                         T.C. Memo. 1998-118



                       UNITED STATES TAX COURT



                PATRICK ANTHONY MASINO, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14987-96.               Filed March 25, 1998.



     Patrick A. Masino, pro se.

     Steven M. Roth, for respondent.



                         MEMORANDUM OPINION

     GERBER, Judge:    This case is before the Court on

respondent’s Motion to Dismiss for Lack of Jurisdiction, filed

August 13, 1997.    Respondent contends that this case should be

dismissed because the petition was not filed within 90 days after

the notice of deficiency was mailed pursuant to section 6213(a).1


     1
         All section references are to the Internal Revenue Code in
                                                     (continued...)
                                 - 2 -


Petitioner contends that the notice of deficiency was not mailed

to his last known address pursuant to section 6212(b) and that

the 90-day filing period should not begin to run until he

received actual notice.

     Respondent determined deficiencies in petitioner's Federal

income taxes and additions to tax as follows:

                                        Additions to Tax
     Year      Deficiency        Sec. 6651(a)(1) Sec. 6654(a)
     1989        $24,015              $5,325         $1,421
     1990      1,620,549             404,870        106,623

Background

     At the time the petition in this case was filed, petitioner

resided in Van Nuys, California.

     The notice of deficiency was mailed on April 9, 1996.

Respondent mailed copies of the notice of deficiency to

petitioner at each of the following seven addresses:    (1) 5030

West 131st Street, Hawthorne, California 90250-5021; (2) 117 24th

Street, Manhattan Beach, California 90266; (3) 708 Concord

Street, Glendale, California 91202; (4) 720 Concord Street,

Glendale, California 91202; (5) 1500 Turks Head Building,

Providence, Rhode Island 02903; (6) 311½ Winnepeg Place, Long

Beach, California 90814-2564; and (7) c/o Patricia Masino, 311½

Winnepeg Place, Long Beach, California 90814-2564.    Petitioner

has lived at five of these addresses.




     1
      (...continued)
effect for the years at issue.
                                 - 3 -


     At the time the notice of deficiency was mailed, petitioner

was living at 14767 Delano Street #204, Van Nuys, California (Van

Nuys address).    It is unclear from the record when petitioner

moved to this address.    Petitioner actually received a copy of

the notice of deficiency in late April 1996.    A friend of

petitioner who was residing at the 720 Concord Street address

received the notice of deficiency mailed to that address and gave

it to petitioner in late April 1996.     Ninety days from the date

the notice was mailed was July 8, 1996.    The petition was dated

June 19, 1996; however, it was not mailed until July 9, 1996, 91

days after the notice was mailed to petitioner, and was filed on

July 12, 1996.

     Petitioner did not file tax returns for taxable year 1989

through 1995.    Respondent became aware of a change of address for

petitioner in mid-1992, before petitioner had moved to the Van

Nuys address.    In 1997, petitioner filed a tax return for the

1996 taxable year which updated petitioner's address in

respondent's computer files and deleted the address notification

received by respondent in 1992.

     Petitioner was arrested on Federal money-laundering charges

in 1991 and convicted in 1993.    Following his arrest, petitioner

was required to report any changes of address to the office of

pretrial services of the U.S. District Court for the Central

District of California.    Petitioner's reporting requirement was

in effect in April 1996.    Sometime before April 9, 1996, the date

that the notice of deficiency was mailed, petitioner notified the
                              - 4 -


office of pretrial services of his Van Nuys address.    Petitioner

was not incarcerated when the notice of deficiency was issued.

     Petitioner contends that for purposes of section 6212(b)(1),

his last known address is the Van Nuys address.   Respondent

argues that the Van Nuys address is not petitioner's last known

address and that a notice of deficiency was mailed to

petitioner's last known address.   Alternatively, respondent

contends that petitioner actually received the notice of

deficiency without prejudicial delay and had ample time to file a

petition within 90 days from the date the notice of deficiency

was mailed.

