                        T.C. Memo. 2002-269



                      UNITED STATES TAX COURT



                 EMILY T. NICHOLS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12336-01.              Filed October 24, 2002.



     John F. Hernandez, for petitioner.

     Nancy L. Karsh, for respondent.



                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Chief Special

Trial Judge Peter J. Panuthos pursuant to the provisions of

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



     1
        Section references are to the Internal Revenue Code, as
amended. Rule references are to the Tax Court Rules of Practice
and Procedure.
                                - 2 -

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 case is before

the Court on respondent’s motion to dismiss for lack of

jurisdiction.    Respondent contends that the petition was not

timely filed and, therefore, the case should be dismissed for

lack of jurisdiction.    As we discuss in greater detail below, we

shall grant respondent’s motion to dismiss.

                              Background

     Respondent issued a notice of deficiency dated December 8,

1994, to petitioner and her deceased husband, Pericles G.

Nichols, determining a deficiency in their Federal income tax for

the 1991 tax year of $409,892, and an addition to tax under

section 6662(a) of $81,978.    On December 8, 1994, respondent

mailed the notice of deficiency to “Pericles G. Nichols (Decd)

and Emily T. Nichols”, 9434 W. Broadview Drive, Bay Harbor

Island, Florida 33154 (the Bay Harbor Island address).    The Bay

Harbor Island address was the address where petitioner resided in

1994 and 1995.    The notice of deficiency mailed to the Bay Harbor

Island address was returned to respondent unopened and marked as

“Return to Sender”.    The reason checked for being returned

undelivered is itself illegible.    The envelope in which the

notice of deficiency was mailed to the Bay Harbor Island address
                                - 3 -

bears the handwritten and encircled word “Deceased”.   It is not

clear from the record who wrote “Deceased” or when it was

written.    Also, the U.S. Postal Service Form 3811 attached to the

envelope in which the notice of deficiency was mailed reflects an

illegible and crossed out signature on the line marked as

“Signature (Agent)”.

     On the same date respondent mailed a duplicate notice of

deficiency to “Pericles G. Nichols (Decd) and Emily T. Nichols”,

P.O. Box 2085, Palm Beach, Florida 33480 (the Palm Beach

address).   The notice of deficiency mailed to the Palm Beach

address was returned to respondent unopened and marked as

“Forwarding Order Expired”.

     On April 13, 1995, respondent mailed a notice of deficiency

for the 1991 tax year to “Pericles G. Nichols (Decd) and Emily T.

Nichols”, 999 Ponce de Leon Boulevard, Coral Gables, Florida

33134 (the Coral Gables address).   The notice of deficiency dated

April 13, 1995, was mailed to the Coral Gables address and was

otherwise identical to the notices mailed on December 8, 1994.

Respondent explained that, upon receipt of the returned notices

of deficiency mailed on December 8, 1994, he became aware that

petitioner did not receive either of the duplicate notices of

deficiency and decided to mail the notice of deficiency for the

1991 tax year to an additional address.   This notice of

deficiency was returned to respondent unopened, marked as “Return
                                - 4 -

to Sender”, and the reason checked is “Attempted Not Known”.

     Pericles G. Nichols died sometime between the date when the

1991 tax return was filed and the notices of deficiency were

mailed on December 8, 1994.    Respondent was aware of Pericles G.

Nichols’s death prior to the mailing of the notices of deficiency

on December 8, 1994.

     On October 1, 2001, petitioner filed a petition for

redetermination with the Court.    Petitioner resided in Bay Harbor

Island, Florida, at the time she filed her petition.      Attached to

the petition is a copy of the notice of deficiency mailed to the

Palm Beach address.    The parties have stipulated that

petitioner’s last known address at all times relevant to the

matter at hand was the Bay Harbor Island address.

     Respondent filed a motion to dismiss for lack of

jurisdiction.   Respondent contends that this case must be

dismissed for lack of jurisdiction on the ground that the

petition was not filed within the 90-day period prescribed in

section 6213(a).   Petitioner filed an objection to respondent’s

motion to dismiss.    Petitioner contends that the issuance of the

notice of deficiency to the Coral Gables address on April 13,

1995, acted to rescind, withdraw, or otherwise invalidate the

duplicate notices of deficiency dated and mailed on December 8,

1994.   Respondent contends that a notice of deficiency was issued

to petitioner’s last known address, the Bay Harbor Island
                                - 5 -

address, on December 8, 1994, and this satisfies the requirements

of section 6213.    Respondent asserts that the mailing of another

notice of deficiency for the same tax year with a new date does

not invalidate the prior valid notice of deficiency.

