                         T.C. Memo. 1996-163



                       UNITED STATES TAX COURT



         JESUS V. CUTILLAR AND NORA CUTILLAR, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent.



     Docket No. 13125-95.                      Filed March 28, 1996.


     James R. Brewster, for petitioners.

     Robert Dillard, for respondent.



                         MEMORANDUM OPINION


     RUWE, Judge:     This matter is before us on respondent’s

motion to dismiss for lack of jurisdiction on the grounds that

the petition in this case was not filed within the time

prescribed by section 6213(a).1

     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year in
                                                   (continued...)
                                    - 2 -

     During the 1982 taxable year, petitioner Jesus V. Cutillar

was a partner in the partnership of Waltbar & Associates

(Waltbar).      Waltbar invested in two other partnerships, Whitman

Recycling Associates (Whitman) and Stevens Recycling Associates

(Stevens).      Waltbar was a pass-thru partner in Whitman and

Stevens.    In January and February 1995, following adjustments at

the partnership level to Whitman and Stevens for the 1982 taxable

year, respondent notified petitioners that their distributive

share of income/loss/credit from Waltbar for 1982 had been

adjusted to reflect respondent’s adjustments to Whitman and

Stevens.    These adjustments were the result of partnership level

proceedings conducted pursuant to sections 6221-6233 and resulted

in tax assessments against petitioners.

     On March 16, 1995, respondent issued a notice of deficiency

(the first notice of deficiency) to petitioners at their last

known address, 4005 Forsythe Way, Tallahassee, Florida, 32308-

2360, determining the following additions to tax with respect to

the tax adjustments related to Stevens:


                                  Additions to Tax
         Year           Sec. 6653(a)(1)    Sec. 6653(a)(2)

         1982              $15.60           50 percent of the
                                            interest due on
                                            $312


     1
      (...continued)
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                  - 3 -

Petitioners have already paid the addition to tax under section

6653(a)(1) in the amount of $15.60.2

      On April 7, 1995, respondent issued an additional notice of

deficiency for the 1982 taxable year (the second notice of

deficiency) to petitioners at the same address, determining the

following additions to tax with respect to the tax adjustments

related to Whitman:


                             Additions to Tax
      Year      Sec. 6653(a)(1)   Sec. 6653(a)(2)   Sec. 6659

      1982         $853          50 percent of       $4,620
                                 the interest due
                                 on $17,068


      This Court’s jurisdiction is strictly limited by statute,

and, unless a petition is filed within the time prescribed by

statute, we lack jurisdiction and must dismiss the case for that

reason.      Estate of Moffat v. Commissioner, 46 T.C. 499, 501

(1966).      A petition must be filed within 90 days after the notice

of deficiency is mailed to a taxpayer within the United States.

Sec. 6213(a).     If the notice is addressed to a person outside the

United States, the taxpayer receives 150 days to file a petition.

Id.

      The 90-day period for filing a petition with this Court

expired on June 14, 1995, for the first notice of deficiency and

      2
      Prepayment by the taxpayer does not deprive the Tax Court
of jurisdiction, where payment is made after the mailing of the
notice of deficiency. Sec. 6213(b)(4).
                                 - 4 -

on July 6, 1995, for the second notice of deficiency.     Neither

date was a Saturday, Sunday, or legal holiday in the District of

Columbia.   Id.    On July 17, 1995, the Court received and filed

the petition.     The envelope in which such petition was mailed

bore a legible United States postmark date of July 13, 1995, 119

days after the mailing of the first notice of deficiency and 97

days after the mailing of the second notice of deficiency.       Sec.

7502(a)(1).   Our jurisdiction, therefore, depends on whether

petitioners were entitled to file their petition within 150 days

after the notices of deficiency were mailed.     Petitioners bear

the burden of demonstrating that they come within the scope of

the provision allowing 150 days for the mailing of the petition

where the notice is addressed to a person outside of the country.

Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).

     Petitioners were in the United States from March 16, 1995,

through June 17, 1995.     On June 17, 1995, petitioners traveled to

the Philippines.     Petitioners returned to the United States on

July 3, 1995.

     This Court has determined that the 150-day period applies

not only to persons who are outside of the United States “on some

settled business and residential basis” but also to persons who

are temporarily absent from the country.     Levy v. Commissioner,

76 T.C. 228, 231 (1981); Estate of Krueger v. Commissioner, 33

T.C. 667, 668 (1960).     However, the taxpayer’s absence must

result in delayed receipt of the deficiency notice.     Lewy v.
                               - 5 -

Commissioner, 68 T.C. 779, 783 (1977).     In Malekzad v.

Commissioner, 76 T.C. 963, 969-970 (1981), we explained that in

determining whether the 150-day period is applicable, we look at

both the date of mailing of the notice of deficiency as well as

the date on which the notice was received by the taxpayer.       The

crucial inquiry is whether the taxpayer falls within the class of

persons that Congress intended to receive the benefit of the

longer period and whether the notice of deficiency served the

notice function that it was designed to serve.     Id. at 970.    The

congressional purpose behind the enactment of the 150-day rule

was the prevention of hardships caused by delays in the receipt

of a notice of deficiency due to the taxpayer’s absence from the

United States and the relatively slow international mails.

Looper v. Commissioner, 73 T.C. 690, 694 (1980).

     Application of the approach utilized in Malekzad v.

Commissioner, supra, to the facts in the instant case clearly

reveals that petitioners were not entitled to the 150-day period

for filing their petition.   Petitioners were in the United States

on the dates that the notices of deficiency were mailed as well

as on the dates that they were received.    Indeed, petitioners did

not travel to the Philippines until 93 days after the first

notice of deficiency was mailed and 71 days after the second

notice of deficiency was mailed.   Thus, petitioners’ absence from

the country in no way resulted in a delay in the receipt of

either notice.   Lewy v. Commissioner, supra.
                               - 6 -

     Petitioners were not entitled to avail themselves of the

150-day filing period.   Accordingly, respondent’s motion to

dismiss will be granted.3



                                           An appropriate order of

                                       dismissal will be entered.




     3
      Petitioners also make a generalized claim that they were
denied due process during the partnership level proceeding. The
partnership level proceeding preceded and was completed prior to
the notices of deficiency upon which the petition in the instant
case was based. Our jurisdiction to consider any of petitioners’
arguments must be based upon a timely petition. As we have held,
we lack jurisdiction because the petition in this case was not
filed within the statutory time limit.
