                        T.C. Memo. 1998-256



                      UNITED STATES TAX COURT



            BARRY AND DEBRA BULAKITES, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1269-98.                        Filed July 13, 1998.



     Carolyn J. Jackson, for petitioners.

     Robert E. Marum and Richard Fultz, for respondent.



                        MEMORANDUM OPINION



     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.1     The Court agrees with

     1
        All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
                                                   (continued...)
                                 - 2 -


and adopts the opinion of the Special Trial Judge, which is set

forth below.

                OPINION OF THE SPECIAL TRIAL JUDGE

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

on respondent's Motion To Dismiss For Lack Of Jurisdiction.

Although respondent contends that this case should be dismissed

on the ground that Barry and Debra Bulakites (petitioners) failed

to file their petition within the time prescribed by sections

6213(a) and 7502, petitioners argue that dismissal should be

based on respondent's failure to issue a valid notice of

deficiency under section 6212.    Because there is no dispute that

we lack jurisdiction over the petition filed herein, we must

resolve the parties' dispute regarding the proper ground for

dismissal.   See Pietanza v. Commissioner, 92 T.C. 729, 735-736

(1989), affd. without published opinion 935 F.2d 1282 (3d Cir.

1991).

Background

     On November 13, 1996, petitioners filed joint Federal

income tax returns for the taxable years 1994 and 1995.    On each

of those returns, petitioners listed their address as 53

Christopher Lane, Guilford, Connecticut 06437 (the Guilford

address).


     1
      (...continued)
Practice and Procedure.
                               - 3 -


     On April 14, 1997, respondent mailed a 30-day letter to

petitioners at the Guilford address.   In the 30-day letter,

respondent notified petitioners of proposed changes to their tax

liability for 1994.

     On May 16, 1997, petitioners' accountant, Edward E. Pratesi

(Mr. Pratesi), wrote a letter to respondent's agent, apparently

in response to the 30-day letter.   Mr. Pratesi's letter stated

as follows:

     Because our client Barry Bulakites * * * has relocated
     to Michigan, the enclosed letter was not received
     until recently.

     In accordance with my client's wishes, we request an
     appeal of the tax and related penalties. The reason
     for the appeal is that certain documentation
     supporting a disallowed deduction must be located upon
     Mr. Bulakites' return to Connecticut.

Mr. Pratesi's letter made no mention of Mr. Bulakites' address

in Michigan.

     In the interim, on May 14, 1997, petitioners executed a

Form 2848 (Power of Attorney and Declaration of Representative)

appointing Mr. Pratesi as their attorney-in-fact regarding their

Federal income tax liabilities for the taxable years 1994, 1995,

and 1996.   Petitioners listed the Guilford address as their

address on the Form 2848.

     Line 7 of the Form 2848 provides in pertinent part as

follows:

     Notices and communications. Original notices and
     other written communications will be sent to you and a
                                - 4 -


       copy to the first representative listed on line 2
       unless you check one or more of the boxes below.

Although the first of three boxes referred to in line 7 provided

an election under which all original notices would be sent to

petitioners' attorney-in-fact, petitioners did not check the

box.

       Respondent received petitioners' Form 2848 on May 21, 1997.

       On June 2, 1997, respondent's agent left a recorded

telephone message for Mr. Pratesi reminding him of the need to

respond further to the 30-day letter.    Mr. Pratesi did not

respond to the message, nor did he respond further to the 30-day

letter.

       On September 16, 1997, respondent mailed a notice of

deficiency to petitioners.    In the notice, respondent determined

a deficiency in petitioners' Federal income tax for 1994 in the

amount of $27,675, as well as an addition to tax under section

6651(a)(1) in the amount of $6,918.75 and an accuracy-related

penalty under section 6662 in the amount of $5,535.

       The notice of deficiency was mailed to petitioners at the

Guilford address; i.e., the address listed by petitioners on

their income tax returns for 1994 and 1995.2   Respondent did not

mail a copy of the notice of deficiency to Mr. Pratesi.



       2
        It appears that petitioners' income tax return for 1996
was not filed before the notice of deficiency was mailed.
                                 - 5 -


     The notice of deficiency was apparently forwarded by the

U.S. Postal Service to petitioners in Michigan.    In any event,

petitioners received the notice of deficiency no later than the

latter part of October 1997.

     On January 22, 1998, a date 128 days after the notice of

deficiency was mailed, the Court received and filed a petition

for redetermination contesting respondent's deficiency

determination.3   The petition arrived at the Court in an

envelope bearing a U.S. Postal Service postmark date of January

16, 1998, a date 122 days after the notice of deficiency was

mailed.    The petition, which is dated January 15, 1998, was

signed on petitioners' behalf by their counsel, Carolyn J.

Jackson, Esq. (Ms. Jackson).    At the time that the petition was

filed, petitioners resided in East Lansing, Michigan.

     As indicated, respondent filed a Motion To Dismiss For Lack

Of Jurisdiction on the ground that the petition was not timely

filed.    Petitioners filed an objection to respondent's motion,

to which respondent filed a response.

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

Session in Washington, D.C., on June 17, 1998.    Counsel for both

parties appeared at the hearing and presented argument with

respect to the pending motion.

