                          T.C. Memo. 1996-188



                        UNITED STATES TAX COURT



           MANJIT S. AND RAVINDER K. AULAKH, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent


        Docket No. 6764-95.              Filed April 18, 1996.


        Manjit S. and Ravinder K. Aulakh, pro sese.

     Richard S. Goldstein, Lynne Camillo, and Bryce A. Kranzthor,
for respondent.


                          MEMORANDUM OPINION

        ARMEN, Special Trial Judge:   This case was assigned pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1




    1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
     This matter is before the Court on respondent's Motion to

Dismiss for Lack of Jurisdiction.   Although respondent contends

that this case must be dismissed on the ground that Manjit S. and

Ravinder K. Aulakh (petitioners) failed to file their petition

with this Court within the time prescribed by section 6213(a),

petitioners argue that dismissal should be based on respondent's

failure to issue a valid notice of deficiency under section 6212.

There being no dispute that we lack jurisdiction over the

petition filed herein, we must resolve the parties' dispute

respecting the proper ground for dismissal.

Background

     On June 16, 1994, respondent mailed a joint notice of

deficiency to petitioners.    In the notice, respondent determined

a deficiency in petitioners' Federal income tax for the taxable

year 1992 in the amount of $8,236, as well as an accuracy-related

penalty under section 6662(a) in the amount of $1,647.

     The notice of deficiency was mailed to petitioners by

certified mail in duplicate form at two separate addresses:     (1)

318 Hale Street, San Francisco, California 94134 (the Hale St.

address); and (2) 251 Girard Street, Unit 101, San Francisco,

California 94134 (the Girard St. address).

     The Hale St. address is the address listed on petitioners'

income tax return for 1992.    Petitioners filed that return with

respondent on July 23, 1993.   Petitioners did not file their

income tax return for 1993 until November 7, 1994.   Thus,
                                - 3 -


petitioners' 1992 tax return was the last tax return filed by

petitioners before the notice of deficiency was issued.

     The Girard St. address is the address listed by petitioners

on a Form 4868 (Application for Automatic Extension of Time To

File U.S. Individual Income Tax Return) in respect of the taxable

year 1993.    The Form 4868 was filed with respondent on April 15,

1994.    The Girard St. address is also listed as the address of

petitioner Manjit S. Aulakh in a stipulated decision that said

petitioner executed on April 1, 1994, and that was subsequently

entered by this Court in Aulakh v. Commissioner, docket No.

15875-93S.

     The envelopes bearing the duplicate notices of deficiency

that were mailed to the Hale St. address and to the Girard St.

address were returned to respondent by the U.S. Postal Service on

June 16, 1994, marked "Unclaimed".

     On April 10, 1995, respondent mailed petitioners a Notice of

Intent to Levy in respect of their tax liability for 1992.

Petitioners attached the Notice of Intent to Levy to their

imperfect petition, which was filed with the Court on May 1,

1995.    Such petition was delivered to the Court in an envelope

bearing a U.S. Postal Service postmark date of April 21, 1995.2

Petitioners subsequently filed a proper amended petition.


     2
       At the time that the petition was filed with the Court,
petitioners resided at 2420 San Bruno Ave., San Francisco, CA.
                               - 4 -


     As indicated, respondent filed a Motion to Dismiss For Lack

of Jurisdiction in which she asserts that petitioners failed to

file their petition within the 90-day period prescribed by

section 6213(a).   Petitioners filed an objection to respondent's

motion in which they assert that the notice of deficiency was not

mailed to them at their last known address.   In this objection,

petitioners identify their last known address as 2420 San Bruno

Ave., San Francisco, California.   Respondent filed a response to

petitioners' objection in which she asserts that the notice of

deficiency was mailed to petitioners at their last known address.

     Hearings were conducted in this case in Washington, D.C.

Counsel for respondent appeared at the hearings and presented

argument in support of the pending motion.    Although petitioners

did not appear at the hearings, they did file a written statement

with the Court pursuant to Rule 50(c).

Discussion

     This 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); Normac, Inc. v. Commissioner, 90 T.C. 142,

147 (1988).   Section 6212(a) expressly authorizes the

Commissioner after determining a deficiency to send a notice of

deficiency to the taxpayer by certified or registered mail.   It

is sufficient for jurisdictional purposes if respondent mails the
                                - 5 -


notice of deficiency to the taxpayer at the taxpayer's "last

known address."   Sec. 6212(b); Frieling v. Commissioner, 81 T.C.

42, 52 (1983).    If a notice of deficiency is mailed by certified

or registered mail to a taxpayer at the taxpayer's last known

address, it is valid even if the taxpayer does not actually

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

1988), affg. 88 T.C. 1042 (1987); Yusko v. Commissioner, 89 T.C.

806, 810 (1987); Frieling v. Commissioner, supra at 52.     In turn,

the taxpayer generally has 90 days from the date that the notice

of deficiency is mailed to file a petition in this Court for a

redetermination of the deficiency.      Sec. 6213(a).

     Respondent mailed the duplicate notices of deficiency

involved herein on June 16, 1994.    The petition was postmarked

April 21, 1995, and was filed by the Court on May 1, 1995.    Given

the fact that the petition was neither mailed nor filed before

the expiration of the 90-day statutory period for filing a timely

petition, it follows that we lack jurisdiction over the petition.

Secs. 6213(a), 7502; Rule 13(a), (c); see Normac, Inc. v.

Commissioner, supra.

     The question presented is whether the dismissal of the

present case should be premised on petitioners' failure to file a

timely petition under section 6213(a) or on respondent's failure

to issue a valid notice of deficiency under section 6212.    In

this regard, petitioners contend that respondent failed to mail
                               - 6 -


the notice of deficiency to them at their last known address.      We

disagree.

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

the Internal Revenue Code or in 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 change of address.      Abeles v.

Commissioner, 91 T.C. 1019, 1035 (1988); see King v.

Commissioner, supra at 681.   The burden of proving that a notice

of deficiency was not sent to a taxpayer at the taxpayer's last

known address is on the taxpayer.      Yusko v. Commissioner, supra

at 808.

     Contrary to petitioners' view of the matter, we conclude

that the notice of deficiency was mailed to them at their last

known address.   In this regard, respondent mailed duplicate

notices of deficiency to petitioners.     One of the notices was

mailed to the address appearing on their 1992 tax return (the

Hale St. address) and the other notice was mailed to the address

appearing on the Form 4868 (in respect of the taxable year 1993)

that petitioners filed with respondent on April 15, 1994 (the

Girard St. address).   The record clearly shows that petitioners'

1992 tax return was the last tax return that petitioners filed

before the notice of deficiency was issued.     Moreover,

petitioners failed to produce any evidence showing that they
                              - 7 -


provided respondent with clear and concise notification that they

intended for respondent to correspond with them at any address

other than either the Hale St. address or the Girard St. address.

     Because the notice of deficiency was mailed to petitioners

at their last known address, we shall grant respondent's Motion

to Dismiss for Lack of Jurisdiction.3

     In order to reflect the foregoing,



                                      An order will be entered

                              granting respondent's Motion to

                              Dismiss for Lack of Jurisdiction.




     3
       Although petitioners cannot pursue their case in this
Court, they are not without a legal remedy. In short,
petitioners may pay the tax, file a claim for refund with the
Internal Revenue Service, and if the claim is denied, sue for a
refund in the Federal District Court or the U.S. Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
