                    T.C. Summary Opinion 2009-154



                       UNITED STATES TAX COURT



                  AKO D. THOMAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7298-09S.                 Filed October 8, 2009.



     Ako D. Thomas, pro se.

     Nancy P. Klingshirn, for respondent.



     RUWE, Judge:   This case was brought pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other


     1
       Unless otherwise indicated, 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 -

case.    This case is before the Court on respondent’s motion to

dismiss for lack of jurisdiction.    Respondent’s motion is based

on the ground that the petition was not timely filed.

                             Background

     At the time the petition was filed, petitioner resided in

Ohio.

     On September 5, 2008, respondent mailed a notice of

deficiency by certified mail to petitioner at his last known

address, determining a $4,164 deficiency in petitioner’s 2007

Federal income tax.    On October 14, 2008, respondent sent to

petitioner a second notice of deficiency by certified mail

concerning petitioner’s 2007 Federal income tax.     The second

notice of deficiency mailed on October 14, 2008, was identical in

all respects to the first notice of deficiency mailed on

September 5, 2008, except for the date and the corresponding

deadline within which to file a petition with this Court.     The

second notice of deficiency was returned to respondent and the

envelope was marked “RETURN TO SENDER - UNCLAIMED - UNABLE TO

FORWARD.”

     On October 20, 2008, respondent received from petitioner a

letter dated October 15, 2008, notifying respondent of

petitioner’s incarceration and change of address.2


     2
       In the petition, petitioner indicated that he has been
incarcerated since Sept. 7, 2008. Respondent contends, however,
                                                   (continued...)
                                 - 3 -

     On March 24, 2009, 200 days after the mailing of the first

notice of deficiency on September 5, 2008, and 161 days after the

mailing of the second notice of deficiency on October 14, 2009,

the petition was filed.   The petition was mailed to the Court in

a properly addressed envelope bearing a privately metered

postmark dated March 16, 2009.

     On September 17, 2009, respondent filed a motion to dismiss

for lack of jurisdiction, on the ground that the petition was not

filed within the time prescribed by section 6213(a).   On

September 28, 2009, petitioner filed an objection to respondent’s

motion to dismiss for lack of jurisdiction.   Petitioner states

that he does not dispute the notice of deficiency dated September

5, 2008, but he does allege that he did not receive either of the

notices of deficiency and, consequently, did not become aware of

the deficiency until after the expiration of the 90-day period

for timely filing a petition.

                            Discussion

     It is well established that this Court’s jurisdiction to

redetermine a deficiency depends upon the issuance of a valid



     2
      (...continued)
that the Ohio Department of Rehabilitation and Correction’s
records indicate that petitioner was admitted into the London
Correctional Institution, London, Ohio, on Sept. 22, 2008. In
any event, both dates are after the mailing of the first notice
of deficiency and petitioner neither advised nor updated
respondent with a change of address until after both notices of
deficiency had been mailed to petitioner’s last known address.
                               - 4 -

notice of deficiency and a timely filed petition.   Rule 13(a),

(c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Abeles v.

Commissioner, 91 T.C. 1019, 1025 (1988); Normac, Inc. v.

Commissioner, 90 T.C. 142, 147 (1988).    Ordinarily, a petition

for redetermination of a deficiency must be filed with this Court

within 90 days after the mailing of the notice of deficiency.

See sec. 6213(a).   The failure to file within the prescribed

period requires that the petition be dismissed for lack of

jurisdiction.   Estate of Rosenberg v. Commissioner, 73 T.C. 1014,

1016-1017 (1980).

     A valid notice of deficiency has been issued if it is mailed

to the taxpayer’s last known address.    Sec. 6212(a) and (b)(1).

Actual receipt of a notice of deficiency is immaterial if, in

fact, it was mailed to the taxpayer’s last known address.    King

v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C.

1042 (1987); Monge v. Commissioner, supra at 33-34; Yusko v.

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

81 T.C. 42, 52 (1983).

     In his objection petitioner states that he does not dispute

the September 5, 2008, notice of deficiency.   Petitioner also

does not dispute that the notices of deficiency were mailed to

his last known address.   Rather, petitioner asserts that not only

did he not receive the notices of deficiency, but also that he
                                 - 5 -

did not become aware of the notices of deficiency until after the

90-day period for filing a petition with this Court had elapsed.

     On the basis of the facts presented, we find that the

petition was not filed within the time prescribed by section

6213(a).3   Accordingly, we will grant respondent’s motion to

dismiss for lack of jurisdiction.

     To reflect the foregoing,


                                              An appropriate order of

                                         dismissal for lack of

                                         jurisdiction will be entered.




     3
       We note that if petitioner did not receive the notices of
deficiency, as he has asserted, then should respondent attempt to
collect by way of lien or levy, petitioner may be eligible to
challenge the underlying tax liability in a subsequent collection
proceeding. See sec. 6330(c)(2)(B).
