                        T.C. Memo. 2008-166



                      UNITED STATES TAX COURT



           GARDNER N. AND MARIA MARCY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12149-04.               Filed July 7, 2008.



     Rodney W. Osborne, for petitioners.

     John Aletta, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GALE, Judge:   This matter is before the Court on

petitioners’ motion to dismiss for lack of jurisdiction.1


     1
       Although styled as a motion to dismiss for lack of
jurisdiction, petitioners’ claim is that no valid notice of
deficiency was sent to them before the expiration of the period
of limitations on assessment. Such a claim is an affirmative
defense under Rule 39, Tax Court Rules of Practice and Procedure,
                                                   (continued...)
                               - 2 -

Petitioners’ motion contends that the Court lacks jurisdiction

because the notices of deficiency with respect to petitioners’

2000 taxable year were not mailed to them before the expiration

of the period of limitations on assessment.    Respondent objects.

                         FINDINGS OF FACT

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

The stipulation of facts is incorporated herein by this

reference.   Petitioners resided in Illinois when they filed their

petition.

     Petitioners timely filed their Federal income tax return for

2000 on or before April 15, 2001.     Petitioner’s return was due by

April 16, 2001, because April 15 fell on a Sunday in that year.

On April 14, 2004, respondent mailed a duplicate notice of

deficiency with respect to petitioners’ 2000 taxable year by

certified mail with return receipt requested to each petitioner

at his or her last known address and a copy of the notice to

their attorney, Rodney W. Osborne.2    Respondent applied metered

postage of $3.36 to each of the three envelopes, sufficient to

pay the cost of certified mailing for each notice, but



     1
      (...continued)
and would not, even if meritorious, deprive us of jurisdiction.
Because, as discussed hereinafter, petitioners’ claim is
meritless, we do not pursue this distinction further.
     2
       Mr. Osborne had previously filed a valid power of attorney
with respondent authorizing Mr. Osborne to represent petitioners
with respect to their 2000 taxable year.
                                - 3 -

insufficient (by $1.75 for each) to pay for the return receipt

service requested.3

     On April 17, 2004, the notices of deficiency mailed to

petitioners were delivered to petitioners’ last known address

(i.e., their residence) and received by petitioner Maria Marcy’s

daughter, who resided there.    The notice envelopes bore the

marking “POSTAGE DUE $1.75”.    That    amount was paid upon

delivery.    On April 19, 2004, petitioners’ attorney received the

copy of the notice of deficiency mailed to him.      The envelope

containing the copy did not bear any notation concerning postage

due and was delivered without additional charge.

     On July 12, 2004, petitioners filed a timely petition with

respect to the notice of deficiency.

                               OPINION

     Petitioners argue that the notices of deficiency are invalid

because, on account of respondent’s affixing insufficient postage

when the notices were delivered to the post office, the notices

were not mailed according to the requirements of section

6212(a).4    Petitioners contend that, as a result, the mailing of

the notices on April 14, 2004, did not operate to suspend the

running of the period of limitations pursuant to section



     3
         Each envelope was stamped “RETURN RECEIPT REQUESTED.”
     4
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended.
                               - 4 -

6503(a)(1), and the period of limitations expired on April 16,

2004, before petitioners or their attorney received the notices.

     Section 6501(a) generally requires that the amount of any

tax imposed by the Internal Revenue Code be assessed within 3

years after the return is filed (whether timely or late).   For

purposes of the foregoing, a return filed before its due date is

treated as filed on the due date.   Sec. 6501(b)(1).   Income tax

returns of calendar year individual taxpayers are generally due

on April 15 following the close of the calendar year.   Sec.

6072(a).   The parties have stipulated that petitioners’ return

was filed on or before April 15, 2001, and because April 15 fell

on a Sunday in 2001, the due date for petitioners’ return was

April 16, 2001.   Thus, under section 6501(b)(1) petitioners’

return is treated as filed on April 16, 2001, for purposes of the

period of limitations on assessment.   Consequently, the period of

limitations on assessment for petitioners’ 2000 return would have

expired on April 16, 2004, absent tolling.

