                        T.C. Memo. 1997-372



                      UNITED STATES TAX COURT



        TYSON BONTY AND TORIE A. STEPHENS, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent

                   TYSON BONTY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 19640-96, 19641-96.          Filed August 14, 1997.




     Tad D. Ransopher, for petitioners.

     David Delduco, for respondent.



                        MEMORANDUM OPINION

     WELLS, Judge:   These cases are before the Court on

respondent's motions to dismiss for lack of jurisdiction.
                                 - 2 -

     Respondent determined deficiencies in petitioners' Federal

income taxes and penalties as follows:

Tyson Bonty and Torie A. Stephens, docket No. 19640-96

                                           Penalty
     Year           Deficiency           Sec. 6662(a)

     1994             $8,729               $1,746

Tyson Bonty, docket No. 19641-96

                                           Penalty
     Year           Deficiency           Sec. 6662(a)

     1992             $4,214                 $843
     1993             13,031                2,606

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the taxable years at issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent filed the instant motions, and petitioners filed

objections to respondent's motions.

Background

     At the time petitioners filed their petitions in the instant

cases, petitioners resided in Doraville, Georgia.

     During or about March 1996, petitioners moved to 1408 Brook

Court Avenue in Doraville, Georgia (the Brook Court address).    On

or before April 15, 1996, petitioners filed with the Internal

Revenue Service Center in Atlanta, Georgia, their 1995 joint

Federal income tax return, which listed the Brook Court address

as their address.
                              - 3 -

     On June 7, 1996, respondent mailed notices of deficiency in

the instant cases to petitioners at 635 Wood Terrace Way in

Doraville, Georgia (the Wood Terrace address).    Petitioners

actually received the notices of deficiency on or about June 28,

1996.

     Petitioners mailed, via U.S. mail, petitions in the instant

cases on September 6, 1996, which date is 91 days after the

mailing of the notices of deficiency.    The petitions in the

instant cases were filed with this Court on September 10, 1996,

which date is 95 days after the mailing of the notices of

deficiency.

     Respondent contends that the instant motions should be

granted because, pursuant to sections 6213(a) and 7502, the

petitions in the instant cases were filed more than 90 days after

the notices of deficiency were mailed.    Petitioners contend that,

for purposes of section 6212(b)(1), petitioners' last known

address is the Brook Court address, which petitioners provided on

their 1995 joint Federal income tax return.    Additionally,

petitioners argue that respondent, in mailing the notices of

deficiency to the Wood Terrace address, failed to exercise

reasonable diligence in determining petitioners' last known

address, citing Gaw v. Commissioner, 45 F.3d 461 (D.C. Cir.

1995), revg. and remanding T.C. Memo. 1993-379, and Crawford v.

Commissioner, T.C. Memo. 1996-460.    Accordingly, petitioners
                               - 4 -

contend that the statutory 90-day filing period should not begin

until petitioners actually received the notices of deficiency.

Discussion

     Section 6212(a) provides that, when a deficiency in tax is

determined to exist, the Secretary of the Treasury is authorized

to send a notice of deficiency by certified mail to a taxpayer.

Section 6212(b)(1) provides, with an exception not relevant

herein, that the notice authorized pursuant to section 6212(a)

shall be sufficient if it is mailed to the taxpayer at the

taxpayer's "last known address".   Respondent has the burden of

proving that the notice of deficiency was properly mailed.

August v. Commissioner, 54 T.C. 1535, 1536 (1970).

     If a notice of deficiency is mailed to a taxpayer within the

United States, the taxpayer may file a petition in this Court

within 90 days after the notice of deficiency is mailed.     Sec.

6213(a).   For purposes of computing the 90-day filing period,

timely mailing is timely filing.   Sec. 7502(a).   A valid notice

of deficiency and a timely petition are essential to this Court's

jurisdiction, and any case in which one or the other is not

present must be dismissed.   Monge v. Commissioner, 93 T.C. 22, 27

(1989); Pyo v. Commissioner, 83 T.C. 626, 632 (1984).

     A notice of deficiency is valid, regardless of actual

receipt by the taxpayer, if it is mailed to the taxpayer's "last

known address".   Sec. 6212(b)(1); see Yusko v. Commissioner, 89

T.C. 806, 810 (1987); King v. Commissioner, 88 T.C. 1042, 1047
                               - 5 -

(1987), affd. 857 F.2d 676 (9th Cir. 1988); Frieling v.

