                        T.C. Memo. 1995-466



                      UNITED STATES TAX COURT



            JOSEPH GREEN AND FE GREEN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18985-94.                  Filed October 2, 1995.



     Joseph Green, for petitioners.

     Steven W. Ianacone, for respondent.



                        MEMORANDUM OPINION

     DAWSON, Judge:   This case was assigned to Chief Special

Trial Judge Peter J. Panuthos, pursuant to the provisions of

section 7443(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.

     1
          Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable year in
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

                 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.

  The facts pertinent to the disposition of this matter are

summarized below.

 Background

       Respondent determined deficiencies in petitioners' Federal

income taxes, an addition to tax, and a penalty as follows:

                              Addition to Tax              Penalty
Year         Deficiency          Sec. 6661              Sec. 6662(a)

1988         $11,846.82          $2,961.71                ---

1990          10,076.82             ---                $2,015.36

       Duplicate notices of deficiency dated July 8, 1994, were

sent to Fe Green (petitioner) and Joseph Green at 1503 Hastings

Mill Road, Pittsburgh, Pennsylvania, and to P.O. Box 1136, Cherry

Hill, New Jersey.    United States Postal Service Form 3877 (Form

3877) reflects that the notices of deficiency were mailed on July

8, 1994.    On June 24, 1993, approximately one year prior to the

mailing of the notices of deficiency, petitioner notified the

Internal Revenue Service Appeals Office in Newark, New Jersey

(Appeals), by letter, of Joseph Green's new address in Lyndhurst,

New Jersey.    No notice of deficiency was sent to Joseph Green's

Lyndhurst, New Jersey, address.

       Petitioners filed a petition seeking a redetermination of

their tax liability for 1988 and 1990.    At the time of filing the

petition herein, petitioner resided in Pittsburgh, Pennsylvania,
                                 - 3 -

and Joseph Green resided in Lyndhurst, New Jersey.     The date

October 7, 1994, is reflected on the petition next to the

signature of each petitioner.     The envelope in which the petition

was mailed is postmarked October 9, 1994.     The envelope is a

"Priority Mail U.S. Postal Service" envelope.     The petition was

received and date stamped by the Court on October 13, 1994.       The

90th day from July 8, 1994, was Thursday, October 6, 1994 (which

was not a legal holiday in the District of Columbia).

        In her motion to dismiss, respondent asserts that because

the notice of deficiency was mailed on July 8, 1994, the filing

of the petition on October 13, 1994, is untimely.     Respondent

further argues that even considering the U.S. Postal Service

postmark reflected on the envelope in which the petition was

contained (October 9, 1994), the petition is nevertheless

untimely.     At the hearing held on this matter, respondent

conceded that the notice of deficiency mailed on July 8, 1994,

with respect to Joseph Green is invalid, since it was not sent to

his last known address.     Petitioner asserts that the envelope

containing the notice of deficiency is postmarked July 12, 1994,

and, therefore, her petition, mailed October 9, 1994, was timely

filed.     No evidence (either a postmarked envelope, testimony, or

an affidavit) were offered to support petitioner's allegations.2


    2
      Petitioner did not appear at the hearing on respondent's
Motion to Dismiss. By order dated June 12, 1995, petitioner was
given an opportunity to submit a report on or before July 12,
1995, pertaining to the allegation that the notice of deficiency
was mailed sometime after July 8, 1994. The order, sent by
certified mail, was returned to the Court on Aug. 18, 1995,
                                                      (continued...)
                                  - 4 -

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); Normac, Inc. v. Commissioner, 90 T.C. 142,

147 (1988).      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 notice of

deficiency 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); Yusko

v. Commissioner, 89 T.C. 806, 810 (1987); Frieling v.

Commissioner, supra at 52.      The taxpayer, in turn, has 90 days

from the date the notice of deficiency was mailed to file a

petition in this Court for a redetermination of the deficiency.

Sec. 6213(a).

     "In the absence of contrary evidence, Form 3877 is proof of

mailing of the notice of deficiency."      Carlyle v. Commissioner,

T.C. Memo. 1993-176 (citing United States v. Zolla, 724 F.2d.

808, 810 (9th Cir. 1984)); see also Cataldo v. Commissioner, 60

T.C. 522, 524 (1973), affd. per curiam 499 F.2d 550 (2d Cir.



(...continued)
unclaimed by petitioner.
                                 - 5 -

1974); Massie v. Commissioner, T.C. Memo. 1995-173.     The notice

of deficiency was mailed on July 8, 1994, as reflected on Form

3877.     The statutory 90-day period for timely filing a petition

with this Court expired on October 6, 1994.

        As indicated above, this Court does not have jurisdiction to

redetermine the deficiency unless petitioner can demonstrate that

the petition was timely filed.     Petitioner has not produced any

evidence which would indicate another date of the mailing of the

notice of deficiency.     Accordingly, the petition was not filed

within the 90-day period pursuant to section 6213.     Respondent's

motion to dismiss on the basis of petitioner's failure to timely

petition this Court is granted.3

        We have found that the notice of deficiency was mailed on

July 8, 1994.     Respondent has indicated that she concedes that

the notice of deficiency was not issued to the last known address

of Joseph Green.     Accordingly, this matter will be dismissed for

lack of jurisdiction as to Joseph Green on the basis that no

valid notice of deficiency was issued to petitioner Joseph Green

at his last known address.4


    3
      Although petitioner cannot pursue her case in this Court,
she is not without a remedy. In short, petitioner 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 United States Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
    4
      It is well established that this Court has jurisdiction
to determine whether we have jurisdiction over a particular case.
Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978).
However, since we have determined that we do not have
jurisdiction, we cannot consider other arguments made by
                                                      (continued...)
                              - 6 -



                                      An order of dismissal will

                                 be entered.




(...continued)
petitioners relating to respondent's alleged violation of
administrative procedures and policies.
