                        T.C. Memo. 2002-170



                      UNITED STATES TAX COURT



         JUAN EL KHOURI AND KITTY HUNTER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12873-01.               Filed July 12, 2002.



     Juan El Khouri and Kitty Hunter, pro sese.

     Charles A. Hall, Judy Wall, and Minakshi Tyagi-Jayasinghe,

for respondent.



                        MEMORANDUM OPINION

     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1     The Court agrees with



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

and adopts the opinion of the Special Trial Judge, which is set

forth below.

                OPINION OF THE SPECIAL TRIAL JUDGE

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

on respondent’s motion to dismiss for lack of jurisdiction, as

supplemented.   Respondent contends that the Court lacks

jurisdiction on the ground that the petition was not timely filed

pursuant to sections 6213(a) and 7502.    As explained in detail

below, we shall grant respondent’s motion to dismiss, as

supplemented.

                             Background

     On July 6, 2001, respondent issued a joint notice of

deficiency to petitioners.   In the notice, respondent determined

a deficiency in petitioners’ Federal income tax for 1998 in the

amount of $96,086 and an addition to tax under section 6651(a)(1)

for failure to timely file in the amount of $13,452.60.    The

notice of deficiency was sent to petitioners by certified mail at

two separate addresses and a copy of the notice was sent by

regular, first-class mail to Rod Mirand, identified as

petitioners’ authorized representative.

     On October 10, 2001, the Court received and filed a joint

petition for redetermination in which petitioners challenged
                                - 3 -

respondent’s deficiency determinations.2    The petition is dated

October 5, 2001.    The petition arrived at the Court in an

envelope bearing U.S. Postal Service certified mail No. 7001 0360

0001 7533 5423 and two postmarks.    One of the postmarks is a

private postmeter postmark showing Bellflower, California, as the

postal locale, and the other is a U.S. Postal Service postmark

showing Long Beach, California, as the postal locale.    Both

postmarks are dated October 5, 2001.

     As indicated, respondent filed a motion to dismiss for lack

of jurisdiction on the ground that the petition was not timely

filed.   Petitioners filed an objection to respondent’s motion to

dismiss, alleging that they initially mailed a petition to the

Court on September 15, 2001, and, after they received no response

from the Court, they mailed a second petition to the Court on

October 4, 2001.3   Petitioners’ objection suggests that the


     2
        The body of the petition, which is essentially a letter
to the Tax Court, reads as follows:

     Tax Court;

     This letter represents a formal request for petition
     forms needed to file with the court.

     See attached “Notice Of Deficiency” letter dated July
     6, 2001, giving us the 90 days to file the petition
     forms.

     Please send forms to: Juan El Khouri
                               [address]
     3
         In response to petitioners’ allegation regarding the
                                                    (continued...)
                               - 4 -

delivery of their first petition may have been impeded because of

the terrorist attacks on September 11, 2001.

     Respondent filed a response to petitioners’ objection,

asserting that petitioners failed to demonstrate that the

delivery of the petition purportedly mailed to the Court on

September 15, 2001, was impeded because of the events of

September 11, 2001.4   Respondent also argued that the U.S. Postal

Service postmark date of October 5, 2001, appearing on the

envelope in which the petition was delivered to the Court,

conclusively establishes that the petition was not mailed within

the statutory 90-day filing period.    See sec. 301.7502-

1(c)(1)(iii)(A), Proced. & Admin. Regs. (regarding U.S. Postal

Service postmarks); see also sec. 301.7502-1(c)(1)(iii)(B),

Proced. & Admin. Regs. (regarding private postmeter postmarks).

     The Court subsequently issued an Order directing petitioners

to provide the Court with any documentation they might have



     3
      (...continued)
mailing of a petition on Sept. 15, 2001, the Court searched its
records but was unable to find any indication of either a
petition filed by petitioners before Oct. 10, 2001, or any
correspondence received from them before that date.

     We note that petitioners’ allegation regarding the mailing
of the petition on Oct. 4, 2001, is inconsistent not only with
the postmark dates on the envelope containing the petition but
also with the date on the petition itself.
     4
        We note that mail service to the Court was seriously
disrupted by the anthrax attacks in Washington, D.C., last fall,
but that such attacks did not occur until mid-October 2001.
                               - 5 -

showing that they mailed a petition to the Court on September 15,

2001, and, if available, a copy of U.S. Postal Service Form 3800,

Certified Mail Receipt, for certified mail item No. 7001 0360

0001 7533 5423.   Petitioners did not respond to this Order.

