner, supra at 952.

     Petitioner does not contend that his petition was filed

within the time period prescribed by section 6213(a).    Petitioner

contends that the notices of deficiency are invalid because

respondent failed to comply with respondent’s own procedural

rules by issuing the notices of deficiency during the time that

petitioner was permitted to request an appeal of the underlying

proposed adjustments set forth in the 30-day letter.     Petitioner,

however, has not moved to dismiss based on the allegedly invalid

notices of deficiency.
                                7

     Generally, this Court will not look behind a notice of

deficiency to examine the evidence used or the propriety of the

Commissioner's motives or of the administrative policies or

procedures involved in making determinations.     Vallone v.

Commissioner, 88 T.C. 794, 806 (1987); Jackson v. Commissioner,

73 T.C. 394, 400 (1979); Boyer v. Commissioner, 69 T.C. 521, 544

(1977); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324,

327 (1974).   Thus, we will not look into the failure to issue a

30-day letter to taxpayers or failure to afford them an

administrative appeals conference.   Boyer v. Commissioner, supra;

Greenberg's Express, Inc. v. Commissioner, supra; Estate of

Barrett v. Commissioner, T.C. Memo. 1994-535, affd. without

published opinion 87 F.3d 1318 (9th Cir. 1996).    The rationale

for this rule is that a trial before the Tax Court is a

proceeding de novo.   Greenberg's Express, Inc. v. Commissioner,

supra.   Further, procedural rules are directory, not mandatory,

in legal effect, and compliance with them is not essential to the

validity of the notice of deficiency.   Luhring v. Commissioner,

304 F.2d 560 (4th Cir. 1962); Pleasanton Gravel Co. v.

Commissioner, 64 T.C. 510, 529 (1975), affd. 578 F.2d 827 (9th

Cir. 1978); see also Geurkink v. United States, 354 F.2d 629, 632

(7th Cir. 1965).

     Thus, the notices of deficiency for 1991 through 1993 are

not rendered invalid by respondent's failure to afford petitioner
                                  8

an administrative appeal or by respondent's issuance of the

notices of deficiency during the 30-day period.3

     Petitioner also contends that the notices of deficiency

should have been mailed to petitioner's counsel, because

petitioner filed a Form 2848, Power of Attorney.    In Honts v.

Commissioner, T.C. Memo. 1995-532, this Court held that the

language contained in Form 2848 is sufficient to render the

address of the taxpayer's representative as the last known

address of the taxpayer.4    However, if mailing results in actual

notice without prejudicial delay, the notice of deficiency meets

the conditions of section 6212(a) no matter what address was

used.   McKay v. Commissioner, 89 T.C. 1063, 1067 (1987), affd.

886 F.2d 1237 (9th Cir. 1989); Mulvania v. Commissioner, 81 T.C.

65, 68 (1983).

     It is undisputed that the notices of deficiency were mailed

to petitioner's last known address.    Assuming arguendo that the

power of attorney was the item hand delivered to respondent,

respondent would have received petitioner's power of attorney on

September 22, 1995, at the earliest, the day after the notices of

deficiency were mailed.     Honts v. Commissioner, supra, is clearly

3
     We are without jurisdiction for 1994 because it is
undisputed that no notice of deficiency was issued for that year.
See secs. 6212 and 6213.
4
     In Honts v. Commissioner, T.C. Memo. 1995-532, the Court
found that the taxpayer's "last known address" was that contained
on the Form 2848 received by the Commissioner over 1 year prior
to the mailing of the notice of deficiency.
                                 9

distinguishable from the facts here, and, therefore, the holding

does not apply.   Moreover, petitioner actually received the

notices of deficiency on September 23, 1995.    We find that the

conditions of section 6212(a) were satisfied.

     Petitioner's motion to vacate the granting of respondent's

Motion to Dismiss for Lack of Jurisdiction and to Strike as to

the Taxable Years 1991, 1992, 1993, and 1994 is denied.

     To reflect the foregoing,


                                                An appropriate order

                                         will be issued.
