                       T.C. Memo. 2001-156



                     UNITED STATES TAX COURT



                MICHAEL RISING SUN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1524-00.               Filed June 28, 2001.



     Michael Rising Sun, pro se.

     Christa Gruber and Ann M. Welhaf, for respondent.



                       MEMORANDUM OPINION

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

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

ground that the petition was not filed within the time prescribed

by section 6213(a) and section 7502.   Unless otherwise indicated,

section references are to the Internal Revenue Code in effect for

the years in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.
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       Respondent determined deficiencies and additions to tax in

petitioner's Federal income taxes as follows:

                                   Additions to Tax
Year        Deficiency     Sec. 6651(a)(1)      Sec. 6654
1988         $1,523            $381               $96
1989           1,790            448                121
1990           3,837            959                252
1991           3,869            967                222
1992           2,614            654                114
1993           2,363            591                 96

       At the time the petition was filed with this Court,

petitioner resided in Ottumwa, Iowa.    Petitioner filed an

objection to respondent's motion to dismiss.    Respondent filed a

response to petitioner's objection.

       Petitioner did not file tax returns for the taxable years

1988 through 1993.    The last year for which he filed a return

prior to 1988 was 1986.

       On April 4, 1996, respondent mailed petitioner a notice of

deficiency for the years 1988 through 1993.    The notice was sent

by certified mail to petitioner at 713 7th St., SW, Albuquerque,

NM 87102-3813 (Albuquerque address).    Respondent also sent a

duplicate notice of deficiency on the same day by certified mail

to petitioner at 73 Forest St., Attleboro, MA 02703 (Attleboro

address).    The notice of deficiency sent to the Albuquerque

address was returned by the U.S. Postal Service with a notation

of "Unclaimed".    The notice of deficiency sent to the Attleboro

address was returned by the U.S. Postal Service with a notation

of "NOT DELIVERABLE AS ADDRESSED – UNABLE TO FORWARD".
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     On September 24, 1999, petitioner contacted the Internal

Revenue Service and inquired about his tax account.   On October

28, 1999, respondent responded to petitioner and sent a copy of

the notice of deficiency, which petitioner received on November

5, 1999.   The petition was mailed on January 11, 2000, and filed

on February 8, 2000.

     Respondent moved to have this case dismissed for lack of

jurisdiction upon the ground that the petition was not filed

within the time prescribed by section 6213(a) and section 7502.

Petitioner contends that he filed the petition on January 11,

2000, within the 90-day period from October 28, 1999, the date

that the copy of the notice was mailed to him after he contacted

the Internal Revenue Service.

     The 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).    Pursuant to section 6213(a), the taxpayer has 90

days (or 150 days if the notice is addressed to a person outside

of the United States) from the date that the notice of deficiency

is mailed to file a petition with the Court for a redetermination

of the deficiency.   If the petition is not filed within 90 days,

then it is untimely, and we have no jurisdiction to redetermine

the deficiency.   Sec. 6213(a).

     Section 6212(a) expressly authorizes the Commissioner, after
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determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.     A notice of deficiency

is sufficient if it is mailed to the taxpayer at the taxpayer's

"last known address".      Sec. 6212(b)(1); Frieling v. Commissioner,

81 T.C. 42, 52 (1983).     If a notice of deficiency is mailed to a

taxpayer's last known address, actual receipt of the notice is

immaterial.   King v. Commissioner, 857 F.2d 676, 679 (9th Cir.

1988), affg. 88 T.C. 1042 (1987).

     Although the phrase "last known address" is not defined in

the Code or the regulations thereunder, we have held that a

taxpayer's last known address is the address shown on the

taxpayer's most recently filed return, absent clear and concise

notice of a different address.      Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988).   A taxpayer is obliged to provide the

Commissioner with clear and concise notice of a change of

address, but the Commissioner must exercise reasonable care and

diligence in ascertaining the taxpayer's correct address.

Frieling v. Commissioner, supra at 49.      In deciding whether the

Commissioner mailed a notice to a taxpayer at the taxpayer's last

known address, the relevant inquiry "pertains to respondent's

knowledge rather than to what may in fact be the taxpayer's most

current address."    Id.    Once the Commissioner has mailed the

notice of deficiency to the taxpayer's last known address, the

Commissioner’s reasonable diligence obligation has been
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satisfied.   King v. Commissioner, supra at 679.    The taxpayer

bears the burden of proving that the notice was not sent to the

taxpayer's last known address.     Yusko v. Commissioner, 89 T.C.

806, 808 (1987).

     On January 6, 1994, respondent's records showed petitioner's

last known address as the Albuquerque address based upon

petitioner's latest and most recently filed Federal tax return

which was for the 1986 taxable year.     Respondent's records also

showed the Attleboro address based upon third party payer

information reported by American Auto Transporters, Inc.

regarding Forms 1099-Misc issued to petitioner for the years 1992

and 1993.

     On July 26, 1994, respondent sent Address Information

Request Forms 4759 to the U.S. Post Offices of Albuquerque and

Attleboro to verify whether mail was deliverable to the

respective addresses.   The Albuquerque post office returned the

form stating "Mail Is Delivered To Address Given".     The Attleboro

post office returned the form stating "Not Known At Address

Given".

     On February 29, 1996, prior to mailing the notice of

deficiency, respondent verified that petitioner's last known

address (Albuquerque address) had not changed.     The Internal

Revenue Service computer records which were printed on February

29, 1996, show that the Albuquerque and Attleboro addresses were
                               - 6 -

still the two addresses listed for petitioner.     Respondent then

sent the notice of deficiency to both addresses.

     On these facts it is clear that respondent exercised

reasonable care and diligence in ascertaining petitioner's

correct address.   Armstrong v. Commissioner, 15 F.3d 970, 975-976

(10th Cir. 1994), affg. T.C. Memo. 1992-328.     Prior to April 4,

1996, petitioner had not filed a return since 1986, nor had he

filed a change of address with respondent.     Prior to that date,

petitioner never gave clear and concise notification that he had

moved to a new, permanent address.     Absent the proper notice,

respondent correctly relied upon the address used on petitioner's

most recently filed tax return, which the post office verified as

"Mail Is Delivered To Address Given".     We find that the notice of

deficiency was mailed to petitioner’s last known address when

mailed to petitioner at the Albuquerque address on April 4, 1996.

Thus, the petition, which was mailed on January 11, 2000, and

which was filed on February 8, 2000, was not filed within the 90-

day period under section 6213(a) and section 7502.

     We hold that petitioner did not file his petition for

redetermination with this Court within the time prescribed by

section 6213(a) and section 7502.    Therefore, we lack

jurisdiction to redetermine petitioner's 1988 through 1993 tax

liabilities and additions to tax.    We grant respondent's motion

to dismiss for lack of jurisdiction.
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     Petitioner is not without a judicial remedy.    Petitioner may

pay the tax and file a claim for refund with the Internal Revenue

Service.   If the claim for refund is denied, then petitioner may

pursue his case in the appropriate Federal District Court or the

U.S. Court of Federal Claims.     McCormick v. Commissioner, 55 T.C.

138, 142 (1970).

     To reflect the foregoing,

                                 An order granting respondent's

                          motion to dismiss for lack of

                          jurisdiction will be entered.
