                        T.C. Memo. 2007-243



                      UNITED STATES TAX COURT



              GREGORY ALAN LINDSTROM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23478-06.                Filed August 23, 2007.



     Gregory Alan Lindstrom, pro se.

     Molly H. Donohue, for respondent.



                        MEMORANDUM OPINION


     GALE, Judge:   This matter is before the Court on

respondent's motion to dismiss for lack of jurisdiction.

Respondent's motion contends that the Court lacks jurisdiction

because the petition was not timely filed.    Petitioner argues

that the notice of deficiency was invalid because it was not

mailed to his "last known address"; that respondent's failure to
                                - 2 -

use the last known address is not cured by petitioner's actual

receipt, because petitioner had insufficient time after receipt

to file a petition; and, in the alternative, that the petition

was timely.    The Court conducted a hearing at which the parties

proffered evidence in support of their respective positions.

                             Background

     At the time the petition was filed, petitioner, Gregory Alan

Lindstrom, resided in Massachusetts.

     In January 2006, petitioner moved from 954 State Route 20,

New Lebanon, New York 12125 (New Lebanon address) to 38 Ensign

Street, Dalton, Massachusetts 01226 (Dalton address).    Petitioner

filed a Change of Address form with the U.S. Postal Service

(USPS) indicating his move to the Dalton address on January 27,

2006.    Petitioner subsequently moved from the Dalton address to

241 2nd Street, Pittsfield, Massachusetts 01201 (Pittsfield

address) prior to his receipt of the notice of deficiency and

again notified the USPS of his change of address.

     Respondent mailed a notice of deficiency with respect to

petitioner's 2002 taxable year to the New Lebanon address.

Respondent's receipt for certified mail1 records that the notice

of deficiency was deposited with the USPS on August 14, 2006,

which is also the date on the face of the notice.    No postmark

appears on the envelope in which the notice of deficiency was


     1
         USPS Form 3877, Firm Mailing Book for Accountable Mail.
                                 - 3 -

sent.    On August 18, 2006, the USPS affixed a label bearing that

day's date and the Pittsfield address to the envelope containing

the notice, and forwarded the notice to the Pittsfield address.

Petitioner admits that he received the notice of deficiency on

August 30, 2006, 75 days before the statutory deadline for filing

a petition in this Court with respect to the notice of deficiency

(November 13, 20062).

     Petitioner prepared and signed a petition using this Court's

one-page petition form (T.C. Form 2).    Paragraph 4 of the form

petition, which permits the taxpayer to "Set forth the relief

requested and the reasons why you are entitled to such relief",

had an entry of six sentences.

     The petition was undated.    Petitioner used a private

delivery service, FedEx, to deliver his petition to the Court.

The FedEx envelope which contained the petition bears an

electronically generated label with a "Ship Date" denoted as

November 14, 2006, and the notation "Standard Overnight".     The

petition was received and filed by the Court on November 15,

2006.




     2
       The 90th day after the Aug. 14, 2006 mailing of the notice
of deficiency was Nov. 12, 2006, which was a Sunday. The notice
of deficiency also stated that the last day on which to file a
petition with this Court was Nov. 13, 2006.
                                - 4 -

                              Discussion

     In a deficiency case, our jurisdiction depends upon the

Commissioner's issuing a valid notice of deficiency to the

taxpayer and the taxpayer's timely filing a petition in this

Court.    Frieling v. Commissioner, 81 T.C. 42, 46 (1983); Bjelk v.

Commissioner, T.C. Memo. 1998-169.      Generally, a petition is

timely if it is filed within 90 days following the date that the

notice of deficiency was mailed.   Sec. 6213(a).3    When a petition

is not filed within the applicable period with respect to a valid

notice of deficiency, the case must be dismissed for lack of

jurisdiction.   Masino v. Commissioner, T.C. Memo. 1998-118

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

1985)).

     Petitioner argues that the 90-day period provided by section

6213(a) began August 18, 2006, when the USPS forwarded the notice

of deficiency to its final destination.      We disagree.   Section

6213(a) plainly provides that, except where a notice of

deficiency is addressed to a person outside the United States, a

Tax Court petition may be filed within 90 days of the date that

the notice "is mailed".   In the absence of a postmark on the

envelope itself, the date stamped on the Commissioner's certified

mail receipt is the "next best evidence" of the date of mailing


     3
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986 as in effect for the year in
issue.
                                - 5 -

(and commencement of the 90-day period).    Traxler v.

Commissioner, 61 T.C. 97, 100 (1973), modified 63 T.C. 534

(1975).   Here, the envelope contains no postmark, and the date on

the certified mail receipt is August 14, 2006.    We accordingly

conclude that the notice was mailed on August 14, 2006, for the

purpose of applying section 6213(a).

     The 90th day following the date of mailing was Sunday,

November 12, 2006.   Section 6213(a) provides that a Sunday is not

counted as the last day of the period.    Consequently, the last

day for filing a timely petition in this case was Monday,

November 13, 2006.   (The November 13, 2006 deadline was also

stated on the face of the notice of deficiency, pursuant to

section 3463(a) of the Internal Revenue Service Restructuring and

Reform Act of 1998, Pub. L. 105-206, 112 Stat. 767.)