     The running of the section 6501(a) period of limitations on

assessment is suspended “after the mailing of a notice under

section 6212(a)”.   Sec. 6503(a)(1); see also St. Joseph Lease

Capital Corp. v. Commissioner, 235 F.3d 886, 888-889 (4th Cir.

2000), affg. T.C. Memo. 1996-256; Frieling v. Commissioner, 81

T.C. 42, 57 (1983).   The parties have stipulated that respondent

mailed duplicate notices of deficiency for 2000 via certified
                               - 5 -

mail, return receipt requested, on April 14, 2004, to petitioners

at their last known address and a copy to their attorney.

Petitioners nonetheless argue that a mailing for purposes of

sections 6212(a) and 6503(a)(1) was not effected when respondent

delivered the notices of deficiency to the post office without

sufficient postage to cover the cost of certified mail plus the

“return receipt requested”.   Mailing for this purpose,

petitioners argue, requires that “proper postage * * * be paid at

the time of the delivery to the Post Office.”   We disagree.

     While it is true that section 6212(a) provides, with respect

to a deficiency in income tax, that the Secretary is “authorized

to send notice of such deficiency to the taxpayer by certified or

registered mail”, courts construing that provision have generally

held that where the taxpayer has received actual notice of the

notice of deficiency’s contents in time to file a Tax Court

petition, defects in the address or the mailing category used are

inconsequential.   “[T]he important thing is that the taxpayer

have actual notice and not that he have it in any particular

way.”   Clodfelter v. Commissioner, 527 F.2d 754, 757 (9th Cir.

1975), affg. 57 T.C. 102 (1971); see also Boren v. Riddell, 241

F.2d 670, 672-673 (9th Cir. 1957) (notice of deficiency sent by

regular mail sufficient for purposes of section 6212(a)).

     Because petitioners actually received the notices of

deficiency in time to petition the Tax Court, and indeed did so,
                               - 6 -

we conclude as more fully discussed below that the notices of

deficiency were valid and operated to suspend the running of the

period of limitations.   We note first that section 6212(a) does

not prescribe that notices of deficiency be sent by certified

mail with return receipt requested; the statute merely authorizes

sending by certified mail.   See Epstein v. Commissioner, T.C.

Memo. 1989-498; Eisenberg v. Commissioner, T.C. Memo. 1983-767.

     More fundamentally, petitioners’ position is contradicted by

a consistent line of cases in this Court and the Courts of

Appeals holding that defects in the mailing of a notice of

deficiency under section 6212(a) are inconsequential where the

taxpayer receives actual notice in time to file a petition for

redetermination in the Tax Court.   See, e.g., St. Joseph Lease

Capital Corp. v. Commissioner, supra at 891-892; Balkissoon v.

Commissioner, 995 F.2d 525, 528-529 (4th Cir. 1993), affg. T.C.

Memo. 1992-322 and T.C. Memo. 1992-223; Scheidt v. Commissioner,

967 F.2d 1448, 1450-1451 (10th Cir. 1992), affg. T.C. Memo. 1985-

235; McKay v. Commissioner, 886 F.2d 1237, 1238-1239 (9th Cir.

1989), affg. 89 T.C. 1063 (1987); Clodfelter v. Commissioner,

supra; Boren v. Riddell, supra; Frieling v. Commissioner, supra.

