                        T.C. Memo. 1998-293



                      UNITED STATES TAX COURT



   WALTER J. HOYT, IV AND CYNTHIA M. WITT-HOYT, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13648-97.                     Filed August 10, 1998.


     Raymond Jackson and Michael D. Culy, for petitioners.

     Alan E. Staines, for respondent.


             MEMORANDUM FINDINGS OF FACT AND OPINION


     RUWE, Judge:   This case is before the Court on respondent's

motion to dismiss for lack of jurisdiction.     Respondent bases his

motion on the ground that the petition was not filed within the

period prescribed by section 6213(a).1


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended and in effect
during the relevant period, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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     The issue for decision is whether a notice of deficiency was

issued and properly mailed to petitioners for the year 1992.

According to respondent, on October 2, 1996, a notice of

deficiency in which a deficiency, additions to tax, and a penalty

with respect to petitioners' 1992 Federal income tax were

determined was issued and sent to petitioners by certified mail.

Petitioners admit that a document sent by respondent by certified

mail was received in October 1996 but they claim that the

document was not a notice of deficiency.     According to

petitioners, the document was a statement of income tax changes

that they had previously received from the revenue agent

conducting the examination of their 1992 year.


                          FINDINGS OF FACT


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

Petitioners were husband and wife during 1992.     They filed a

timely joint Federal income tax return for the year 1992 on or

about October 15, 1993.   References to petitioner are to Walter

J. Hoyt IV.   Petitioners resided in Willows, California, at the

time their 1992 return was filed and continued to reside there at

least until the petition was filed in this case.     The parties

have stipulated, and we find as a fact, that for purposes of

section 6212, petitioners' last known address as of October 2,

1996, was P.O. Box 642, Willows, California 95988.
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     At some point prior to December 1995, respondent was

examining petitioners' 1992 Federal income tax return.     The

revenue agent conducting the examination mailed a copy of the

proposed statement of income tax changes to petitioners with a

letter dated December 1, 1995, that invited petitioners to

discuss the matter further.   Petitioners responded that further

discussion would be a "waste of time" and requested that a notice

of deficiency be issued to them for the year under examination.

     Sometime in 1996, the revenue agent forwarded petitioners'

1992 administrative file to Joseph Pierce, the Internal Revenue

Service (IRS) employee generally responsible for the preparation

of notices of deficiency in the district and specifically

responsible for the preparation of the notice of deficiency

relevant here.

     The process that preceded the issuance of a notice of

deficiency in Mr. Pierce's district was as follows.   Upon receipt

of a taxpayer's administrative file, Mr. Pierce would review the

revenue agent's report for mathematical errors and prepare a

draft of the notice of deficiency, which typically included a

cover letter, waiver, and supporting schedules.   Mr. Pierce

researched the taxpayer's last known address.   After he

determined the taxpayer's last known address, Mr. Pierce added it

to the draft of the notice of deficiency.   Mr. Pierce's work was

checked by other IRS employees, and an original and three copies
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of the notice of deficiency were then produced.   Mr. Pierce would

next sign the original and copies of the notice of deficiency on

behalf of the appropriate IRS official.   The original and one

copy of the notice of deficiency were mailed to the taxpayer.

Two copies of the notice of deficiency were retained in the

taxpayer's administrative file.

     After a notice of deficiency was completed, IRS employee

Dusty Rhoades was responsible for preparing the envelope in which

the document was to be mailed and inserting the document into

that envelope.    Mr. Pierce and Mr. Rhoades worked alongside one

another.   Before the envelope was sealed, a series of checks took

place in order to ensure the integrity of the process.

     Because a notice of deficiency is sent by certified mail,

each one contains a unique certified mailing number which is

placed on the first page of the document.   The mailing of each

notice of deficiency is recorded on U.S. Postal Service Form

3877.   The form contains the name and address of the taxpayer(s),

the certified mailing number, and the year(s) for which the

notice was issued.   The form is postmarked on the date of mailing

and signed by the Postal Service employee who received the items.

     Mr. Pierce personally prepared a notice of deficiency

addressed to petitioners for the year 1992.   The procedures

outlined above were followed in connection with the preparation

of that notice.   All the relevant records maintained by either
                               - 5 -


respondent or the U.S. Postal Service indicate that a notice of

deficiency for the year 1992 was sent by certified mail to

petitioners on October 2, 1996.

     During the relevant period, petitioner's father served as a

tax matters partner in a number of partnerships that he

(petitioner's father) promoted.    Petitioner was employed by his

father in connection with some of the partnerships and was a

partner in some of them as well.   As a result, petitioner had

previously seen "volumes" of notices of final partnership

administrative adjustment (FPAA) but only a "handful" of notices

of deficiency.   Petitioner considers a notice of deficiency and

an FPAA to be "basically the same".


                              OPINION


     Having determined a deficiency in petitioners' 1992 Federal

income tax, respondent was authorized to notify petitioners of

such by certified mail.   Sec. 6212(a).   A review of the records

that are typically generated when a notice of deficiency is

prepared and mailed to a taxpayer indicates that a notice of

deficiency for the year 1992 was issued and mailed to petitioners

on October 2, 1996.   The records are consistent with the

recollection of Mr. Pierce, the IRS employee who actually

prepared the notice of deficiency and supervised its mailing,
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although he did not actually observe the document being inserted

into an envelope.

     Petitioner recalls receiving a document by certified mail

from respondent in October 1996, but, according to his testimony,

after


     [going] back through all the different things I signed
     for that fall from the IRS * * * I've decided that the
     thing that was in that envelope that day was another
     copy of that examination report.


     We weigh the evidence that indicates a notice of deficiency

was issued and properly mailed to petitioners on October 2, 1996,

against petitioner's testimony that he "decided" it was some

other document.   On balance, we are not persuaded by petitioner's

vague recollection and testimony on the point.   We find that a

notice of deficiency for the year 1992 was issued and sent to

petitioners by certified mail on October 2, 1996.   Under the

circumstances, the statutory period for filing a petition with

this Court in response to that notice of deficiency expired on

December 31, 1996.   Sec. 6213(a).   The petition in this case was

filed on June 27, 1997, which is well beyond the period

prescribed for doing so.   Consequently, we have no jurisdiction

in this case, and respondent's motion to dismiss for lack of

jurisdiction on that ground will be granted.   Rule 13(a), (c);

Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.

Commissioner, 90 T.C. 142, 147 (1988).
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     It follows that petitioners' motion to restrain assessment

and collection, filed June 27, 1997, and petitioners' motion for

leave to file an amended petition, filed August 22, 1997, must be

denied, as moot.

     In order to reflect the foregoing,



                                           An appropriate order

                                      and order of dismissal for

                                      lack of jurisdiction will

                                      be entered.
