                       T.C. Memo. 2000-313



                     UNITED STATES TAX COURT



            FRANK BLAZIC, Petitioner v. COMMISSIONER
                 OF INTERNAL REVENUE, Respondent



     Docket No. 14503-99.                    Filed October 3, 2000.



     John Gigounas, for petitioner.

     Daniel J. Parent, for respondent.


                       MEMORANDUM OPINION

     CARLUZZO, Special Trial Judge:    This case is before the

Court on respondent’s Motion to Dismiss for Lack of Jurisdiction,

filed December 16, 1999.    Respondent’s motion is based upon the

ground that the petition in this case was not filed within the

period prescribed by section 6213(a).1   In petitioner’s


     1
       Section references are to the Internal Revenue Code of
1986, as amended.
                               - 2 -

Opposition to Internal Revenue Service’s Motion to Dismiss, filed

February 18, 2000, petitioner objects to respondent’s motion upon

the ground that the notice of deficiency upon which this case is

based was not mailed to petitioner’s last known address as

required by section 6212.   An evidentiary hearing was conducted

on respondent’s motion in San Francisco, California, on May 9,

2000.

     The issue for decision is whether the notice of deficiency

upon which this case is based was sent to petitioner at his last

known address.

Background

     Some of the facts have been stipulated and are so found.    At

the time the petition was filed, petitioner resided in San

Rafael, California.

     In a notice of deficiency issued and sent by certified mail

on January 7, 1994 (the notice), respondent determined a

deficiency in and various additions to petitioner’s 1987 Federal

income tax.   The petition in this case was filed on September 1,

1999, which is well beyond the period for doing so prescribed in

section 6213(a).

     The notice is addressed to petitioner at 13971 School

Street, San Leandro, CA 94578 (the San Leandro address), which is

the address petitioner listed on his 1987 Federal income tax
                                 - 3 -

return, filed March 15, 1991.2    The San Leandro address is also

shown as petitioner’s address on his 1990 Federal income tax

return, filed October 18, 1991, which is the most recently filed

return before the notice was issued.

     The examination of petitioner’s 1987 return began in April

1993.    During the course of the examination, several letters were

sent to petitioner at the San Leandro address.    Although letters

sent by respondent to petitioner at another address were returned

as undeliverable during the examination,3 nothing in the record

suggests that any of the letters addressed to petitioner at the

San Leandro address were returned to the examining agent.    As

best as can be determined from the record, petitioner never



     2
       The notice was also sent to petitioner at an address in
Grass Valley, California. Petitioner had provided this address
to an employer, and that address was on a Form W-2 issued to
petitioner. However, the notice mailed to this address was
returned to respondent by the U.S. Postal Service. Respondent
agrees that the Grass Valley address was not petitioner’s last
known address.
     3
       In August 1993, the examining agent sent two letters, one
by certified mail, to petitioner at an address in Auburn,
California. Both letters were stamped as undeliverable and
returned. Apparently, the Auburn address was listed on documents
filed by, or on behalf of, petitioner in a bankruptcy proceeding
initiated in May 1990 and concluded in March 1994. The Auburn
address was used on respondent’s Proof of Claim for Internal
Revenue Taxes submitted in that bankruptcy proceeding on Dec. 23,
1991. On Dec. 7, 1993, a Notice of Intent to Enter Final Decree
and Close Chapter 11 Case was filed in the bankruptcy proceeding.
The Auburn address was listed as petitioner’s address in that
notice.
                                 - 4 -

responded to any of the examining agent’s attempts to communicate

with him.

     Respondent’s agents can obtain a taxpayer’s address by

requesting an Inquiry National On-Line Entity (INOLE) report.

The database accessed through an INOLE report is maintained by

respondent and is updated with information from various sources,

including Federal income tax returns and Forms 8822, Change of

Address.    Receipt of a Form 8822 by respondent is reflected on

an INOLE report; however, after the information contained on a

Form 8822 has been entered into the database, the form itself is

not retained.

     According to INOLE reports generated on various dates from

May 26, 1993, through May 10, 1994, including January 5, 1994,

petitioner’s address was the San Leandro address.    None of the

reports indicates the receipt of a Form 8822 from petitioner

during that period.

Discussion

     Petitioner does not contend that the petition in this case

was timely filed.    Instead, petitioner argues that the notice was

not mailed to him at his last known address.