Commissioner, 81 T.C. 42, 52 (1983).   If the notice of deficiency

is not mailed to the "last known address" pursuant to section

6212(b)(1), however, the notice nevertheless meets the

requirements of section 6212(a) and is valid from the date of its

mailing if the taxpayer actually receives the notice in

sufficient time to file a timely petition without prejudicial

delay.   Pugsley v. Commissioner, 749 F.2d 691, 693 (11th Cir.

1985); Clodfelter v. Commissioner, 527 F.2d 754, 757 (9th Cir.

1975), affg. 57 T.C. 102 (1971); Mulvania v. Commissioner, 81

T.C. 65, 68 (1983); Frieling v. Commissioner, supra at 57.

Providing the taxpayer with actual notice of the deficiency in a

timely manner is the essence of the statutory scheme.     Mulvania

v. Commissioner, supra at 68, and cases cited thereat.

Accordingly, a taxpayer's actual receipt of a notice of

deficiency, without prejudicial delay, obviates the need to

decide whether the notice was mailed to the last known address.

     Petitioners contend that, for purposes of section

6212(b)(1), petitioners' last known address is the Brook Court

address, which petitioners provided on their 1995 joint Federal

income tax return.   Additionally, petitioners argue that

respondent, in mailing the notices of deficiency to the Wood

Terrace address, failed to exercise reasonable diligence in

determining petitioners' last known address, citing Gaw v.

Commissioner, supra, and Crawford v. Commissioner, supra.
                                 - 6 -

Accordingly, petitioners contend that the statutory 90-day filing

period should not begin until petitioners actually received the

notices of deficiency.

     Petitioners' reliance on Gaw v. Commissioner, supra, and

Crawford v. Commissioner, supra, is misplaced.   In each of those

cases, the taxpayer did not receive the notice of deficiency

prior to the end of the 90-day period allowed for filing a

petition in this Court.   Gaw v. Commissioner, supra at 464

(notice of deficiency not received by the taxpayer because it was

returned by the taxpayer's apartment manager to the

Commissioner); Crawford v. Commissioner, supra (notice of

deficiency returned to the Commissioner marked "UNABLE TO

FORWARD").   In the instant cases, however, petitioners concede

that they actually received the notices of deficiency prior to

the end of such 90-day period.    As we stated supra, a taxpayer's

actual receipt of a notice of deficiency, without prejudicial

delay, obviates the need to consider a taxpayer's "last known

address" pursuant to section 6212(b)(1).   Accordingly, the issue

to be decided is whether petitioners' receipt of the notices of

deficiency 21 days after they were mailed by respondent

constitutes "prejudicial delay".

     Based upon our review of the records in the instant cases,

we conclude that the notices of deficiency were received by

petitioners without prejudicial delay.   Petitioners concede that

they received the notices of deficiency on or about June 28,
                                - 7 -

1996, which is 21 days after they were mailed.    Accordingly,

petitioners had 69 days remaining in the 90-day filing period to

file petitions.    We have held that receipt of a notice of

deficiency that was addressed incorrectly with 69 or fewer days

remaining in the filing period was not prejudicial.    Bowers v.

Commissioner, T.C. Memo. 1991-609 (69 days remaining); Fileff v.

Commissioner, T.C. Memo. 1990-452 (60 days remaining); George v.

Commissioner, T.C. Memo. 1990-147 (52 days remaining); Loftin v.

Commissioner, T.C. Memo. 1986-322 (30 days remaining).    But see

Sicker v. Commissioner, 815 F.2d 1400, 1401 (11th Cir. 1987) (the

Court of Appeals held that receipt of a notice of deficiency with

8 days remaining in the filing period was not ample time in which

to prepare a petition); Looper v. Commissioner, 73 T.C. 690, 699

(1980) (receipt of notice with 17 days remaining was

prejudicial).

     Petitioners do not offer any explanation for their failure

to file petitions timely, and it may be inferred that their own

inaction, after the receipt of the notices, was responsible for

the late filing.    Petitioners' failure to file timely petitions

does not appear to be the result of any error in the address to

which the notices of deficiency were mailed.    Consequently, on

the basis of the facts and circumstances of the instant cases, we

hold that petitioners received the notices of deficiency without

prejudicial delay and in ample time to file petitions.
                                 - 8 -

     Accordingly, we hold that the notices are valid from the

date of their mailing and that the 90-day filing period in the

instant cases therefore began on June 7, 1996, the date of the

mailing of the notices of deficiency.       As the petitions in the

instant cases were not timely filed, we grant respondent's

motions to dismiss.

     To reflect the foregoing,

                                         Appropriate orders will

                                 be entered.
