                          T.C. Memo. 1999-85



                       UNITED STATES TAX COURT



                     ROSIE BURNSIDE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8305-98.                       Filed March 23, 1999.



     Rosie Burnside, pro se.

     Peter C. Rock and Paul R. Zamolo, for respondent.


                          MEMORANDUM OPINION

     VASQUEZ, Judge:    This matter is before the Court on

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

issue presented is whether petitioner had 90 or 150 days within

which to file her petition to this Court under section 6213(a).1

Background

     1
        All section references are to the Internal Revenue Code
in effect for the years in issue.
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     On January 28, 1998, petitioner left the United States for

Nassau, Bahamas.   On January 30, 1998, respondent mailed the

statutory notice of deficiency (notice) to petitioner's home

address in California.

     After learning of the notice, on April 28, 1998, petitioner

returned to the United States.    According to the United States

postmark, petitioner mailed her petition to this Court on May 1,

1998--the 91st day after the notice was mailed.    On May 5, 1998,

95 days after the notice was mailed, the Court received the

petition and stamped it filed.    At the time she filed the

petition, petitioner resided in East Palo Alto, California.

Discussion

     This Court's jurisdiction is strictly limited by statute,

and unless a petition is filed within the time prescribed by

statute, we lack jurisdiction and must dismiss the case.      See

Estate of Moffat v. Commissioner, 46 T.C. 499, 501 (1966).

     Ordinarily, a taxpayer has 90 days from the date the notice

is mailed within which to file a petition with this Court.      See

sec. 6213(a).   However, where a notice is "addressed to a person

outside the United States," the taxpayer has 150 days from the

date the notice is mailed in which to file a petition (the 150-

day rule).   Id.

     In this case, the 90-day period for filing a petition

expired on April 30, 1998.   Petitioner did not mail her petition
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until May 1, 1998--1 day later.    If petitioner is entitled to 150

days within which to file her petition, then petitioner timely

filed her petition.   See sec. 7502(a)(1).

     For the 150-day rule to apply, a taxpayer must experience a

delay in his receipt of the notice because of his absence from

the country.   See Mindell v. Commissioner, 200 F.2d 38, 39 (2d

Cir. 1952); Malekzad v. Commissioner, 76 T.C. 963, 970 (1981);

Estate of Krueger v. Commissioner, 33 T.C. 667, 668 (1960).

     The taxpayer's absence from the country may be on a

temporary basis.   See Estate of Krueger v. Commissioner, supra.

Generally delay experienced by the taxpayer must hamper the

taxpayer's ability to respond adequately to the notice by filing

a petition in this Court.   See Degill Corp. v. Commissioner, 62

T.C. 292, 299 (1974).

     Respondent argues that petitioner has not established that

she was out of the country on January 30, 1998 (date on which

notice was mailed); thus, respondent contends that petitioner is

not entitled to 150 days in which to file her petition.

     Petitioner testified that she was on vacation in the Bahamas

from January 28 until April 28, 1998.    She testified that she did

not receive the notice until she returned from her vacation.

     Mr. Nicholas Agbabiaka testified that he dropped petitioner

off at the airport on January 28, 1998, and picked her up from

the airport on April 28, 1998.    Mr. Agbabiaka also testified that
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during this period petitioner called him several times and sent

him a postcard from the Bahamas.

     As the finder of fact, we find both petitioner and Mr.

Agbabiaka credible.   We conclude that petitioner was outside the

United States on January 30, 1998--the day the notice was mailed.

Additionally, we conclude that, due to her absence, petitioner's

receipt of the notice was delayed, and this delay hampered

petitioner's ability to respond adequately to the notice.       We

therefore conclude that petitioner was entitled to 150 days to

file her petition.    Accordingly, respondent's motion to dismiss

shall be denied.

     In reaching our holding herein, we have considered all

arguments made by the parties, and to the extent not mentioned

above, we find them to be irrelevant, moot, or without merit.

     To reflect the foregoing,

                                              An appropriate order will

                                         be issued.
