                        T.C. Memo. 1997-155



                      UNITED STATES TAX COURT



                  NEMAT MOSTAAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11644-95.                      Filed March 26, 1997.



     Nemat Mostaan, pro se.

     Kimberly J. Peterson, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Norman H. Wolfe 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 tax years in

issue, unless otherwise indicated.   All Rule references are to

the Tax Court Rules of Practice and Procedure.    The Court agrees
                                 - 2 -

with and adopts the opinion of the Special Trial Judge, which is

set forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

     WOLFE, Special Trial Judge:     This matter is before the Court

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

Respondent contends that this case should be dismissed on the

ground that the petition was not filed within the 90-day period

prescribed in section 6213(a).    Petitioner objects to

respondent's motion and contends that respondent failed to issue

a valid notice of deficiency under section 6212.      Petitioner

argues that the notice in question was not mailed to his last

known address.   Respondent argues that the notice was properly

mailed to petitioner's last known address and that, in any event,

petitioner actually received the notice early enough so that he

could have filed a petition within the time allowed by statute.

An evidentiary hearing was held on respondent's motion.

     Petitioner resided at Larkspur, California, when his

petition was filed.   On March 24, 1995, the Office of the

District Director, Internal Revenue Service (IRS), San Jose,

California, sent to petitioner by certified mail a notice of

deficiency addressed as follows:

                          Nemat Mostaan
                          2407 Lascar Place
                          San Jose, CA 95124

     In the notice respondent determined the following

deficiencies and additions to tax:
                                 - 3 -

                                       Additions to Tax
     Year       Deficiency      Sec. 6651(a)(1)     Sec. 6654
     1986          $887              $222              $42
     1987        17,962             4,491              968
     1988         5,052             1,263              324

     Petitioner mailed a petition in this case by certified mail

on June 23, 1995 (91 days after the mailing of the notice of

deficiency) and it was received by this Court on June 27, 1995

(95 days after the mailing of the notice).

     The jurisdiction of this Court is governed by statute.      Sec.

7442.   In order to maintain an action in this Court there must be

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).     Under section 6212,

a notice of deficiency is sufficient if it is mailed to the

taxpayer's last known address by certified or registered mail.

Sec. 6212(a) and (b).   A notice of deficiency will be deemed

valid, whether or not received by the taxpayer, if it was mailed

to the taxpayer's last known address.     Tadros v. Commissioner,

763 F.2d 89, 91 (2d Cir. 1985); Frieling v. Commissioner, 81 T.C.

42, 48, 52 (1983).   In general, a petition must be filed with the

Tax Court within 90 days from the date a statutory notice of

deficiency is mailed to a taxpayer residing in the United States.

Sec. 6213(a).   If a petition is not filed within the 90-day

period, this Court does not acquire jurisdiction of the case.

Cataldo v. Commissioner, 60 T.C. 522 (1973), affd. per curiam 499

F.2d 550 (2d Cir. 1974).     Moreover, an improperly addressed
                                 - 4 -

notice is nonetheless valid if the taxpayer receives actual

notice of the Commissioner's deficiency determination in a timely

fashion; i.e., without prejudicial delay.    See Clodfelter v.

Commissioner, 527 F.2d 754 (9th Cir. 1975), affg. 57 T.C. 102

(1971); Mulvania v. Commissioner, 81 T.C. 65, 68-69 (1983), affd.

769 F.2d 1376 (9th Cir. 1985).

1.   Last Known Address

      As noted above, under section 6212 a notice of deficiency is

sufficient if it is mailed to the taxpayer's last known address

by certified or registered mail.

      Neither section 6212 nor the regulations thereunder define a

taxpayer's "last known address".    Generally, a taxpayer's last

known address is the address to which, in light of all

surrounding facts and circumstances, the Commissioner reasonably

believed the taxpayer wished the notice of deficiency to be sent.

Monge v. Commissioner, supra at 27-28.    A taxpayer's last known

address is determined at the time the Commissioner mails the

notice of deficiency, and a notice mailed to the last known

address is valid even if the Commissioner later receives

information showing that the taxpayer resides at a different

address.   See sec. 6212(b)(1); Monge v. Commissioner, supra at

33; Abeles v. Commissioner, supra at 1035.

      In Abeles v. Commissioner, supra at 1035, we held that the

Commissioner is entitled to treat the address shown on a

taxpayer's most recent return as the taxpayer's last known
                               - 5 -

address, absent clear and concise notification of an address

change.   When a taxpayer changes his address, the taxpayer must

notify the Commissioner of the change or else accept the

consequences.   Alta Sierra Vista, Inc. v. Commissioner, 62 T.C.

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

(9th Cir. 1976).   To supplant the address on the most recent

return, the taxpayer must clearly indicate that the former

address is no longer to be used.     Tadros v. Commissioner, supra

at 92; White v. Commissioner, T.C. Memo. 1990-528.

     In the present case the record shows that the notice of

deficiency was mailed to the address on petitioner's most recent

return, and petitioner has failed to show that he notified

respondent of a change of address.