     In general, a taxpayer’s last known address is the address

shown on the most recently filed return, absent clear and concise

notice of a change in address.    See King v. Commissioner, 857

F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Abeles
                               - 5 -

v. Commissioner, 91 T.C. 1019, 1035 (1988).   Relevant for our

purposes, a Form 8822 is one method that a taxpayer can use to

provide such notice.   See sec. 5.04(3) of Rev. Proc. 90-18, 1990-

1 C.B. 491, 494.

     At the hearing, petitioner testified that on July 7, 1993,

or shortly thereafter, he sent by regular mail a Form 8822 (the

form) to respondent changing his address from the San Leandro

address to 29261 Harpoon Way, Hayward, CA 94544 (the Hayward

address).   Petitioner claims that the form was sent prior to

respondent’s issuance of the notice, and, therefore, the Hayward

address was his last known address at the time the notice was

issued.

     We note that petitioner’s claim regarding the mailing of the

form was not made known until later in the proceedings.    The

petition does not contain any express reference to the form, nor

does it indicate what address petitioner claims to have been his

last known address on the date the notice was mailed.4    Instead,

petitioner’s first reference to the form and the Hayward address

is set forth in a declaration attached to his objection to the




     4
       In the petition, petitioner alleges that respondent was
put on notice of his change of address “through correspondence
and/or return filing before the mailing of the notice of
deficiency”. We doubt that petitioner intended the term
“correspondence” to include the form. Furthermore, the San
Leandro address is the address listed for petitioner on the most
recently filed return prior to the issuance of the notice.
                               - 6 -

motion here under consideration.   In the declaration, petitioner

stated that he mailed the form to respondent “in July or August

1993".

     According to petitioner, during the summer of 1993, he

interviewed for employment with the Internal Revenue Service, but

he could not recall the name of the woman who interviewed him.

He claims, however, she told him that to be considered for

employment:   (1) He must be in compliance with the tax laws;

(2) he would be fingerprinted and subject to a background

investigation; and (3) he needed to notify the Internal Revenue

Service of his then-current address.

     Petitioner neither claims nor established that he satisfied

either of the first two requirements listed above.5

Nevertheless, he claims that he mailed the form to respondent in

order to comply with the third requirement.   In further support

of this claim, petitioner produced a photocopy of the form at

the hearing, although he acknowledged that he did not provide

respondent’s counsel with a copy of the form until 2 weeks

before the hearing.   Under the circumstances, we are not

convinced that the form was sent to respondent during 1993 as




     5
       Petitioner did not file his 1988 return until October
1994, and he did not file his 1991 and 1992 returns until
November 1998.
                                  - 7 -

claimed by petitioner.6

     In this case, the San Leandro address is the address listed

on the return filed most recently before the issuance of the

notice.   The San Leandro address was also the address listed for

petitioner in respondent’s computerized database on dates shortly



     6
       There are other inconsistencies between petitioner’s
testimony and statements contained in documents filed prior to
the hearing. In the petition, petitioner alleges that he did not
receive the notice and “had no knowledge of the mailing of such
until several months after the purported mailing”. (Emphasis
added.) In the declaration referred to above he states that he
was “wholly unaware of any IRS audit for 1987 and any deficiency
determination until 1997/1998 when * * * [he] was contacted by
IRS Collection”. At the hearing, he testified on direct
examination as follows:

     Q.   When did you first find out that you – that the
          IRS had made a tax assessment against you?

     A.   I believe it was in ’97, or 1998 – probably ’97.

     Q.   Would you state how you discovered this fact?

     A.   The Franchise Tax Board sent a levy on my wages at
          Eckhoff Accountancy Corporation.

     Q.   And what did you do after you found out about that
          levy?

     A.   I then contacted – after speaking with the Franchise
          Tax Board, they indicated to me to contact the
          Internal Revenue Service, which I did.

                          *   *     *     *   *   *   *

     Q.   And when was the first time you discovered that
          the IRS did, in fact, send you a 90-day letter?

     A.   I believe I already answered that question. I
          think it was ’97 or ’98. Somewhere in there.
                                 - 8 -

before and several months after the notice was issued and mailed

to petitioner on January 5, 1994.    Respondent’s records do not

indicate that the form was received prior to the issuance of the

notice, and petitioner does not contend that he otherwise

provided clear and concise notice to respondent that his address

had changed from that shown on his most recently filed return.

Nothing else in the record suggests that any event occurred that

would otherwise have put respondent on notice that petitioner’s

last known address changed from the San Leandro address to the

Hayward address before the notice was issued.       The San Leandro

address is therefore petitioner’s last known address within the

meaning of section 6212, and the notice was properly mailed to

him at that address.   See Abeles v. Commissioner, 91 T.C. 1019

(1988).

     Because the petition in this case was not filed within the

period prescribed by section 6213(a), respondent’s motion to

dismiss for lack of jurisdiction will be granted upon that

ground.

     To reflect the foregoing,

                                              An appropriate order

                                         dismissing this case for lack

                                      of jurisdiction will be

                                         entered.