     3
        The petition, consisting of a preamble, five numbered
paragraphs, and a prayer for relief, is less than three pages in
length.
                                - 6 -


Discussion

     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).    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. 6213(a); see sec. 7502(a); see also sec.

301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.

     Respondent mailed the notice of deficiency in question to

petitioners at the Guilford address on September 16, 1997.     The

petition, which arrived at the Court in an envelope postmarked

January 16, 1998, was filed by the Court on the date of receipt;

i.e., on January 22, 1998.

     Because the petition was neither mailed nor filed prior to

the expiration of the 90-day statutory period for filing a
                                - 7 -


timely petition, it follows that we lack jurisdiction.      Secs.

6213(a), 7502; Rule 13(a), (c); see Normac, Inc. v.

Commissioner, supra.    The question presented is whether

dismissal of this case should be premised on petitioners'

failure to file a timely petition under section 6213(a), or on

respondent's failure to issue a valid notice of deficiency under

section 6212.   Petitioners contend that the notice is invalid

because respondent did not use due diligence in attempting to

determine their last known address prior to mailing the notice.4

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

the Internal Revenue Code or in the regulations thereunder, we

have held that a taxpayer's last known address is the address

shown on the taxpayer's most recently filed return, absent clear

and concise notice of a change of address.5   Abeles v.

Commissioner, 91 T.C. 1019, 1035 (1988); see King v.

Commissioner, 857 F.2d 676, 681 (9th Cir. 1988), affg. 88 T.C.

1042 (1987).    The burden of proving that a notice of deficiency

was not sent to the taxpayer at the taxpayer's last known




     4
        Petitioners do not complain that respondent failed to
send a copy of the notice of deficiency to Mr. Pratesi.
     5
        It should be recalled that petitioners' income tax
returns for 1994 and 1995 were filed on Nov. 13, 1996, and that
the notice of deficiency was mailed to petitioners on Sept. 16,
1997. As previously noted, it appears that petitioners' income
tax return for 1996 was not filed before the notice of deficiency
was mailed.
                                 - 8 -


address is on the taxpayer.   Yusko v. Commissioner, 89 T.C. 806,

808 (1987).

     Petitioners do not dispute that they did not provide

respondent with clear and concise notice of a change of address.

However, petitioners contend that Mr. Pratesi's letter dated May

16, 1997, put respondent's agent on notice that Mr. Bulakites

was in the process of relocating to Michigan, and, therefore,

that respondent knew or should have known that the Guilford

address was not petitioners' correct address.

     Considering all of the facts and circumstances, including

the fact that petitioners listed the Guilford address as their

address on the Form 2848 submitted to respondent on May 21,

1997, we are not persuaded that respondent in the exercise of

reasonable diligence knew or should have known that the Guilford

address was not petitioners' correct address.    Thus we find that

the deficiency notice was mailed to their last known address.

In addition, petitioners actually received the notice of

deficiency no later than the latter part of October 1997.

     It is well settled that a notice of deficiency is not

invalid merely because it is not sent to a taxpayer at the

taxpayer's last known address.    In particular, an otherwise

erroneously addressed notice of deficiency remains valid under

section 6212(a) if it is actually received in sufficient time to

permit the taxpayer, without prejudice, to file a timely
                                - 9 -


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

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

1993-143.

     The notice of deficiency was mailed to petitioners on

September 16, 1997.   The record, as developed at the hearing,

shows that petitioners actually received the notice of

deficiency no later than the latter part of October 1997.

Consequently, petitioners had no less than 45 days in which to

file a timely petition for redetermination with the Court.   The

Court has held that receipt of a notice of deficiency with as

few as 30 days remaining in the 90-day filing period was not

prejudicial to the taxpayer.    See Bowers v. Commissioner, T.C.

Memo. 1991-609 (69 days remaining); Fileff v. Commissioner, T.C.

Memo. 1990-452 (60 days remaining); George v. Commissioner, T.C.

Memo. 1990-147 (52 days remaining); Manos v. Commissioner, T.C.

Memo. 1989-442 (at least 38 days remaining); Loftin v.

Commissioner, T.C. Memo. 1986-322 (30 days remaining).   But see

Sicker v. Commissioner, 815 F.2d 1400, 1401 (11th Cir. 1987)

(receipt of notice with 8 days remaining in the filing period is

not ample time in which to prepare a petition); Looper v.

Commissioner, 73 T.C. 690, 699 (1980) (receipt of notice with 17
                             - 10 -


days remaining in the filing period is prejudicial to the taxpayer).

     Consistent with Mulvania v. Commissioner, supra, we hold

that petitioners received the notice of deficiency with

sufficient time to file a timely petition for redetermination,

that petitioners suffered no prejudice, and that the notice of

deficiency in question is valid.   Because petitioners failed to

file their petition in a timely manner, we will grant

respondent's Motion To Dismiss For Lack Of Jurisdiction.6

     To reflect the foregoing,



                                   An order will be entered

                            granting respondent's Motion To

                            Dismiss For Lack Of Jurisdiction.




     6
        Although petitioners cannot pursue their case in this
Court, they are not without a remedy. In short, petitioners 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).