     The deficiency notice was mailed to petitioner at 2407

Lascar Place, San Jose, CA 95124 (2407 Lascar), the address

listed as petitioner's home address on the 1992 tax return that

he filed on August 17, 1993, and also on the amended return for

1992 that he filed on December 15, 1993.    At the time of the

hearing on respondent's motion to dismiss, petitioner had not yet

filed a return for 1993.   Petitioner's return for 1994 was not

yet due when the deficiency notice was mailed, and petitioner

concedes that as of the end of 1995 he had not filed a return for

any year after 1992.

     Petitioner argues that he moved from 2407 Lascar to 13

Skylark Drive, Apt. 5, Larkspur, CA 94939 (13 Skylark Drive) in
                               - 6 -

April 1994 and that he notified respondent of this change of

address.

     Petitioner claims that he was aware of audit activity with

respect to his taxes for the years in issue and later received a

so-called 30-day letter concerning the possibility of an Appeals

Office conference.   He claims that he called respondent's offices

at least six times between May 18 and June 20, 1995, that he

spoke with IRS personnel by telephone several times during that

period, and that during those telephone conversations he notified

respondent's representatives of his change of address.

Petitioner presented a chart describing the time and subject

matter of the alleged telephone conversations.   Petitioner

prepared the chart himself.   He attached to it a

telecommunications expense report, allegedly from the records of

his employer, to demonstrate that several of the calls had been

made.   Respondent disputed the authenticity of the report and the

accuracy of the chart.   Petitioner failed to present any

substantiating witnesses or other evidence.   Petitioner failed to

establish notice of change of address as a result of the alleged

telephone conversations.

     Petitioner offered in evidence a series of letters dated

between April 12, 1994, and February 9, 1995, addressed to IRS

personnel and bearing the return address of 13 Skylark Drive.    In

several of these documents, petitioner purports to advise

respondent of his change of address.   Respondent asserts that she
                                 - 7 -

has no knowledge of the alleged letters of notification and did

not receive them.     As in the case of the claimed telephone

notification calls, petitioner failed to present any

substantiation of the evidence beyond his own testimony.     Under

the circumstances of this case, and in view of petitioner's

repeated presentation of unsubstantiated evidence, we are not

convinced of the authenticity of the supposed letters of

notification.   We are not required to accept petitioner's self-

serving testimony.     Tokarski v. Commissioner, 87 T.C. 74, 77

(1986).

      Accordingly, we hold that in this case the notice of

deficiency for the years in issue was mailed to petitioner's last

known address by certified mail and that petitioner failed to

provide respondent clear and concise notification of an address

change prior to the date of mailing of the deficiency notice.

2.   Actual Receipt

      Even if the deficiency notice here had been improperly

addressed, nevertheless the notice would be valid since the

record shows that petitioner received actual notice of

respondent's deficiency determination in time for him to file a

petition within the 90-day period after mailing of the notice.

See Mulvania v. Commissioner, supra at 68-69.

      The postman who delivered mail at 2407 Lascar Place

testified that he had spoken with petitioner on numerous

occasions, that he regularly delivered mail addressed to
                                - 8 -

petitioner at that address during 1995, and that he was aware

that petitioner's parents lived at that address.    The postman

identified a receipt for certified mail addressed to petitioner

at 2407 Lascar Place dated March 25, 1995, and signed for by an

unidentified member of the household.    The receipt (Postal

Service Form 3849) bore the same identifying number as the Postal

Service Form 3877 indicating the IRS mailing of the deficiency

notice on March 24, 1995, at San Jose, California.    The receipt

of the certified mail package containing the deficiency notice at

the address where petitioner was receiving mail is persuasive

evidence establishing actual receipt by petitioner.    See Shamam

v. Commissioner, T.C. Memo. 1992-77.    Petitioner's suggestion

that a child living in the house may have obtained the mail and

misplaced it is unconvincing.

3.   Failure To File Petition Within Statutory Time Limits

      For this Court to have jurisdiction, a petition must be

filed within 90 days from the date a statutory notice of

deficiency is mailed to a taxpayer residing in the United States.

Sec. 6213(a).   The petition here was mailed on the 91st day and

received on the 95th day.    The 91st day was not a Saturday, a

Sunday, or a legal holiday.    On the face of the matter, we lack

jurisdiction in this case.

      Petitioner has attached to his petition a copy of a

purported letter dated May 23, 1995, requesting petition forms

and also stating:   "I wish to contest the IRS determination of
                               - 9 -

the tax deficiencies as stated in their notice of deficiencies,

dated March 24, 1995."   If this letter were authentic, it would

be well within the 90-day period.   However, the Office of the

Clerk of this Court cannot locate any such letter.   Petitioner

makes no claim that it was sent by certified mail.   We conclude

that petitioner has failed to establish the authenticity of this

document and has failed to show that he filed a timely petition

with this Court.

     Accordingly,


                                    An order will be entered

                              granting respondent's motion to

                              dismiss for lack of jurisdiction.