     The petition in this case was received by the Court on

November 15, 2006.   However, a petition that is delivered to the

Court after the expiration of the period provided by section

6213(a) shall be deemed timely if it bears a timely USPS

postmark.   Sec. 7502(a).   Section 7502(f) provides that the

petition may similarly be deemed timely when the taxpayer uses a

"designated delivery service" rather than the USPS.      The

Commissioner has designated the private delivery service used by

petitioner, FedEx Standard Overnight, as such a service for the

purpose of section 7502.    Notice 2004-83, 2004-2 C.B. 1030.   In
                               - 6 -

these circumstances, the date on an electronically generated

FedEx label, created and applied by a FedEx employee, is

conclusive proof of the date of mailing equivalent to a USPS

postmark.   Austin v. Commissioner, T.C. Memo. 2007-11; Notice 97-

26, 1997-1 C.B. 413, 414.   We are persuaded that the

electronically generated label on the FedEx envelope containing

the petition was created and applied by a FedEx employee; the

"Ship Date" of November 14, 2006, that appears on the label is

therefore treated as the date of mailing for purposes of section

7502.   Consequently, the petition is not deemed timely under that

section.

     We next consider whether the notice of deficiency was valid.

When the Secretary determines that there is a deficiency, "he is

authorized to send notice of such deficiency to the taxpayer by

certified mail or registered mail."    Sec. 6212(a).    Such notice

of deficiency "shall be sufficient" if mailed to the taxpayer's

last known address as specified in section 6212(b)(1).      Section

6212(b)(1) does not create a mandatory address to which a notice

of deficiency must be mailed; rather, it is a "safe harbor"

available to the Commissioner which renders a notice of

deficiency valid irrespective of actual receipt.       Borgman v.

Commissioner, 888 F.2d 916, 917 (1st Cir. 1989), affg. T.C. Memo.

1984-503; Mulvania v. Commissioner, 81 T.C. 65, 67-68 (1983).

Section 6212(b)(1) does not invalidate other methods of
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communication that result in actual notice to the taxpayer.

Mulvania v. Commissioner, supra.

     Consequently, petitioner's contention that the notice of

deficiency was invalid because it was not sent to his last known

address is without merit.   In petitioner's circumstances, we need

not and do not decide whether the notice of deficiency was mailed

to petitioner at his last known address.   See Mulvania v.

Commissioner, supra at 66-67; Masino v. Commissioner, supra.

     It is settled law that the validity of a notice of

deficiency will be sustained when "mailing results in actual

notice to the taxpayer without prejudicial delay".   Mileti v.

Commissioner, T.C. Memo. 1990-383; see, e.g., Miller v.

Commissioner, 94 T.C. 316, 329-331 (1990); Mulvania v.

Commissioner, supra at 67-69; Frieling v. Commissioner, supra at

52-53.   Petitioner argues that receipt of the notice of

deficiency 75 days prior to the deadline for filing the petition

constituted prejudicial delay such that the notice of deficiency

should be adjudged invalid.   We do not agree.

     Whether a taxpayer has been prejudiced by a delayed notice

of deficiency is a question of fact.   Looper v. Commissioner, 73

T.C. 690, 699 (1980).   Petitioner contends that 75 days was

insufficient time for him to prepare and file the petition

because he had to locate and contact his former spouse who

possessed the necessary records.   The petition as filed, however,
                               - 8 -

consists of a single-page, standardized Tax Court form.   The

lengthiest portion of the form petition, on which petitioner set

forth the relief requested and his reasons therefor, consists of

six sentences.   Therein, petitioner disputes the notice of

deficiency's determination that he failed to file a return for

2002,4 as well as the notice's treatment of two real estate

transactions.

     Considering the record as a whole, we are not persuaded that

petitioner was prejudiced by the 16-day delay in receiving the

notice of deficiency.   Given the relative simplicity of the

petition he filed, petitioner had ample time to prepare and file

it when he received the notice of deficiency.   Consequently,

petitioner's receipt of the notice of deficiency 16 days after it

was mailed did not constitute prejudicial delay.

     We hold that the notice of deficiency herein is valid.

Accordingly, respondent's motion to dismiss for lack of

jurisdiction will be granted, and this case will be dismissed for


     4
       The petition asserts that "On April 15, 2002, a 2002
MARRIED FILING JOINTLY Taxpayer return was filed [sic]". (We
assume that petitioner meant to aver that he timely filed the
return on Apr. 15, 2003.) Respondent asserts in his response to
petitioner's objection to the motion to dismiss that "On January
12, 2007, after issuance of the Notice of Deficiency for the 2002
tax year at issue in this case, respondent's service center in
Andover received from petitioner and his spouse a Form 1040 for
the tax year ending December 31, 2002." Petitioner thereafter
apparently abandoned his claim of having filed timely; he has
subsequently failed to address respondent's allegation that a
Form 1040 for 2002 was not received until Jan. 12, 2007.
                                 - 9 -

lack of jurisdiction on the grounds that the petition was

untimely.

     To reflect the foregoing,

                                      An order of dismissal for lack

                                 of jurisdiction will be entered.