     This matter was called for hearing at the Court’s motions

session held in Washington, D.C., on March 27, 2002.   Counsel for

respondent appeared at the hearing and offered argument in

support of respondent’s motion to dismiss.   There was no

appearance by or on behalf of petitioners at the hearing, nor did

petitioners file any statement pursuant to Rule 50(c), the

applicability of which was brought to their attention by the

Court in its Order calendaring respondent’s motion for hearing.

     Following the hearing, the Court directed respondent to file

a supplement to his motion to dismiss addressing the question

whether section 7508A, or any public notices issued pursuant to

that section after September 11, 2001, would provide relief to

petitioners with regard to the timeliness of their petition.

Respondent complied with the Court’s Order and filed a supplement

to his motion, asserting that petitioners are not eligible for

relief under section 7508A with regard to the petition filed in

this case.

     This matter was called for further hearing at the Court’s

motions session held in Washington, D.C., on May 8, 2002.

Counsel for respondent appeared at the hearing and offered
                               - 6 -

argument in support of the motion to dismiss, as supplemented.

In particular, counsel argued that petitioners are not entitled

to relief under section 7508A and that the petition in this case

should be dismissed on the ground that it was not timely filed.

There was no appearance by or on behalf of petitioners at the

hearing, nor did petitioners file any statement pursuant to Rule

50(c).   However, after the hearing, petitioners filed an

objection to respondent’s motion in which they state that the

petition mailed to the Court on September 15, 2001, was sent by

regular, first-class mail and that they are therefore unable to

provide the Court with documentary proof of mailing.

                            Discussion

     The Tax Court is a court of limited jurisdiction.    The

Court’s jurisdiction to redetermine a deficiency depends on 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 the Commissioner mails the notice of

deficiency to the taxpayer’s “last known address”.    Sec. 6212(b);

Frieling v. Commissioner, 81 T.C. 42, 52 (1983).     The taxpayer,

in turn, has 90 days (or 150 days if the notice is addressed to a
                               - 7 -

person outside of the United States) 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).

     Section 7502(a), the so-called timely mailing/timely filing

rule, provides that, in certain circumstances, a timely mailed

petition will be treated as though it were timely filed.    Section

7502(a)(2) provides that the timely mailing/timely filing rule

applies only if the postmark date on an envelope falls within the

prescribed period on or before the prescribed date.

     Petitioners did not challenge the validity of the notice of

deficiency.   We observe that the notice was mailed to petitioners

at two separate addresses and that a copy of the notice was sent

to petitioners’ authorized representative.    Accordingly, it

appears that the notice was mailed to petitioners at their last

known address.   See sec. 6212(b)(1).   Under the circumstances,

the issue for decision is whether the petition was timely filed.

     The record in this case demonstrates that the petition was

not filed within the 90-day period prescribed in section 6213(a).

The record shows that respondent mailed the notice of deficiency

to petitioners on July 6, 2001.   Consequently, the 90-day filing

period expired on Thursday, October 4, 2001–-a date that was not

a legal holiday in the District of Columbia.    The petition was

received and filed by the Court on October 10, 2001, 6 days after

the expiration of the 90-day period.    Moreover, the petition was
                              - 8 -

dated October 5, 2001, and it arrived at the Court in an envelope

bearing both a U.S. Postal Service postmark date and a private

postmeter postmark date of October 5, 2001–-a date that was 91

days after the mailing of the notice of deficiency.   It follows

that the petition was neither mailed to the Court nor filed

within the 90-day filing period prescribed in section 6213(a) or

section 7502(a).

     The only remaining question is whether petitioners are

entitled to relief because of the events of September 11, 2001.

