                        T.C. Memo. 1997-138



                      UNITED STATES TAX COURT



              NICHOLAS O. BACHYNSKY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent




     Docket No. 4597-96.                      Filed March 17, 1997.




     Nicholas O. Bachynsky, pro se.

     Melanie R. Urban, for respondent.




                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge John J. Pajak 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 year in issue,
                                - 2 -


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

and Procedure.    The Court agrees with and adopts the Special

Trial Judge's opinion, which is set forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     PAJAK, Special Trial Judge:    This case is before the Court

on respondent's motion to dismiss for lack of jurisdiction.

Petitioner filed an opposition to respondent's motion and

respondent filed a response thereto.     A hearing was held on

respondent's motion.    The issue for decision is whether

petitioner filed his petition within the time prescribed by

section 6213(a).

     Respondent determined a deficiency of $54,434 in

petitioner's Federal income tax for 1988, together with additions

to tax under sections 6651(a) and 6654 of $10,828 and $2,720.80,

respectively.

     For clarity and convenience, we have combined our findings

of fact and opinion.    Petitioner resided at the Federal Prison

Camp, Tilden, Three Rivers, Texas, at the time he filed his

petition.

     On November 3, 1995, respondent sent, by certified mail,

duplicate notices of deficiency to petitioner at the following

addresses:

     1)     FCI Three Rivers 47424-079
            P.O. Box 4000
            Three Rivers, Texas 78071
                                    - 3 -


     2)      7530 Regency Square
             Houston, Texas 77036

     Respondent concedes that the second address is not

petitioner's last known address, and we will not make any further

reference to it.

     "FCI Three Rivers" refers to the Federal Correctional

Institution located in Three Rivers, Texas.     The notice of

deficiency respondent mailed to petitioner at the Federal

Correctional Institution was not stamped with a date.       However,

U.S. Postal Service Form 3877 indicates that a notice of

deficiency for taxable year 1988, bearing petitioner's Federal

inmate registration number of 47424-079, was sent by certified

mail from the Internal Revenue Service, District Director,

Houston, Texas, to petitioner at "FCI Three Rivers, P.O. Box 400,

Three Rivers, Texas 78071" on November 3, 1995.       The certified

mail number of the notice of deficiency was 15045.       The Postal

Service Form 3877 was postmarked November 3, 1995, and was

initialed by the receiving Postal Service employee who filled in

the total number of items received.

     Petitioner filed a petition with the Court on March 14,

1996.     The petition was mailed in an envelope bearing a return

address of a Houston law firm and a private postage meter

postmark.     The postmark does not contain a date.    March 14, 1996,

is 132 days after the date the notice of deficiency was mailed.
                                 - 4 -


     This Court's jurisdiction to redetermine a deficiency

depends upon the issuance of 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).   Section 6212(a) authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.      It is sufficient for

jurisdictional purposes if the Commissioner mails the notice of

deficiency to the taxpayer's "last known address".      Sec. 6212(b);

Frieling v. Commissioner, 81 T.C. 42, 52 (1983).       Once the notice

of deficiency has been mailed, the taxpayer has 90 days (150 days

if addressed to a person outside the United States) in which to

file a petition in this Court.    Sec. 6213(a).

     Petitioner claims that he did not receive the notice of

deficiency until December 8, 1995.       Petitioner further contends

that the notice of deficiency is "void" because the notice was

not mailed to his last known address, and it was undated.

     In his opposition to respondent's motion, petitioner claims

that he has never been in the Federal Correctional Institution,

Three Rivers, Texas.   Rather, he states that he has been "at all

times" incarcerated in the Federal Prison Camp, Tilden, Three

Rivers, Texas.   Petitioner argues that his correct mailing

address is as follows:   Federal Prison Camp, Tilden, P.O. Box

4300, Three Rivers, Texas 78071.    Petitioner also argues that the
                               - 5 -


Postal Service Form 3877 shows an address of "P.O. Box 400" for

the Federal Correctional Institute, Three Rivers, rather than the

correct address of "P.O. Box 4000".

     Based upon the record, including the notice of deficiency

attached to petitioner's petition which bears an address of "P.O.

