                       T.C. Memo. 2000-18



                     UNITED STATES TAX COURT



                  DEAN P. MUNOZ, Petitioner v.
         COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 9479-99.                    Filed January 18, 2000.


     Dean P. Munoz, pro se.

     Wendy K. Abkin, for respondent.



                       MEMORANDUM OPINION

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

on respondent's Motion to Dismiss for Lack of Jurisdiction, filed

July 2, 1999, and supplemented December 6, 1999.    As discussed in

detail below, we shall grant respondent's motion.
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Background

     On October 17, 1997, respondent mailed a notice of

deficiency to petitioner determining a deficiency and accuracy-

related penalty in petitioner’s Federal income tax for 1994 in

the amounts of $2,026 and $405, respectively.    On December 11,

1997, respondent mailed a notice of deficiency to petitioner

determining a deficiency and accuracy-related penalty in

petitioner’s Federal income tax for 1995 in the amounts of $1,312

and $262, respectively.   Respondent sent both notices by

certified mail to petitioner addressed to him at 3920 Ulloa

Street, San Francisco, CA 94116-2123 (the Ulloa Street address).

     On May 18, 1999, petitioner filed a petition for

redetermination with the Court contesting respondent’s deficiency

and penalty determinations for 1994 and 1995.    The petition

arrived at the Court in an envelope bearing a U.S. Postal Service

postmark date of May 13, 1999.    The petition and the envelope

identify petitioner’s address as the Ulloa Street address.

     The petition alleges that petitioner “was and still

presently serve[s] on active duty with the United States

military.”   The petition further alleges that petitioner only

received copies of the notices of deficiency on February 26,

1999, and that he filed his petition within 90 days of that date.

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction on July 2, 1999.    Respondent contends that this
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case must be dismissed for lack of jurisdiction on the ground

that the petition was not filed within the time prescribed by

section 6213(a) or section 7502.1

     Petitioner filed an objection to respondent's motion to

dismiss, repeating the allegations set forth in the petition.

Thereafter, petitioner filed a response, documenting his military

service.    Petitioner’s response establishes that petitioner

served in Korea on active duty with the United States Army from

June 1997 through May or June 1998.     Petitioner’s response also

establishes: (1) Petitioner’s “home of record” at the time of his

enlistment with the Army in September 1996 was the Ulloa Street

address; and (2) petitioner’s “leave address” for paternity

purposes in June 1997 was also the Ulloa Street address.2

     This matter was called for hearing at the Court's trial

session in San Francisco, California, on November 17, 1999.

There was no appearance by or on behalf of petitioner, nor did

petitioner file any statement pursuant to Rule 50(c).    Counsel

for respondent appeared and argued in support of the pending

motion.    Counsel represented that respondent’s records do not




     1
        All section references are to the Internal Revenue Code
of 1986, as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
     2
        Petitioner’s request for 25 days’ leave from military
service states as its reason “wife do [sic] to have a baby 6 June
97".
                               - 4 -


indicate that either notice of deficiency was returned to

respondent by the Postal Service.

     On December 6, 1999, respondent filed a supplement to

respondent's motion to dismiss.   Respondent attached to the

supplement copies of petitioner’s timely filed income tax returns

(Forms 1040) for the 2 years in issue, both of which list the

Ulloa Street address as petitioner’s home address.   Respondent

also attached to the supplement a copy of petitioner’s timely

filed income tax return (1040PC format) for 1996, which also

lists the Ulloa Street address as petitioner’s home address.

Finally, respondent attached to the supplement copies of

transcripts of computer records obtained in June 1997 showing

petitioner’s current address as the Ulloa Street address.    In the

supplement, respondent acknowledges that at that time (i.e., in

June 1997) petitioner’s brother Gary Munoz informed respondent

that petitioner was stationed overseas in Korea on a military

assignment; however, respondent asserts that the brother was

unable to provide a forwarding address for petitioner.

Discussion

     This Court's jurisdiction to redetermine a deficiency

depends upon the issuance of a valid notice of deficiency and a

timely filed petition.   See 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
                               - 5 -


authorizes the Commissioner, after 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.    See

sec. 6212(b)(1).   If the notice is mailed to the taxpayer at the

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

the taxpayer is immaterial.   See 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,

81 T.C. 42, 52 (1983).   In turn, the taxpayer has 90 days or, as

here, 150 days if the notice is addressed to a person outside the

United States,3 from the date that the notice is mailed to file a

petition for a redetermination of the deficiency.   See sec.

6213(a); see also sec. 7502 (treating timely mailing as timely

filing).

     It is clear in the present case that the petition was not

filed in respect of either notice of deficiency within the

requisite 150-day period.   Petitioner suggests, however, that his

status as an active-duty member of the Armed Forces entitled him

to a greater period within which to file his petition.