Section 7508A, titled “Authority To Postpone Certain Tax-Related

Deadlines By Reason Of Presidentially Declared Disaster”,

provides in pertinent part:

          SEC. 7508A(a). In General.–-In the case of a
     taxpayer determined by the Secretary to be affected by
     a Presidentially declared disaster (as defined by
     section 1033(h)(3)), the Secretary may prescribe
     regulations under which a period of up to 120 days may
     be disregarded in determining, under the internal
     revenue laws, in respect of any tax liability
     (including any penalty, additional amount, or addition
     to the tax) of such taxpayer--

               (1) whether any of the acts described in
          paragraph (1) of section 7508(a) were performed
          within the time prescribed therefor * * *.[5]

     5
        Sec. 7508A was amended by the Victims of Terrorism Tax
Relief Act of 2001, Pub. L. 107-134, sec. 112(a), 115 Stat. 2427,
2433. The amendment confers authority to postpone certain
deadlines by reason of terroristic or military actions and
extends the period that may be disregarded from 120 days to 1
year. The amendment applies to disasters and terroristic or
military actions occurring on or after Sept. 11, 2001, with
respect to any action of the Secretary of the Treasury, the
Secretary of Labor, or the Pension Benefit Guaranty Corp.
                                                   (continued...)
                               - 9 -

     Section 7508(a)(1)(C) and (K) lists “Filing a petition with

the Tax Court for redetermination of a deficiency” and “Any other

act required or permitted under the internal revenue laws

specified in regulations prescribed under this section by the

Secretary”, respectively, as acts with regard to which the

Secretary may postpone the time for performance.6    Regarding acts

contemplated by section 7508(a)(1)(K), section 301.7508-1(a),

Proced. & Admin. Regs., provides that the period of time that may

be disregarded applies to acts specified in a revenue ruling,

revenue procedure, notice, or other guidance published in the

Internal Revenue Bulletin.

     Section 301.7508A-1(c)(1), Proced. & Admin. Regs., lists the

acts performed by “affected taxpayers” the time for the

performance of which may be postponed.    Included within this list

of acts are “Filing a petition with the Tax Court” and “Any other

act specified in a revenue ruling, revenue procedure, notice,

announcement, news release, or other guidance published in the

Internal Revenue Bulletin”.   Sec. 301.7508A-1(c)(1)(iv), (vii),

Proced. & Admin. Regs.


     5
      (...continued)
occurring on or after Jan. 23, 2002.     Id. sec. 112(f), 115 Stat.
2435.
     6
        Section 7508(a)(1)(K) was amended by the Victims of
Terrorism Tax Relief Act of 2001, Pub. L. 107-134, sec. 112(b),
115 Stat. 2427, 2434, by striking the phrase “in regulations
prescribed under this section”. The amendment applies as
described supra note 5.
                              - 10 -

     Section 301.7508A-1(d)(1), Proced. & Admin. Regs., defines

seven categories of “affected taxpayers” for purposes of section

301.7508A-1(c)(1), Proced. & Admin. Regs.   Included among these

categories are any individual whose principal residence or

principal place of business is located in a covered disaster

area, a relief worker who is assisting in a covered disaster

area, any individual whose principal residence or principal place

of business is not located in a covered disaster area but whose

tax records are maintained in such an area, and the spouse of an

affected taxpayer (but solely with regard to a joint return).     A

“covered” disaster area means a Presidentially declared disaster

area to which the IRS has determined that relief under section

7508A applies.   Sec. 301.7508A-1(d)(2), Proced. & Admin. Regs.

Finally, section 301.7508A-1(e), Proced. & Admin. Regs., provides

as follows:

          (e) Notice of postponement of certain acts. If any
     tax-related deadline is postponed under section 7508A
     and this section, the IRS will publish a revenue
     ruling, revenue procedure, notice, announcement, news
     release, or other guidance published in the Internal
     Revenue Bulletin * * * describing the acts postponed,
     the number of days disregarded with respect to each
     act, the time period to which the postponement applies,
     and the location of the covered disaster area.
     Guidance under this paragraph (e) will be published as
     soon as practicable after the declaration of a
     Presidentially declared disaster.

