                           T.C. Memo. 2006-5



                      UNITED STATES TAX COURT



                   DANNY C. LY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5183-05.                 Filed January 12, 2006.


     Danny C. Ly, pro se.

     Steven M. Roth, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   This case is before the Court on respondent’s

motion to dismiss for lack of jurisdiction on the ground that

petitioner failed to file his petition within the time prescribed

in section 6213(a) or 7502.1    On March 17, 2005, petitioner filed



     1
       Section references are to the applicable versions of the
Internal Revenue Code.
                                - 2 -

with this Court a petition to redetermine respondent’s

determination that petitioner had a $1,560 Federal income tax

deficiency for 2003.2   The petition was mailed to this Court by

certified mail in an envelope that bears a U.S. postmark of Mar.

10, 2005.   Respondent’s determination is reflected in a notice of

deficiency that was mailed to petitioner on November 22, 2004.

Respondent mailed this notice to petitioner’s last known address

of 215 W. Las Flores Ave., Arcadia, California 91007.

     Petitioner bears the burden of proving that this Court has

jurisdiction to decide this case.       Cassell v. Commissioner, 72

T.C. 313, 317-318 (1979).    It is well established that our

jurisdiction requires a valid notice of deficiency and a timely

filed petition, and we must dismiss a case in which either one or

the other is not present.    Sec. 6213(a); Cross v. Commissioner,

98 T.C. 613, 615 (1992).    Section 6213(a) provides that where a

notice of deficiency is addressed to an individual within the

United States, the taxpayer may file with this Court a petition

to redetermine the deficiency within 90 days of the mailing of

that notice of deficiency.    Section 7502(a) provides that in

general, timely mailing is treated as timely filing if a petition

is delivered to the Court by U.S. mail after the time period




     2
        When this petition was filed, petitioner lived in
Arcadia, California. Petitioner’s petition stated that “TAXPAYER
HAS ADDITIONAL DEDUCTIONS TO CLAIM.”
                               - 3 -

prescribed for its filing and the U.S. postmark date stamped on

the envelope is within the appropriate time period.

     Under sections 6213(a) and 7503, the 90-day period within

which petitioner could challenge respondent’s determination in

this Court expired on February 22, 2005.     Because petitioner

failed to file his petition within the statutory 90-day period,

we must grant respondent’s motion to dismiss for lack of

jurisdiction.   Our decision, however, does not deprive petitioner

of his right to contest respondent’s determination by paying the

tax, filing a claim for refund, and then, if the claim is denied,

bringing a suit for refund in a United States District Court or

the Court of Federal Claims.   Our decision instead forecloses

petitioner from contesting respondent’s determination in this

Court.   See Budlong v. Commissioner, 58 T.C. 850, 854 n.2 (1972).

     Accordingly,


                                       An order of dismissal will be

                               entered.