     3
       In Looper v. Commissioner, 73 T.C. 690, 692-696 (1980), we
held that the phrase “outside the United States” modifies both
“addressed” and “person”. Accordingly, petitioner was entitled
to the 150-day period to file a petition because he was “outside
the United States” at the time that each notice of deficiency was
mailed.
                                - 6 -


     Section 7508(a)(1)(C) serves to extend the normal 90-day or

150-day period within which a petition must generally be filed by

disregarding the time when a member of the Armed Forces is

present in a combat zone and the next 180 days thereafter.      For

purposes of section 7508, a “combat zone” is an area designated

as such by the President of the United States by Executive order

for purposes of section 112.4   However, Korea has not been a

combat zone since January 1955.5   Accordingly, section 7508

offers petitioner no solace.    See Stone v. Commissioner, 73 T.C.

617, 620-621 (1980).

     Petitioner also alleges that he did not receive either

notice of deficiency until copies were sent to him in February

1999, thereby implying that the notices are invalid because they

were not mailed to him at his last known address.




     4
        Sec. 112 serves to exclude from gross income certain
combat zone compensation received by members of the Armed Forces.
See Waterman v. Commissioner, 110 T.C. 103 (1998), affd. 179 F.3d
123 (4th Cir. 1999).
     5
        Korea and its adjacent waters were declared a combat zone
as of June 27, 1950, by President Truman in Executive Order
10195, 1951-1 C.B. 6. That designation was withdrawn as of Jan.
31, 1955, in Executive Order 10585, 1955-1 C.B. 17.

     For other declarations involving hostilities in Korea, see
Rev. Rul 207, 1953-2 C.B. 442, regarding personnel of the U.N.
Korean Reconstruction Agency, and Act of Apr. 24, 1970, Pub. L.
91-235, 84 Stat. 200, regarding the crewmen of the Pueblo while
illegally detained by North Korea in 1968.
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     Although the phrase "last known address" is not defined in

the Internal Revenue Code or the regulations, we have held that

absent clear and concise notice of a change of address, a

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

taxpayer’s return that was most recently filed at the time that

the notice was issued.   Abeles v. Commissioner, 91 T.C. 1019,

1035 (1988); King v. Commissioner, supra at 681.     In deciding

whether respondent 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."      Frieling v. Commissioner,

supra at 49.   The burden of proving that the notice was not sent

to the taxpayer at the taxpayer's last known address is on the

taxpayer.   See Yusko v. Commissioner, supra at 808.

     Respondent mailed the notices of deficiency to the address

listed on petitioner's 1996 return--the last return filed by

petitioner prior to the mailing of the notices of deficiency in

October and December 1997.   Consequently, the notices of

deficiency were mailed to petitioner at his last known address

unless petitioner can demonstrate: (1) He provided respondent

with clear and concise notice of a change of address; or (2)

prior to the mailing of the notices of deficiency, respondent

knew of a change in petitioner's address and did not exercise due

diligence in ascertaining petitioner's correct address.     See
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Abeles v. Commissioner, supra; Keeton v. Commissioner, 74 T.C.

377, 382 (1980); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C.

367, 374, affd. without published opinion 538 F.2d 334 (9th Cir.

1976).

     There is nothing in the record to demonstrate that

petitioner gave respondent clear and concise notice of any change

of address.   Indeed, the record indicates that petitioner has at

all relevant times regarded, and held out, the Ulloa Street

address as his home address.

     On the other hand, respondent was informed in June 1997,

before the notices were mailed, that petitioner was stationed

overseas in Korea on a military assignment.   We must decide,

therefore, whether respondent exercised due diligence in mailing

the notices to the Ulloa address.   For the following reasons, we

conclude that respondent exercised the requisite diligence.

     First, accepting petitioner’s allegation that he did not

receive the notices of deficiency upon their mailing in October

and December 1997, we observe that there is nothing in the record

to indicate what petitioner’s actual address was at those times.

     Second, respondent searched respondent’s computer records in

June 1997, and such search confirmed petitioner’s current address

as the Ulloa Street address.
                               - 9 -


     Third, respondent sought to obtain a forwarding address from

petitioner’s brother, but the brother was unable to provide that

information.

     Fourth, petitioner continued to have a close connection with

the Ulloa Street address as demonstrated by the fact that he

regarded it as his “leave address” on his request for paternity

leave in June 1997 when his wife was expecting a baby.

     Finally, neither notice of deficiency was returned to

respondent by the Postal Service as undeliverable.6

Conclusion

     Because petitioner did not file his petition with the Court

within the time prescribed by sections 6213(a) and 7502, we lack

jurisdiction to redetermine petitioner’s tax liability for the

years in issue.   Accordingly, we shall grant respondent's motion

to dismiss for lack of jurisdiction, as supplemented.7




     6
        Respondent has not indicated that any prenotice
correspondence that may have been sent to the Ulloa Street
address was returned by the Postal Service as undeliverable. If
such had been the case, we would have expected that fact to have
been brought to our attention by respondent in the supplement to
the motion to dismiss.
     7
        Although petitioner cannot pursue his case in this Court,
he is not without a judicial remedy. Specifically, petitioner
may pay the tax, file a claim for refund with the Internal
Revenue Service, and, if his claim is denied, sue for a refund in
the appropriate Federal District Court or the U.S. Court of
Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142
(1970).
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In order to give effect to the foregoing,



                         An order granting respondent's

                    motion, as supplemented, and dismissing

                    this case for lack of jurisdiction will

                    be entered.