                             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).    Section 6212(a) expressly authorizes

respondent, 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 deficiency notice is mailed to the 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).    A misaddressed notice of deficiency that is

returned to the Commissioner undelivered is null and void.

Mulvania v. Commissioner, 769 F.2d 1376, 1380-1381 (9th Cir.

1985), affg. T.C. Memo. 1984-98.    The taxpayer generally has 90

days from the date the notice of deficiency is mailed to file a

petition in this Court for a redetermination of the deficiency.

Sec. 6213(a).
                               - 6 -

     There is no question that the petition was not timely filed

and that we lack jurisdiction over the petition filed herein.    We

must decide, however, whether the matter should be dismissed

against respondent because the notice of deficiency was invalid

or rescinded, or against petitioner because the petition was in

response to a valid notice of deficiency but was untimely.

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

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

Mollet v. Commissioner, 757 F.2d 286 (11th Cir. 1985), affg. 82

T.C. 618 (1984).

     A taxpayer to whom a notice of deficiency has been properly

mailed cannot defeat actual notice by deliberately refusing

delivery of the notice of deficiency.   Patmon & Young Profl.

Corp. v. Commissioner, 55 F.3d 216, 218 (6th Cir. 1995), affg.

T.C. Memo. 1993-143; Sego v. Commissioner, 114 T.C. 604, 611

(2000).

     Section 6212(d) authorizes the Commissioner, with the

consent of the taxpayer, to rescind any notice of deficiency

mailed to the taxpayer.   If a notice of deficiency is rescinded,

the taxpayer has no right to file a petition with the Court based

on such a notice.   Hanashiro v. Commissioner, T.C. Memo. 1999-78;

Powell v. Commissioner, T.C. Memo. 1998-108.   No statutory

provision specifically addresses whether respondent may

unilaterally abandon or withdraw a notice of deficiency or the
                                 - 7 -

effect of such an abandonment or withdrawal.     Mitteldorfer

Straus, Inc. v. Commissioner, T.C. Memo. 1979-503 (citing

Skaneateles Paper Co. v. Commissioner, 29 B.T.A. 150 (1933));

Holter v. Commissioner, T.C. Memo. 1978-411.

     Petitioner agrees that, in 1994 and 1995, her last known

address was the Bay Harbor Island address.    We conclude that the

notice of deficiency that was mailed to the Bay Harbor Island

address on December 8, 1994, was properly mailed to petitioner’s

last known address.   She has not argued, and there are no facts

in the record that would indicate, that the U.S. Postal Service

mishandled the notice of deficiency mailed to the Bay Harbor

Island address.   In fact, petitioner’s counsel explained to the

Court that Pericles G. Nichols died sometime before the December

8, 1994, notice of deficiency was mailed to the Bay Harbor Island

address, and that during this time petitioner had received a

great volume of mail and “she wasn’t paying attention to

everything that was going on”.    It seems more likely than not

that the notice of deficiency sent to petitioner’s last known

address was returned undelivered because of petitioner’s refusal

of delivery.   As such, respondent has done all he could

reasonably do to provide notice to petitioner.     Erhard v.

Commissioner, 87 F.3d 273 (9th Cir. 1996), affg. T.C. Memo. 1994-

344; Patmon & Young Profl. Corp. v. Commissioner, supra at 218.

     There is no indication in the record that respondent
                                 - 8 -

intended to rescind, or that petitioner consented to, rescission

of the notice of deficiency mailed to the Bay Harbor Island

address.   Also, there is no evidence that respondent withdrew or

otherwise caused the notice of deficiency mailed to the Bay

Harbor Island address to be invalidated.       The issuance of the

notice of deficiency on April 13, 1995, is of no consequence

because it was not mailed to petitioner’s last known address and

was not received.

     To reflect the foregoing,

                                         An order will be entered

                                 granting respondent’s motion to

                                 dismiss for lack of jurisdiction.