     Following the events of September 11, 2001, the Commissioner

promptly issued a series of Notices announcing the relief

available to taxpayers affected by the terrorist attacks.
                              - 11 -

Notice 2001-61

     In Notice 2001-61, 2001-40 I.R.B. 305, released September

15, 2001, the Commissioner announced relief under section 7508A,

section 6081 (providing for extensions of time for filing

returns), and section 6161 (providing for extension of time for

paying tax) for taxpayers affected by the terrorist attacks on

September 11, 2001.   The Notice acknowledges that President

George W. Bush declared five New York counties and Arlington

County, Virginia, as Federal disaster areas.   As a result, those

areas qualified as “covered disaster areas” and taxpayers

residing in those areas qualified as “affected taxpayers” under

section 7508A.   Notice 2001-61 states that the Commissioner

determined that other specified taxpayers would be considered

affected taxpayers, regardless of where they resided, including

victims of the crashed airliners, relief workers assisting in a

covered disaster area or in Pennsylvania, and taxpayers whose

place of employment was located in the declared disaster areas.

     Notice 2001-61 grants six particular types of relief.     In

particular, the notice grants a 120-day postponement of time to

“affected taxpayers” to perform the acts (other than those

specifically addressed in the notice) described in section

301.7508A-1(c)(1), Proced. & Admin. Regs., which acts

specifically include the filing of a petition with the Tax Court.

The postponement applies to acts required to be performed within
                                  - 12 -

the period beginning on September 11, 2001, and ending on

November 30, 2001.

Notice 2001-63

     In Notice 2001-63, 2001-40 I.R.B. 308, released September

15, 2001, the Commissioner announced additional relief under

sections 7508A, 6081, and 6161, for all taxpayers regardless of

their location.       In particular, Notice 2001-63 states in

pertinent part:

     The Internal Revenue Service has determined that the
     due date for all federal tax obligations falling
     between September 10, 2001, and September 24, 2001, is
     postponed to September 24, 2001. This postponement of
     time covers the filing of returns and claims for
     refund, the payment of tax (including estimated tax
     payments), making elections, and filing any other
     Federal tax documents. The postponement does not apply
     to deposits of federal taxes. * * * [Emphasis added.]

Notice 2001-68

     Finally, in Notice 2001-68, 2001-47 I.R.B. 504, released

November 10, 2001, the Commissioner announced additional relief

to supplement the relief granted in Notice 2001-61.       As relevant,

Notice 2001-68 states in pertinent part:

     C. ADDITIONAL GRANT OF RELIEF

        *         *         *        *       *      *        *

     (2) Under paragraph (4) of the Grant of Relief section
     of Notice 2001-61, the IRS granted to all affected
     taxpayers a 120-day postponement of time to perform the
     acts described in section 301.7508A-1(c)(1), [Proced. &
     Admin. Regs.,] if the last day to perform the act fell
     within the period beginning on September 11, 2001, and
     ending on November 30, 2001. One of these acts is the
     filing of any Tax Court petition. Under this notice,
                               - 13 -

     the relief provided by paragraph 4 is expanded as
     follows. If the last date for filing any Tax Court
     petition would otherwise be on or after December 1,
     2001, and on or before December 31, 2001, the last date
     for filing the petition is postponed by 60 days under
     section 7508A.

In short, Notice 2001-68 expanded the period during which an

affected taxpayer would be permitted to file a petition with the

Court.

     Based upon our review of section 7508A, section 301.7508A-1,

Proced. & Admin. Regs., and Notices 2001-61, 2001-63, and 2001-

68, we conclude that petitioners are not entitled to relief with

regard to the late-filed petition in this case.    Petitioners, who

are residents of southern California, have not alleged or shown

that they are “affected taxpayers” within the meaning of section

301.7508A-1(d)(1)(i)-(vi), Proced. & Admin. Regs., or Notices

2001-61 and 2001-68.    Moreover, the generic relief extended to

all taxpayers in Notice 2001-63, see section 301.7508A-

1(d)(1)(vii), Proced. & Admin. Regs., is of no benefit to

petitioners.   The latter Notice states that the deadline for all

Federal tax obligations falling between September 10, 2001, and

September 24, 2001, is postponed to September 24, 2001.    Because

the deadline for filing a timely petition in this case expired on

October 4, 2001, it follows that such deadline is not postponed

under Notice 2001-63.
                             - 14 -

     Consistent with the preceding discussion, we shall grant

respondent’s motion to dismiss for lack of jurisdiction, as

supplemented.

     To reflect the foregoing,



                                       An order will be entered

                                 granting respondent’s motion to

                                 dismiss for lack of jurisdiction

                                 as supplemented.
