                        T.C. Memo. 1998-221



                      UNITED STATES TAX COURT




            GUSTAVO and MARIA GUERRERO, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23492-97.                       Filed June 24, 1998.



     Gustavo and Maria Guerrero, pro se.

     Stuart Spielman and Jason M. Silver, for respondent.




                        MEMORANDUM OPINION



     DAWSON, Judge:   This case was assigned to Chief Special

Trial Judge Peter J. Panuthos, pursuant to the provisions of
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section 7443A(b)(4) and Rules 180, 181, and 183.1    The Court

agrees with and adopts the opinion of the Special Trial Judge,

which is set forth below.

                OPINION OF THE SPECIAL TRIAL JUDGE

     PANUTHOS, Chief Special Trial Judge:   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 Gustavo and Maria Guerrero

(petitioners) failed to file their petition 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.

See Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989), affd.

without published opinion 935 F.2d 1282 (3d Cir. 1991).

Background

     On April 15, 1996, petitioners filed a joint Federal income

tax return for the taxable year 1995 listing their address as

731 East 52d Street, Los Angeles, California 90011 (the Los

Angeles address).   On May 14, 1996, respondent sent a letter to

petitioners at the Los Angeles address notifying petitioners

     1
        All section references are to the Internal Revenue Code
as amended. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 3 -


that their tax return for 1993 had been selected for

examination.   On October 4, 1996, respondent sent a so-called

30-day letter to petitioners at the Los Angeles address

providing petitioners with notice of respondent's proposed

changes to their tax liability for 1993.   Respondent did not

receive either of the above-described letters back from the U.S.

Postal Service undelivered.

     On or about September 27, 1996, petitioners wrote to the

Internal Revenue Service Center in Fresno, California,

requesting a copy of their 1993 tax return.   Although

petitioners' September 27, 1996, letter is not part of the

record in this case, it appears that petitioners listed their

address as 10426 Adella Ave., Southgate, California 90280 (the

Southgate address).   On December 31, 1996, the operations

manager for the Document Services Branch at the Internal Revenue

Service Center, Western Region, mailed a letter to petitioners

at the Southgate address seeking additional information

regarding petitioners' request for a copy of their 1993 tax

return.

     In the meantime, one day earlier, on December 30, 1996,

respondent had mailed a joint notice of deficiency to

petitioners at the Los Angeles address determining a deficiency

in their Federal income tax for 1993 in the amount of $18,339

and an accuracy-related penalty in the amount of $3,668 pursuant
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to section 6662(a).    On January 31, 1997, the envelope bearing

the notice of deficiency was returned to respondent undelivered

and marked "UNCLAIMED".

     Petitioners filed a joint petition for redetermination with

the Court on December 1, 1997.    The petition was delivered to

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

date of November 26, 1997.    At the time the petition was filed,

petitioners resided at the Southgate address.

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction asserting that the petition was not timely

filed.    Petitioners filed an objection to respondent's motion

asserting that the notice of deficiency was not mailed to their

last known address which petitioners identify as the Southgate

address.    Respondent filed a response to petitioners' objection

asserting:    (1) Petitioners' September 27, 1996 letter to the

Fresno Service Center requesting a copy of their 1993 tax return

did not constitute clear and concise notice of petitioners'

change of address; and (2) a review of respondent's computer

records revealed that petitioners' address did not change

between 1988 and 1997.

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

session in Washington, D.C.    Counsel for respondent appeared at

the hearing and presented argument in support of the pending

motion.    No appearance was entered by or on behalf of
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petitioners at the hearing, nor did petitioners file a statement

with the Court pursuant to Rule 50(c).

Discussion

     The 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 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).    If a notice of deficiency is mailed to a taxpayer's

last known address, actual receipt of the notice 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 (or 150 days under circumstances not present

herein) from the date that the notice of deficiency is mailed to

file a petition with the Court for a redetermination of the

deficiency.   Sec. 6213(a).

     Respondent mailed the notice of deficiency in question to

petitioners at the Los Angeles address on December 30, 1996.
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The petition arrived at the Court in an envelope postmarked

November 26, 1997, and was filed by the Court on December 1,

1997.   Given 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) and 7502; Rule 13(a), (c); see Normac,

Inc. v. Commissioner, supra.

     The question presented is whether dismissal of this 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.

Petitioners contend that they did not receive the notice of

deficiency and that the notice is invalid because it was not

mailed to their last known address.

     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.    Although a taxpayer is obliged to

provide respondent with clear and concise notice of a change of

address, respondent must exercise reasonable care and due

diligence in ascertaining the taxpayer's correct address.      King
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v. Commissioner, supra at 681.    Once respondent has mailed the

notice of deficiency to the taxpayer's last known address, that

is all that is required, and respondent's reasonable care and

due diligence obligation has been satisfied.    Id.   The burden of

proving that a notice of deficiency was not sent to the

taxpayer's last known address is on the taxpayer.     Yusko v.

Commissioner, supra at 808.

     Respondent mailed the notice of deficiency to the Los

Angeles address listed on petitioners' 1995 joint tax return

filed April 15, 1996, the last tax return filed by petitioners

prior to the mailing of the notice of deficiency.     Consequently,

the notice of deficiency was mailed to petitioners' last known

address unless petitioners can demonstrate that they provided

respondent with clear and concise notice of their change of

address.

     Petitioners' assertion that the notice of deficiency is

invalid appears to be based on the contention that respondent

received clear and concise notice of petitioners' change of

address by virtue of petitioners' September 27, 1996 letter to

the Fresno Service Center.    However, petitioners failed to

submit the letter to the Court for consideration.     In any event,

insofar as the letter merely served as petitioners' request for

a copy of their 1993 tax return, it follows that the letter

would not constitute clear and concise notice of petitioners'
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change of address.   See King v. Commissioner, supra at 681;

Monge v. Commissioner, supra at 31-32; Cantu v. Commissioner,

T.C. Memo. 1990-354; James v. Commissioner, T.C. Memo. 1990-128;

Pritchett v. Commissioner, T.C. Memo. 1986-559.

     Considering all of the facts and circumstances, we hold

that respondent exercised due diligence and mailed the notice of

deficiency to petitioners' last known address.    Consequently, we

will grant respondent's Motion to Dismiss for Lack of

Jurisdiction.2

     In order to reflect the foregoing,

                                       An order will be entered

                               granting respondent's Motion to

                               Dismiss for Lack of Jurisdiction.




     2
          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).
