                        T.C. Memo. 1997-114



                      UNITED STATES TAX COURT



   MANLEY MULLINGS AND MELVINA BARNES-MULLINGS, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8858-95.                Filed March 5, 1997.



     Manley Mullings and Melvina Barnes-Mullings, pro sese.

     Linda P. Azmon and Laurence D. Ziegler, for respondent.



                        MEMORANDUM OPINION



     DAWSON, Judge:   This case was assigned to Special Trial

Judge Norman H. Wolfe pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.     All section references

are to the Internal Revenue Code in effect for the tax years in

issue, unless otherwise indicated.   All Rule references are to
                               - 2 -

the Tax Court Rules of Practice and Procedure.   The Court agrees

with and adopts the opinion of the Special Trial Judge, which is

set forth below.

               OPINION OF THE SPECIAL TRIAL JUDGE

     WOLFE, Special Trial Judge:   This matter is before the Court

on petitioners' motion to vacate order of dismissal.    A hearing

has been held on petitioners' motion.

     Petitioners resided at 1500 Putnam Avenue, Brooklyn, New

York 11237, when their petition was filed.   Such address was

petitioners' last known address at all times relevant to this

case.

     On April 17, 1989, respondent mailed a notice of deficiency

for taxable year 1985 by certified mail to petitioners at their

last known address.   Petitioners received that notice without

delay.

     On May 24, 1995, petitioners filed a petition with this

Court pertaining to taxable years 1985 and 1986.    Petitioners

filed an amended petition pertaining to those same years on June

12, 1995.1

     Respondent filed a motion to dismiss for lack of

jurisdiction on July 17, 1995, and petitioners filed an objection

thereto one week later.   In her motion, respondent moved for

dismissal with respect to 1985 on the ground that the petition

1
     The amended petition was filed in response to this Court's
order for proper petition and filing fee.
                                - 3 -

was not filed timely, and with respect to 1986 on the ground that

a notice of deficiency had not been issued for that year.      On

August 10, 1995, this Court granted respondent's motion and

entered an order of dismissal for lack of jurisdiction on the

grounds asserted by respondent in her motion.    Thereafter,

petitioners filed a motion to vacate order of dismissal, and

respondent filed an objection thereto soon thereafter.    In her

objection, respondent asserted for the first time that a notice

of deficiency for taxable year 1986 had been issued to

petitioners on March 8, 1990.   Respondent contends that this

Court still lacks jurisdiction over 1986, as well as 1985, on the

ground that the petition was not filed timely.

     The jurisdiction of this Court is governed by statute.      Sec.

7442.   In order to maintain an action in this Court there must be

a valid 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).     Under section 6212,

a notice of deficiency is sufficient if it is mailed to the

taxpayer's last known address by certified or registered mail.

Sec. 6212(a) and (b).   A notice of deficiency will be deemed

valid, whether or not received by the taxpayer, if it was mailed

to the taxpayer's last known address.   Tadros v. Commissioner,

763 F.2d 89, 91 (2d Cir. 1985), affg. an unpublished Order of

this Court; Frieling v. Commissioner, 81 T.C. 42, 48, 52 (1983).

In general, a petition must be filed with the Tax Court within 90
                               - 4 -

days from the date a statutory notice of deficiency is mailed to

a taxpayer residing in the United States.   Sec. 6213(a).    If a

petition is not filed within the 90-day period, this Court does

not acquire jurisdiction of the case.   Cataldo v. Commissioner,

60 T.C. 522 (1973), affd. per curiam 499 F.2d 550 (2d Cir. 1974).

     The petition in this case was filed on May 24, 1995.     As

indicated above, if there is a valid notice of deficiency and the

petition is filed after expiration of the statutory filing

period, the petition must be dismissed for lack of jurisdiction

as untimely.   Sec. 6213(a); Rule 13(a), (c); see Monge v.

Commissioner, supra at 27; Abeles v. Commissioner, supra at 1026,

1027.   However, if the notice of deficiency is invalid or if no

deficiency notice was issued, we will dismiss the case with

respect to either or both years for lack of jurisdiction on that

ground.   See Pietanza v. Commissioner, 92 T.C. 729, 735-736

(1989), supplemented by T.C. Memo. 1990-524, affd. without

published opinion 935 F.2d 1282 (3d Cir. 1991).

     Petitioners acknowledge that the 1985 notice of deficiency

was properly mailed on April 17, 1989, and that they received it

without prejudicial delay.   Petitioners do not contend that the

1985 notice was insufficient in any respect when it was issued.

Instead, petitioners argue that respondent should be estopped

from claiming the petition is time-barred on equitable grounds.

With respect to the 1986 notice, petitioners dispute that

respondent prepared such notice in 1990 and, in any event,
                                - 5 -

contend that respondent failed to mail it to their last known

address.

     In support of their argument that respondent should be

estopped from claiming that the petition for 1985 was not filed

timely, petitioners claim that they did not file a petition

sooner because respondent advised them to have the audit reopened

instead of filing a petition with this Court.    Although the

argument is not clearly articulated by petitioners, apparently

they claim that respondent had rescinded the notice of deficiency

under section 6212(d) prior to the date they were required to

file a petition with this Court.

     Section 6212(d) provides that the Secretary may, with the

consent of the taxpayer, rescind any notice of deficiency mailed

to the taxpayer.    The taxpayer has no right to file a petition

with the Tax Court based on a rescinded notice of deficiency.