Discussion

     The jurisdiction of this Court to redetermine a tax

deficiency depends upon the issuance of a valid notice of

deficiency and the timely filing of a petition.   Secs. 6212 and

6213; Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988); Pyo v.

Commissioner, 83 T.C. 626, 632 (1984).   A petition is timely if

it is filed within 90 days after the notice of deficiency was

mailed to a person within the United States.   Sec. 6213(a).

Under conditions set forth in section 7502, for purposes of

computing the 90-day filing period, timely mailing of the

petition by the taxpayer is timely filing.   When a petition is

not filed within the 90-day period, the case must be dismissed

for lack of jurisdiction if the notice of deficiency is valid.

Pugsley v. Commissioner, 749 F.2d 691, 692 (11th Cir. 1985).

Petitioner did not mail the petition in this case within 90 days
                               - 5 -


from the date the notice of deficiency was mailed.    Therefore, we

must consider whether the notice of deficiency was valid.

     Section 6212(a) authorizes the Commissioner to send a notice

of deficiency to the taxpayer by certified or registered mail.

The notice is valid if it is mailed to the last known address of

the taxpayer.   Sec. 6212(b)(1).   If the address to which the

notice is mailed is not the taxpayer’s last known address, the

notice is generally invalid.   Clodfelter v. Commissioner, 57 T.C.

102, 104-105 (1971), affd. 527 F.2d 754 (9th Cir. 1975).

However, a notice of deficiency that is not mailed to the

taxpayer's last known address will be valid from the date of

mailing if the taxpayer actually receives the notice in

sufficient time to file a timely petition without prejudicial

delay.   Clodfelter v. Commissioner, 527 F.2d at 757; Mulvania v.

Commissioner, 81 T.C. 65, 68 (1983).    Providing the taxpayer with

actual notice of the deficiency determination in a timely manner

is the essence of the statutory scheme.    Mulvania v.

Commissioner, supra.

     Petitioner maintains that his last known address is the Van

Nuys address.   Petitioner contends that he reported his Van Nuys

address to the office of pretrial services of the U.S. District

Court in connection with the Federal money laundering case prior

to the date that the notice of deficiency was mailed.    Petitioner

argues that because respondent was involved in his criminal

prosecution, the address notification to the office of pretrial

services should be imputed to respondent for purposes of
                                 - 6 -


determining his last known address, citing Keeton v.

Commissioner, 74 T.C. 377 (1980).    Petitioner argues that because

the notice was not mailed to his last known address, the filing

period should not begin until he actually received the notice of

deficiency in late April 1996.    On brief, petitioner maintains

that agents for respondent were involved in the Federal criminal

case and testified against petitioner at trial.    Petitioner also

contends that the Internal Revenue Service (IRS) supplied bank

records and cash transaction reports to the Federal Bureau of

Investigation and the U.S. attorney's office to prosecute the

Federal money laundering case.    There is no evidence in the

record to either support or refute petitioner's allegations.

     Neither the Code nor the regulations define a taxpayer's

"last known address".    A taxpayer's last known address is the

address to which, in light of all surrounding facts and

circumstances, respondent reasonably believed the taxpayer wished

the notice of deficiency to be sent.     Monge v. Commissioner, 93

T.C. 22, 27-28 (1989).    It is the taxpayer’s obligation to

provide "clear and concise notification" to the IRS of any change

of address.   Alta Sierra Vista, Inc. v. Commissioner, 62 T.C.

367, 374-375 (1974), affd. without published opinion 538 F.2d 334

(9th Cir. 1976).   Absent a clear and concise notification of a

change in address, respondent is entitled to treat the address

shown on the taxpayer’s most recently filed tax return as the

last known address.     Abeles v. Commissioner, supra at 1035.    When

notified of a change of address, respondent must exercise
                               - 7 -


reasonable care and diligence in ascertaining and mailing the

notice of deficiency to the correct address.   Looper v.

