                       T.C. Memo. 2002-284



                     UNITED STATES TAX COURT



               EMMITT HASKELL PACK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7830-02.               Filed November 19, 2002.


     Emmitt Haskell Pack, pro se.

     Michael J. O’Brien and Richard Charles Grosenick, for

respondent.



                       MEMORANDUM OPINION

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

on respondent’s Motion to Dismiss for Lack of Jurisdiction.   With

regard to the taxable year 1999, respondent contends that this

case should be dismissed on the ground that the petition was not
                                - 2 -

timely filed pursuant to section 6213(a) or section 7502.1    With

regard to the taxable year 2000, respondent contends that this

case should be dismissed on the ground that no notice of

deficiency, as authorized by section 6212 and required by section

6213(a) to form the basis for a petition to this Court, has been

sent to petitioner, nor has respondent made any other

determination that would serve to confer jurisdiction on this

Court.

     As discussed in detail below, we shall grant respondent’s

motion to dismiss.

Background

     In January 1999, Emmitt Haskell Pack (petitioner) and Jennie

S. Pack (Ms. Pack) filed electronically a joint Federal income

tax return for the taxable year 1998.    In conjunction with the

filing of their return, petitioner and Ms. Pack, as well as their

return preparer, executed Form 8453 (1998), U.S. Individual

Income Tax Declaration for Electronic Filing, on January 29,

1999.    The address listed on the Form 8453 was Rt. 1, Box 2115,

Stilwell, OK 74960 (the Stilwell address).

     In February 2000, petitioner filed electronically a Federal

income tax return for the taxable year 1999.    In conjunction with

the filing of his return, petitioner, as well as his return


     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.
                                - 3 -

preparer, executed Form 8453 (1999), U.S. Individual Income Tax

Declaration for an IRS e-file Return, on February 4, 2000.    The

address listed on the Form 8453 was the Stilwell address.

     Petitioner’s return for 1999, which was filed on a head-of-

household basis, reported zero income tax and claimed a refund in

the amount of $4,231.    The latter amount consisted of withholding

in the amount of $481 and an earned income credit in the amount

of $3,750.    Respondent never issued a refund check but rather

“froze” petitioner’s account.

     In March 2000, respondent commenced an examination of

petitioner’s 1999 return.    The examination focused on filing

status, dependency exemption deductions, and the earned income

credit.

     On or about September 1, 2000, respondent issued a 30-day

letter proposing a deficiency in petitioner’s Federal income tax

for 1999.    The 30-day letter stated, in part, as follows:

     Thank you for your replies dated April 4 and May 24,
     2000. To follow is a list of what we received:
     * * * These documents do not allow us to establish
     that you meet the requirements for these issues
     involved. * * *

     On December 6, 2000, respondent sent a notice of deficiency

to petitioner.    In the notice, respondent determined a deficiency

in petitioner’s Federal income tax for the taxable year 1999 in

the amount of $4,714.    The deficiency was attributable

principally to the disallowance of the earned income credit
                                 - 4 -

($3,750); the balance of the deficiency ($964) was attributable

to a change in petitioner’s filing status (from head-of-household

to married filing separately) and the disallowance of two

dependency exemption deductions.

     Respondent sent the notice of deficiency to petitioner by

certified mail addressed to him at the Stilwell address.

However, petitioner did not receive the notice, and, on or about

January 17, 2001, it was returned to respondent by the Postal

Service.2   Thereafter, on June 11, 2001, respondent assessed the

deficiency against petitioner.