Sec. 6212(d).    Section 6212(d) requires mutual consent by the

Secretary and the taxpayer to effect a rescission of a notice of

deficiency.2    See Slattery v. Commissioner, T.C. Memo. 1995-274.

     Documents submitted by the parties show that in 1989

respondent reopened the 1985 audit at petitioners' request and

that this second phase of the audit was not completed for several

2
     The Internal Revenue Service has provided guidance to
taxpayers wishing to consent to the rescission of a notice of
deficiency. See Rev. Proc. 88-17, 1988-1 C.B. 692. This revenue
procedure advises the taxpayer to request Form 8626, Agreement to
Rescind Notice of Deficiency, which becomes effective when
executed on behalf of the Commissioner.
                                - 6 -

years.    However, in the record there is no documentation of an

agreement by the parties to rescind the 1985 notice of

deficiency.    By itself, the reopening of the 1985 audit in 1989,

well after the running of the 90-day period, did not effect a

rescission.    See Slattery v. Commissioner, supra.   The record

here does not indicate that respondent ever considered rescinding

the notice of deficiency or ever suggested to petitioners the

possibility of rescission.    The record does not support the

conclusion that petitioners somehow were misled into thinking

there had been a rescission of the deficiency notice.      In a

letter to respondent dated October 10, 1991, petitioners

themselves indicate that they were warned that continued efforts

to achieve an administrative resolution would not suspend the 90-

day period.    Petitioners wrote:   "we contacted [the Internal

Revenue Service] person listed on the [1985 notice of

deficiency,] . . . [and he] informed us, that we did not have to

go to court, for the IRS could resolve the matter, but we had 90

days to contest the deficiency in court."     (Emphasis added.)

Petitioners' own statement summarizes the circumstances of this

record:    after the mailing of the notice of deficiency

petitioners urged further administrative consideration of the

case.    Respondent's representatives agreed to conduct such

further review but expressly warned petitioners that they had

only 90 days to file a petition with the Tax Court, regardless of

any administrative review.    The circumstances are inconsistent
                                - 7 -

with any suggestion of rescission of the deficiency notice.    We

conclude that the 1985 notice of deficiency was not rescinded

pursuant to section 6212(d).

     Accordingly, we hold that we lack jurisdiction with respect

to 1985 because the petition was not filed timely.

     With respect to petitioners' 1986 tax year, in the motion to

dismiss for lack of jurisdiction filed by respondent on July 17,

1995, respondent represented:

       7. With respect to the year 1986 no statutory notice
     of deficiency were [sic] issued to petitioner by
     respondent.
       8. The petitioners seeks [sic] a release of a lien
     that was placed on their property after failing to pay
     their taxes for that year. Said liability was self
     assessed as a result of the filing of their 1986 income
     tax return without any remittance.
       9. The petitioners have not attached a copy of any
     statutory notice of deficiency for 1986 to their
     petition as required by Tax Court Rule 34(b)(8) and
     have failed to establish that the Court has acquired
     jurisdiction pursuant to I.R.C. § 6213 and Tax Court
     Rule 13.

     Relying upon respondent's representations, this Court

granted respondent's motion to dismiss with respect to 1986 and

stated:

     petitioners have failed to establish that a notice of
     deficiency has been sent for the taxable year 1986,
     required by Internal Revenue Code, section 6213(a) to
     form a basis for an appeal to this Court for that year.

     In their motion to vacate the order of dismissal,

petitioners assert that they never received a notice of

deficiency for 1986 and request the issuance of such notice so

they can petition this Court.   Respondent attached to her
                               - 8 -

objection to petitioners' motion to vacate and her supporting

memorandum copies of a purported notice of deficiency for 1986

and a purported U.S. Postal Service Form 3877, reflecting postal

service receipt.   Respondent now states that a deficiency notice

was mailed to petitioners' last known address for 1986 and that

petitioners failed to file a petition with this Court within the

time allowed by statute for such petition.   However, petitioners

contend that they never received a deficiency notice for 1986 and

that the copies of documents attached to respondent's objection

and memorandum are false.   At the hearing on the present motion

to vacate, respondent introduced no evidence concerning usual

procedures in respondent's office for the preparation and mailing

of deficiency notices or concerning the preparation and mailing

of the deficiency notice for 1986 in this case.   Respondent has

failed to explain the reason for her representation in her motion

to dismiss to the effect that no deficiency notice had been

issued to petitioners with respect to 1986 as contrasted with

respondent's present assertion, disputed by petitioners, that

such a deficiency notice was sent to petitioners.   Under such

circumstances, at the least, respondent should have provided a

witness or otherwise introduced a copy of the disputed notice of

deficiency into evidence at the hearing on the present motion.

Also, respondent should have provided evidence that she exercised

due diligence in efforts to locate a deficiency notice for 1986

before representing to this Court, in support of a motion to
                              - 9 -

dismiss, that no deficiency notice had been issued for 1986.   See

Pietanza v. Commissioner, T.C. Memo. 1990-524.   On this record,

we hold respondent to her initial representations and adhere to

our initial order dismissing this case as to 1986 on the ground

that respondent failed to issue a deficiency notice.




     Accordingly,

                         An order will be issued denying

                    petitioners' motion to vacate order of

                    dismissal.