Box 4000", we are satisfied "P.O. Box 400" is a typographical

error on the Postal Service Form 3877, and that the notice of

deficiency was in fact sent to the Federal Correctional

Institution, Three Rivers, at P.O. Box 4000.   Petitioner's other

arguments in his opposition to respondent's motion are at odds

with the facts he alleged in the petition he filed with the

Court.   In his petition, petitioner states that his "legal

address" is "FCI Three Rivers, P. O. Box 4000, Three Rivers,

Texas 78701."   He further states in his petition that he is

"incarcerated in the Federal Correctional Institution at Three

Rivers, Texas".

     Considering all the facts and circumstances, we need not

resolve whether respondent mailed the notice of deficiency to

petitioner's last known address.   As explained below, we conclude

that, even assuming arguendo that the Federal Prison Camp,

Tilden, address constituted petitioner's last known address, the

notice of deficiency was delivered to petitioner at that address

without prejudicial delay.   Although a deficiency notice properly

mailed to a taxpayer's last known address provides the
                                - 6 -


Commissioner with a "safe harbor" under section 6212(b), it is

well settled that an improperly addressed notice is nonetheless

valid if the taxpayer receives actual notice of the deficiency

determination in a timely fashion, i.e., without prejudicial

delay.    McKay v. Commissioner, 89 T.C. 1063, 1069 n.7 (1987),

affd. 886 F.2d 1237 (9th Cir. 1989); Mulvania v. Commissioner, 81

T.C. 65, 69 (1983).

     The Federal Prison Camp, Tilden, is a lower-security

satellite facility of the Federal Correctional Institution in

Three Rivers, Texas.   All mail for both institutions is processed

at the Federal Correctional Institution.   A prison official from

the Federal Correctional Institution explained that accountable

mail, such as certified mail, is handled with greater care than

regular mail.   Accountable mail is logged in by date, by inmate's

name and Federal inmate registration number, and by certified

number.    A staff member from the inmate's housing unit then signs

for the mail.   Thereafter, the staff member from the inmate's

housing unit logs it in the log book in the housing unit.   The

staff member then notifies the inmate to come and pick up the

mail.    The staff member will have the inmate sign for the mail at

that time.

     A copy of the Federal Correctional Institution's log shows

that mail addressed to petitioner, bearing his inmate

registration number and a certified number of 15045, was received
                                - 7 -


by the Federal Correctional Institution on November 7, 1995.    It

also shows that a staff member from petitioner's housing unit

picked up and signed for the mail on November 8, 1995.   The

housing unit log, and related testimony by the prison official,

show that on November 8, 1995, petitioner, as identified by his

name, his inmate registration number, and his signature, picked

up mail sent by the IRS in Houston, Texas.   We find that the

housing unit log was signed by petitioner and by the staff

member.   The only mail item the staff member picked up on that

day for petitioner was the certified mail bearing the number

15045.

     On this record, we find that respondent mailed the notice of

deficiency on November 3, 1995, to petitioner at his mailing

address of FCI Three Rivers, P.O. Box 4000, Three Rivers, Texas,

78071.    We also find that the certified mail envelope containing

the notice of deficiency was delivered to the Federal

Correctional Institution on November 7, 1995, picked up by a

staff member from petitioner's housing unit on November 8, 1995,

and received by petitioner on that date.   Consequently, we hold

that petitioner actually received the notice of deficiency on

November 8, 1995.

     With respect to petitioner's argument concerning the lack of

a date on the notice of deficiency, we find that the absence of

this date has no effect on the 90-day period in the present
                                 - 8 -


circumstances.   We have held that the date of mailing for

purposes of computing the 90-day filing period prescribed under

section 6213(a) generally is the date that the Commissioner

actually places the notice of deficiency in the mail.    See

Traxler v. Commissioner, 61 T.C. 97, 99 (1973), modified 63 T.C.

534 (1975); Casqueira v. Commissioner, T.C. Memo. 1981-428.     In

the instant case, November 3, 1995, was established as the date

of mailing by the postmark on the Postal Service Form 3877.

Because petitioner had actual receipt of the notice of deficiency

on November 8, 1995, only 5 days after the notice of deficiency

was mailed, petitioner had more than adequate time to file his

petition with this Court within the period prescribed by section

6213(a).   Consequently, we will grant respondent's motion to

dismiss for lack of jurisdiction because petitioner's petition

was not filed within the time prescribed by section 6213(a).

     To reflect the foregoing,

                                 An order will be entered granting

                          respondent's motion to dismiss for lack

                          of jurisdiction.
