                        T.C. Memo. 1996-170



                      UNITED STATES TAX COURT



                 BEATRICE APPIAH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17995-95.                     Filed April 3, 1996.



     William G. Davidson III, for petitioner.

     Peter Reilly and Alan R. Peregoy, 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)(4) and Rules 180, 181, and 183.1   The Court



     1
        All section references are to the Internal Revenue Code
in effect for the year in issue, unless otherwise indicated. All
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 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.

     On August 10, 1994, Beatrice Appiah (petitioner) and her

estranged husband, Francis Appiah, executed a Form 2848 (Power of

Attorney and Declaration of Representative) appointing William G.

Davidson III as their attorney in fact regarding their Federal

income tax liability for the taxable years 1989, 1990, 1991, and

1992.

     On January 10, 1995, petitioner executed a Form 8822 (Change

of Address) indicating that her address was changing from 11700

Old Columbia Pike, #708, Silver Spring, Maryland 20904 (the

Silver Spring address) to P.O. Box 17, Asankrangwa, Ghana, West

Africa (the Ghana address).2   The Ghana post office box belongs

to petitioner's parents.    Petitioner traveled to Ghana on January

11, 1995, where she stayed with her parents until she returned to

the Silver Spring address on March 30, 1995.

     On April 14, 1995, respondent mailed duplicate original

joint notices of deficiency to petitioner and her estranged



     2
        The record does not disclose the exact date when
petitioner filed her Form 8822 with the Internal Revenue Service.
                               - 3 -

husband, determining a deficiency of $9,212 in their Federal

income tax for 1989 as well as penalty under section 6662(a) in

the amount of $1,842.3   The deficiency notice was mailed to:   (1)

The Silver Spring address; and (2) the Ghana address.4   On the

same date, respondent mailed a copy of the notice of deficiency

to petitioner's counsel, William G. Davidson III, pursuant to the

above-described Power of Attorney.

     On April 18, 1995, after receiving notification from the

post office that a piece of certified mail was being held for

her, petitioner went to the post office and accepted delivery of

the notice of deficiency mailed to the Silver Spring address.

Upon receipt of the notice of deficiency, petitioner contacted

Mr. Davidson, who informed her that he had received a copy of the

notice of deficiency.

     A petition for redetermination, signed by Mr. Davidson on

petitioner's behalf, was hand delivered to the Court on September

12, 1995, and was filed by the Court the same day.5

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction.   Respondent moves for dismissal on the ground


     3
        The record shows that respondent first mailed a notice of
deficiency to petitioner for 1989 on Feb. 2, 1995. Respondent
concedes that this notice is invalid for purposes of sec.
6212(a).
     4
        We observe that, in mailing the notice of deficiency to
the Ghana address, respondent misspelled the name of the town in
Ghana as Asankrangiva as opposed to Asankrangwa.
     5
        At the time the petition was filed, petitioner resided at
the Silver Spring address.
                                - 4 -

that the petition was not filed within either the 90- or 150-day

period prescribed under section 6213(a).

     Petitioner filed an objection to respondent's motion to

dismiss.    Petitioner's primary contention is that the petition

was timely filed within the 150-day period prescribed in section

6213(a).

     This matter was called for hearing in Washington, D.C.

Counsel for both parties appeared at the hearing and presented

argument on the pending motion.    In addition, petitioner provided

testimony regarding the circumstances surrounding her receipt of

the notice of deficiency mailed to the Silver Spring address.

     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 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).    The taxpayer, in turn, has 90 days (or 150 days if the

notice is addressed to a person outside the United States) from

the date the notice of deficiency is mailed to file a petition in
                              - 5 -

this Court for a redetermination of the deficiency.   Sec.

6213(a).

     However, a notice of deficiency is not invalid merely

because it is not sent to the taxpayer's last known address.    In

particular, an otherwise erroneously addressed notice of

deficiency remains valid under section 6212(a) if actually

received in sufficient time to permit the taxpayer, without

prejudice, to file a timely petition for redetermination.    See

Mulvania v. Commissioner, 81 T.C. 65, 67-69 (1983) (erroneously

addressed notice held valid in light of actual receipt by the

taxpayer 16 days after it was mailed), affd. 769 F.2d 1376 (9th

Cir. 1985); see also Patmon & Young Professional Corp. v.

Commissioner, 55 F.3d 216, 217 (6th Cir. 1995), affg. T.C. Memo.

1993-143; Balkissoon v. Commissioner, 995 F.2d 525, 528-529 (4th

Cir. 1993), affg. T.C. Memo. 1992-322.6

     There arguably are lingering questions in this case in

regard to whether the notice of deficiency was mailed to

petitioner's correct last known address and whether petitioner is

entitled to the 90- or 150-day period under section 6213(a) to

file her petition with this Court.    Nonetheless, the record, as

developed at the hearing in this case, shows that petitioner

personally received the notice of deficiency mailed to the Silver

Spring address on April 18, 1995, 4 days after it was mailed.



     6
        Cf. Mulvania v. Commissioner, 769 F.2d 1376 (9th Cir.
1985), affg. T.C. Memo. 1984-98.
                               - 6 -

Consistent with cases such as Mulvania v. Commissioner, supra, we

hold that petitioner received the notice of deficiency with ample

time to file a timely petition for redetermination.7     Moreover,

even assuming that petitioner is entitled to the 150-day period

prescribed in section 6213(a) for filing her petition with this

Court (a matter that we need not and do not decide), the petition

in this case was hand delivered to the Court and filed on

September 12, 1995, a date that falls 151 days after the mailing

of the deficiency notice.   See Rule 25(a); McGuire v.

Commissioner, 52 T.C. 468 (1969).

     Petitioner argues that September 12, 1995, represents the

150th day rather than the 151st day.   Petitioner begins by

counting the day after the date of mailing as the first day

(April 15, 1995).   She then indicates that April 15 is the 105th

day of the year and adds 150 days to that date to get to the

255th day of the year 1995 (September 12).   Accordingly,

petitioner concludes that September 12, 1995, is the 150th day

after the mailing of the notice of deficiency.

     Petitioner's computation is not correct.    While it is

accurate to count as the first day, the day after the notice of



     7
        The Court of Appeals for the Fourth Circuit distinguished
Balkissoon v. Commissioner, 995 F.2d 525 (4th Cir. 1993), affg.
T.C. Memo. 1992-322, from Powell v. Commissioner, 958 F.2d 53, 56
(4th Cir. 1992), revg. and remanding an order of this Court. In
Powell, the Court of Appeals found that the notice of deficiency
was not delivered to or received by the taxpayers. In
Balkissoon, as in this case, the taxpayer received the notice of
deficiency in ample time to file a petition.
                                 - 7 -

deficiency is mailed (April 15, 1995), by adding 150 days from

April 15 petitioner has effectively added an additional day.

More accurately, the 150-day period is computed as follows:

     Notice of deficiency mailed on April 14, 1995

         Days Remaining                  Number of Days

     April 15 through 30                     16
     May 1 through 31                        31
     June 1 through 30                       30
     July 1 through 31                       31
     August 1 through 31                     31

     Subtotal                               139

     September 1 through 11                   11

     Total                                  150

Thus, the 150th day after the mailing of the notice of deficiency

on April 14, 1995, is September 11, 1995.

     In sum, petitioner failed to file her petition in a timely

manner, and, therefore, we will grant respondent's motion to

dismiss for lack of jurisdiction.8

     To reflect the foregoing,

                                            An order granting

                                    respondent's motion to dismiss

                                    for lack of jurisdiction will

                                    be entered.



     8
        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 a 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).