Commissioner, 73 T.C. 690, 696 (1980); Alta Sierra Vista, Inc. v.

Commissioner, supra at 374.   Whether respondent has exercised

reasonable care and diligence must be determined in light of the

facts and circumstances of each case.   Alta Sierra Vista, Inc. v.

Commissioner, supra.

      In Keeton v. Commissioner, supra, we found that information

concerning the taxpayer's address in the possession of the U.S.

Department of Justice (DOJ) was imputed to respondent.     The DOJ

had obtained the taxpayer's address in criminal tax proceedings.

We reasoned that the IRS was inextricably connected with the U.S.

Government's investigation, prosecution, and conviction of the

taxpayer and, therefore, was on notice of the taxpayer's

incarceration.   The Court further reasoned that the DOJ and the

IRS are both administrative agencies of the executive branch of

the Federal Government and work in conjunction to enforce Federal

income tax laws.   Respondent argues that this case is

distinguishable from Keeton v. Commissioner, supra, because the

office of pretrial services is part of the judicial branch.    In

this regard, respondent argues that information possessed by a

judicial office should not be imputed to respondent.     Respondent

contends that information obtained by the office of pretrial

services is not available to respondent without approval from the

U.S. District Court, citing 18 U.S.C. sec. 3153 (1994).
                                - 8 -


     Petitioner concedes that he received the deficiency notice

in late April 1996, after the notice was mailed on April 9, 1996.

Actual receipt of a notice of deficiency by the taxpayer, without

prejudicial delay, eliminates the need for us to determine

whether the notice was mailed to the taxpayer's last known

address.    Mulvania v. Commissioner, supra.   Accordingly, we need

not decide whether notice of address changes to the U.S. District

Court's office of pretrial services was clear and concise

notification to respondent of petitioner's change of address.

Rather, we consider whether or not there was prejudicial delay in

petitioner's receipt of the deficiency notice in late April 1996.

     Assuming that petitioner received the notice of deficiency

on the last day of the month, April 30, 1996, he would have had

at least 69 days remaining in the 90-day filing period to file a

petition.   We have held that receipt of a notice of deficiency

that was incorrectly addressed with 69 or fewer days before the

expiration of the filing period is not prejudicial.     Bonty v.

Commissioner, T.C. Memo. 1997-372 (69 days remaining); Bowers v.

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

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

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

8 days remaining in the filing period when the notice is received

has been held to be insufficient time to file a petition.     Sicker

v. Commissioner, 815 F.2d 1400, 1401 (11th Cir. 1987); see Looper

v. Commissioner, supra at 699 (17 days remaining was

prejudicial).
                                 - 9 -


     Petitioner argues that 69 days was not sufficient time to

file a petition in this case because he was heavily involved in

the posttrial and sentencing phase of his Federal money

laundering conviction at the time the notice of deficiency was

issued.   In addition, petitioner contends that the deficiency was

determined using information from the Federal money laundering

case and it was necessary for him to review the large volume of

evidence in the money laundering case to verify the accuracy of

the statements in the petition before filing it.    In this regard,

petitioner argues that the delay in receiving the notice was

prejudicial.

     Despite petitioner's explanations, we find that petitioner's

own inaction was responsible for the late filing.   The

substantive issues in this case do not appear complex and involve

petitioner's failure to report income from illegal activities.

Petitioner completed the one-page petition over 2 weeks before he

mailed it.   The petition does not contain any factual allegations

as to the correct amount of petitioner's taxable income for the

years in issue.   On the facts of this case, we find that

petitioner received the notice of deficiency with sufficient time

to file a petition.   Petitioner's failure to file a timely

petition was not the result of any possible error in the address

to which the notice of deficiency was mailed.   Accordingly, we

find that the notice was valid and grant respondent's motion to

dismiss for lack of jurisdiction.

     To reflect the foregoing,
- 10 -


     An order of dismissal for lack

of jurisdiction will be entered.