     On June 14, 2001, petitioner filed a Federal income tax

return (Form 1040) for the taxable year 2000.   On his return,

petitioner listed his address as 13410 North Webster Road,

Tahlequah, Oklahoma 74464.3   On his return, petitioner reported

zero tax and claimed a refund in the amount of $401.   The latter

amount consisted of withholding in the amount of $185 and an

earned income credit in the amount of $216.   Respondent applied

$185 of the claimed refund against petitioner’s outstanding

     2
        It is not completely clear why the notice of deficiency
was returned to respondent by the Postal Service. A partial copy
of the envelope in which the notice was apparently mailed bears a
stamp “not deliverable as addressed”; however, a second (but
incomplete) stamp, together with handwriting, suggests that the
envelope was returned to respondent unclaimed after two attempts
at delivery.
     3
        Each of the three Forms W-2, Wage and Tax Statements,
that accompanied petitioner’s income tax return for 2000
identified the Stilwell address as petitioner’s address.
                               - 5 -

liability for 1999.4

     On April 24, 2002, the Court received and filed an

(imperfect) petition.5   The petition, which is dated April 12,

2002, and is little more than a request for forms to file a

petition for redetermination, does focus on the fact that “my

1999 Income Tax Refund check was stopped”.   The petition arrived

at the Court by regular, first-class mail in an envelope bearing

a postmark date of April 15, 2002.

     On May 31, 2002, petitioner filed an amended petition.   In

his amended petition, petitioner purports to disagree with “tax

deficiencies for the years 1999 and 2000".   The gist of

petitioner’s complaint, however, appears to be the nonreceipt of

tax refunds for 1999 and 2000 in the amounts of $4,231 and $401,

respectively.   Petitioner attached to his amended petition a copy

of a letter to Commissioner Rossotti, the “in re” of which read:

          1999 INCOME TAX REFUND CHECK ( 1040 1999 )
          * * * What has happened to my Refund Check?


     4
        The record suggests that respondent may have disregarded
the portion of petitioner’s refund claim allocable to the earned
income credit because of sec. 32(c)(2)(B)(iv), which provides
that “no amount received for services provided by an individual
while the individual is an inmate at a penal institution shall be
taken into account” in determining the individual’s “earned
income”. In the absence of earned income, there is no basis for
an earned income credit. Sec. 32(a).
     5
        At the time that the petition was filed, petitioner was
in the custody of the Oklahoma Department of Corrections in
Helena, Oklahoma.
                               - 6 -

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction on the ground that the petition, insofar as it

relates to the taxable year 1999, was not timely filed, and

insofar as it relates to the taxable year 2000, was not filed in

respect of a notice of deficiency or other determination that

would serve to confer jurisdiction on the Court.

     Petitioner filed a Reply to respondent's motion, asserting

that he had not received the notice of deficiency and that he had

been incarcerated since “February or March 2000", perhaps

implying that the notice of deficiency had not been mailed to him

at his last known address.   Petitioner also expressed continuing

concern regarding “the taxable year 1999 refund check”.   Finally,

petitioner alleged that he never authorized the electronic filing

of any return for 1999.

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

Sessions in Washington, D.C., on September 25, 2002, and October

23, 2002.   Counsel for respondent appeared at the hearings and

offered argument and exhibits in support of respondent's motion.

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

hearings, nor did petitioner file a written statement with the

Court pursuant to Rule 50(c), the provisions of which were noted

in the Court’s orders calendaring respondent’s motion for

hearing.
                               - 7 -

Discussion

     The Tax Court, like all Federal courts, is a court of

limited jurisdiction, and we may exercise our jurisdiction only

to the extent authorized by Congress.     Naftel v. Commissioner, 85

T.C. 527, 529 (1985).   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

at 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, actual receipt of the notice by the taxpayer 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 if the notice is

addressed to a 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.
                                - 8 -

6213(a).    Pursuant to section 7502(a), a timely mailed petition

will be treated as though it were timely filed.

     A.    Taxable Year 1999

     There is no question that respondent mailed the notice of

deficiency for 1999 to petitioner on December 6, 2000.    However,

the petition was not filed with the Court until April 24, 2002, a

date more than 16 months after the mailing of the notice of

deficiency.    Moreover, the envelope in which the petition was

mailed to the Court bears a U.S. Postal Service postmark date of

April 15, 2002.    Under these circumstances, it follows that the

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

section 6213(a) and that we must dismiss this case for lack of

jurisdiction.