This is true whether the notice is sent to the wrong address, yet

is received by the taxpayer, see Scheidt v. Commissioner, supra;

Clodfelter v. Commissioner, supra; Frieling v. Commissioner,

supra; sent to the wrong address and never received by the
                              - 7 -

taxpayer and the taxpayer receives actual notice in some other

fashion, see St. Joseph Lease Capital Corp. v. Commissioner,

supra; McKay v. Commissioner, supra; or there are defects in the

mailing process, such as the use of ordinary rather than

statutorily prescribed certified or registered mail, and the

mailing nonetheless results in receipt by the taxpayer, see

Balkissoon v. Commissioner, supra; Boren v. Riddell, supra.     In

all such circumstances, if the taxpayer receives actual notice

without delay prejudicial to his ability to file a petition in

the Tax Court, the defects in mailing relating to the address or

postage do not affect the validity of the notice of deficiency.

     Indeed, given that actual notice of the notice of

deficiency’s contents cures even a notice of deficiency never

received by the taxpayer, St. Joseph Lease Capital Corp. v.

Commissioner, supra; McKay v. Commissioner, supra, it would

follow that a notice of deficiency actually received by the

taxpayer notwithstanding insufficient postage, as occurred here,

is valid for purposes of sections 6212(a) and 6503(a)(1).   The

cases treating the use of ordinary mail rather than certified

mail as an immaterial defect, see Balkissoon v. Commissioner,

supra; Boren v. Riddell, supra, support this conclusion, see also

Twenty-Three Nineteen Creekside, Inc. v. Commissioner, 59 F.3d

130, 133 (9th Cir. 1995) (Commissioner’s failure to pay postage

sufficient to cover cost of requested certified mail immaterial
                               - 8 -

for purposes of mailing requirement of section 6223(a)), affg.

T.C. Memo. 1990-649.

     The notices of deficiency were mailed to petitioners on

April 14, 2004 (before expiration of the period of limitations),

with sufficient postage to cover a certified mailing, they

received them 3 days later, and they filed a timely petition in

this Court with respect to the notices.   Accordingly, their

argument that the notices did not suspend the running of the

period of limitations pursuant to section 6503(a)(1) because

their “mailing” did not conform to section 6212(a) must fail.

“‘A notice of deficiency that is actually received without delay

prejudicial to the taxpayer’s ability to petition the Tax Court

is sufficient to toll the statute of limitations as of the date

of mailing.’”   Balkissoon v. Commissioner, supra at 528 (quoting

Scheidt v. Commissioner, supra at 1450-1451); accord St. Joseph

Lease Capital Corp. v. Commissioner, 235 F.3d at 889; Clodfelter

v. Commissioner, supra at 757; Frieling v. Commissioner, 81 T.C.

at 57.   We reach the same conclusion here.5   The notices were


     5
       Our conclusion is unaffected by McPartlin v. Commissioner,
653 F.2d 1185, 1192 (7th Cir. 1981), in which the U.S. Court of
Appeals for the Seventh Circuit (the appeal venue in this case)
held that where a notice of deficiency was not mailed to the
taxpayers’ last known address and was not received by them until
after the expiration of the 90-day period in which to file a
petition with the Tax Court (under sec. 6213(a)), it is the
taxpayer’s receipt of the notice of deficiency rather than its
mailing that commences the running of the 90-day period for
petitioning the Court. Petitioners received the notices of
                                                   (continued...)
                                 - 9 -

mailed to petitioners before the period of limitations expired on

April 16, 2004.   The limitations period was therefore tolled

pursuant to section 6503(a)(1), and we have jurisdiction over

this case in view of petitioners’ timely petition.6

     To reflect the foregoing,


                                         An order denying petitioners’

                                 motion will be issued.




     5
      (...continued)
deficiency (at their last known address) with ample time to file
a petition and did so--within 90 days of both the mailing and the
receipt of the notices. Thus, McPartlin has no application. See
Frieling v. Commissioner, 81 T.C. 42, 59-60 (1983).
     6
       In view of our conclusion that the duplicate notices of
deficiency mailed to petitioners tolled the period of limitations
pursuant to sec. 6503(a)(1), we do not consider respondent’s
alternative argument that the copy of the notice mailed to
petitioners’ attorney sufficed to do so.
