                              T.C. Memo. 1996-5



                        UNITED STATES TAX COURT



                MARIA E. REED, Petitioner v. COMMISSIONER
                     OF INTERNAL REVENUE, Respondent


        Docket No. 8453-95.                   Filed January 11, 1996.


        Maria E. Reed, pro se.

        Stuart Spielman and Paul L. Dixon, 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

        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 Maria E. Reed

(petitioner) failed to file her petition with this Court within

    1
      All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
                               - 2 -

the time prescribed in section 6213(a), we understand petitioner

to 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 January 5, 1994, respondent mailed a joint notice of

deficiency to petitioner and her former spouse, Phillip A. Reed,

determining a deficiency of $741 in their Federal income tax for

the taxable year 1990.   The notice of deficiency was mailed to

petitioner in duplicate form at two separate addresses:   (1) P.O.

Box 2259-210, Minden, Nevada 89423-2259592 (the Minden address);

and (2) P.O. Box 356-167, Paia, Hawaii   96779-0356567 (the Paia

address).

     The Minden address is the address listed on petitioner's

1991 and 1992 tax returns.   Petitioner filed her 1992 tax return

with respondent on or about February 14, 1993.2

     The envelope bearing the notice of deficiency mailed to the

Minden address was returned to respondent marked "Unclaimed".

There is no evidence in the record regarding the delivery of the

notice of deficiency mailed to the Paia address.

    2
       Petitioner filed her 1992 return electronically. The
date Jan. 29, 1993, appears opposite the signature of both
petitioner and the electronic return originator on Form 8453
(U.S. Individual Income Tax Declaration for Electronic Filing)
that accompanied the filing of the 1992 return.
      The record does not disclose the date on which petitioner
filed her 1991 tax return.
                                - 3 -

     On or about February 14, 1994, petitioner filed her 1993 tax

return, listing her address thereon as P.O. Box 603, Minden,

Nevada 89423.3

     Petitioner asserts that she was unaware that respondent had

determined a deficiency in her 1990 income tax until she received

a notice from the Internal Revenue Service dated March 6, 1995,

stating that a portion of the tax refund that she was otherwise

due for the taxable year 1994 would be applied to tax owing for

the taxable year 1990.

     Petitioner filed a petition for redetermination with this

Court on May 22, 1995.   The petition was delivered to the Court

in an envelope bearing a U.S. Postal Service postmark date of May

16, 1995.4

     As indicated, respondent filed a Motion to Dismiss For Lack

of Jurisdiction alleging that petitioner failed to file her

petition within the 90-day period prescribed in section 6213(a).

Petitioner filed an objection to respondent's motion to dismiss

alleging that the deficiency notice in question was not mailed to

her correct address, which she identified as P.O. Box 603,

Minden, Nevada 89423.    Respondent filed a response to

petitioner's objection countering that the deficiency notice was


    3
      Petitioner filed her 1993 return electronically. The date
Jan. 21, 1994, appears opposite the signature of both petitioner
and the electronic return originator on Form 8453 (U.S.
Individual Income Tax Declaration for Electronic Filing) that
accompanied the filing of the 1993 return.
    4
      At the time that the petition was filed, petitioner
resided in Minden, Nevada.
                                - 4 -

mailed to petitioner's last known address.   Thereafter,

petitioner filed a supplemental objection stating that she was

unaware of the deficiency notice until early in 1995.

     A hearing was conducted in this case on November 8, 1995, in

Washington, D.C.   Counsel for respondent appeared at the hearing

and presented argument in support the pending motion.    In

particular, counsel for respondent argued that the notice of

deficiency was mailed to petitioner's last known address in that

respondent's records indicate that petitioner's 1992 tax return

was the last return filed by petitioner prior to the mailing of

the notice of deficiency.   Although petitioner did not appear at

the hearing, she 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

notice of deficiency to 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 to the taxpayer at the

taxpayer's last known address, then actual receipt of the notice
                                 - 5 -

is immaterial.     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.       The

taxpayer, in turn, 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 deficiency notice in this case on

January 5, 1994.    Thus, the 90-day period for filing a timely

petition with this Court expired on Tuesday, April 5, 1994, a day

that was not a legal holiday in the District of Columbia.        Sec.

6213(a).    The envelope containing the petition in this case was

postmarked May 16, 1995, and the petition was filed by the Court

on May 22, 1995.    Given that the petition was neither mailed nor

filed prior to 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 dismissal of this case should be premised on petitioner's

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.

     Petitioner contends that respondent failed to mail the

notice of deficiency to her at her last known address.      We

disagree.

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

the Internal Revenue Code or in the regulations, we have held
                                 - 6 -

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 the

taxpayer at his or her last known address is on the taxpayer.

Yusko v. Commissioner, supra at 808.

        Contrary to petitioner's view of the matter, we conclude

that the notice of deficiency was mailed to petitioner at her

last known address.     Respondent mailed the notice to petitioner

at the address appearing on petitioner's 1992 tax return; i.e.,

the Minden, Nevada address.     The record clearly shows that

petitioner's 1992 tax return was the last return that petitioner

filed prior to the issuance of the notice of deficiency.

Moreover, petitioner has failed to come forth with any evidence

tending to show that she provided respondent with clear and

concise notice that she intended for respondent to correspond

with her at any address other than the Minden, Nevada, address.

        Because the notice of deficiency was mailed to petitioner at

her last known address, we shall grant respondent's motion to

dismiss for lack of jurisdiction.5

        In order to reflect the foregoing,




    5
      Although petitioner cannot pursue her case in this Court,
she is not without a legal remedy. In short, petitioner 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 United States Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
     - 7 -

     An order will be entered

granting respondent's motion and

dismissing this case for lack of

jurisdiction on the ground that the

petition was not timely filed.