     Notwithstanding the foregoing, because of the suggestion

that the notice of deficiency for 1999 was not mailed to

petitioner at his last known address, the issue for decision is

whether the dismissal of this case should be based on

petitioner's failure to file a timely petition under section

6213(a) or whether dismissal should be based on respondent's

failure to issue a valid notice of deficiency under section 6212.

If jurisdiction is lacking because of respondent's failure to

issue a valid notice of deficiency, we shall dismiss on that

ground rather than for lack of a timely filed petition.    Pietanza

v. Commissioner, 92 T.C. 729, 735-736 (1989), affd. without
                               - 9 -

published opinion 935 F.2d 1282 (3d Cir. 1991); Weinroth v.

Commissioner, 74 T.C. 430, 435 (1980); Keeton v. Commissioner, 74

T.C. 377, 379-380 (1980).

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

the Internal Revenue Code, 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.      King

v. Commissioner, supra at 681; Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988); see sec. 301.6212-2, Proced. & Admin. Regs.

In deciding whether the Commissioner mailed a notice to a

taxpayer at the taxpayer's last known address, the relevant

inquiry “pertains to * * * [the Commissioner’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 notice of deficiency for 1999 to the

address listed on petitioner's 1999 return--the last return filed

by petitioner prior to the mailing of such notice on December 6,

2000.6   Consequently, the notice of deficiency for 1999 was

     6
        Petitioner’s allegation that he never authorized the
filing of an electronic return for 1999 is inconsistent with his
                                                   (continued...)
                              - 10 -

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 notice of deficiency, respondent knew of a change

in petitioner's address and did not exercise due diligence in

ascertaining petitioner's correct address.   See Abeles v.

Commissioner, supra; Keeton v. Commissioner, supra at 382; Alta

Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974),

affd. without published opinion 538 F.2d 334 (9th Cir. 1976).

     There is nothing in the record to suggest that petitioner

gave respondent clear and concise notice of any change of

address.   Nor is there anything in the record to suggest that

respondent knew about such change of address.   Indeed, the record

indicates that during the examination phase of this case,

respondent communicated with petitioner at the Stilwell address.

     In view of the foregoing, we hold that the notice of

deficiency was valid because it was sent to petitioner at his

last known address.   Accordingly, because petitioner did not file


     6
      (...continued)
concern, expressed throughout this case, about the status of his
refund for that year. Petitioner has not suggested, much less
demonstrated, that he filed some other return for 1999 claiming a
refund for that year. However, assuming arguendo that petitioner
did not authorize the filing of an electronic return for 1999,
the fact remains that petitioner’s 1998 return lists the Stilwell
address, which would still constitute petitioner’s last known
address. See Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988);
sec. 301.6212-2, Proced. & Admin. Regs.
                              - 11 -

his petition within the time prescribed by section 6213(a) or

section 7502, we lack jurisdiction to redetermine the deficiency

for 1999, and we must grant respondent's motion to dismiss for

lack of jurisdiction as to that year.7

     B.   Taxable Year 2000

     Petitioner admits that he “has never received any notice of

deficiency” for 2000, and respondent adamantly asserts that no

notice of deficiency or other jurisdictionally-relevant notice

has been issued to petitioner for that taxable year.   There is

nothing in the record to belie respondent’s assertion.

     In the absence of a valid notice, this Court lacks

jurisdiction.   Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142 (1988).   Thus,

in the present case, we lack jurisdiction over the taxable year

2000, and we must therefore grant respondent's motion to dismiss

for lack of jurisdiction as to that year.




     7
        Although petitioner cannot pursue his case for 1999 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). Finally, we note that the granting of
respondent’s motion to dismiss for lack of jurisdiction will in
no way preclude the parties from administratively resolving the
substantive issues for 1999, an approach that respondent has
offered to pursue.
                             - 12 -

Conclusion

   To give effect to the foregoing,



                                      An order granting respondent’s

                            motion and dismissing this case for

                            lack of jurisdiction will be entered.
