                          T.C. Memo. 1998-142



                        UNITED STATES TAX COURT



                 RICHARD L. PICKERING, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent


        Docket No. 19487-97.                     Filed April 16, 1998.


        Richard L. Pickering, pro se.

        Richard Fultz, for respondent.


                          MEMORANDUM OPINION


        ARMEN, Special Trial Judge:     This case was assigned pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1

        This case is before the Court on respondent's Motion to

Dismiss for Lack of Jurisdiction, filed November 25, 1997.       There

        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.
                                - 2 -


is no dispute that the petition was not filed within the 90-day

period prescribed by section 6213(a).   The question presented is

whether the notice of deficiency is valid notwithstanding the

fact that respondent mailed the notice to an address that

included an incorrect ZIP code.

Background

     On July 7, 1995, respondent mailed a notice of deficiency to

petitioner by certified mail.   In the notice, respondent

determined a deficiency in petitioner's Federal income tax and an

accuracy-related penalty under section 6662(a) for the taxable

year 1992 in the amounts of $2,314 and $463, respectively.

     The notice of deficiency was addressed to petitioner at P.O.

Box 54, Wrightwood, California 92393-0054.   The correct ZIP code

for Wrightwood, California is 92397.    The incorrect ZIP code that

respondent used in mailing the notice of deficiency is for

Victorville, California.

     On August 4, 1995, the envelope bearing the notice of

deficiency was returned to respondent undelivered and marked

"unclaimed".   The envelope was not marked "address unknown",

"insufficient address", or "no such street or number".   The

envelope included markings indicating that notices of certified

mail U.S. Postal Service Form 3489 (Form 3849) were delivered to

P.O. Box 54 on July 11 and 19, 1995.
                                 - 3 -


     Petitioner filed a petition for redetermination with the

Court on September 23, 1997.2    The petition arrived at the Court

in an envelope bearing a U.S. Postal Service postmark of

September 16, 1997.

     As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction on the ground that the petition was not timely

filed.   Petitioner filed a response to respondent's motion in

which he stated that he had not become aware of the notice of

deficiency until February 5, 1996, that he has cooperated with

respondent since that time, and that he filed his petition with

the Court after exhausting all administrative remedies.

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

session in Washington, D.C., on January 21, 1998.    Counsel for

respondent appeared at the hearing and presented argument in

support of the pending motion.    During the hearing, the Court

suggested that respondent attempt to obtain from the U.S. Postal

Service any records pertaining to the attempted delivery of the

notice of deficiency and a statement from the U.S. Postal Service

concerning the procedures that are followed when an item of mail

contains an incorrect ZIP code.

     This matter was called for a second hearing at the Court's

motions session in Washington, D.C., on March 25, 1998.    Counsel


     2
        At the time that the petition was filed, petitioner
resided in Wrightwood, California.
                                - 4 -


for respondent appeared at the hearing and submitted to the Court

a statement by Michelle Marks, the acting Postmaster of the

Wrightwood, California Post Office.     Ms. Marks' statement

indicates that the records concerning the attempted delivery of

the notice of deficiency in question were destroyed in the normal

course of business in July 1997, 2 years after the attempted

delivery.    Ms. Marks' statement further indicates that the

incorrect ZIP code used in the address on the notice of

deficiency would not have affected the proper delivery of the

item to petitioner at the Wrightwood Post Office.

     Although petitioner did not appear at either of the hearings

described above, he did file a supplemental response with the

Court on March 25, 1998, repeating without elaboration his prior

assertion that the notice of deficiency was not mailed to his

correct address and that he did not receive the notice.

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
                                 - 5 -


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, generally has 90 days 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).

     It is evident from the undisputed facts in this case that

the Court lacks jurisdiction.    In particular, there is no dispute

that the petition was not filed within the 90-day period

prescribed by section 6213(a).    However, in view of the fact that

respondent used an incorrect ZIP code in mailing the notice of

deficiency, the issue that remains concerns the validity of the

notice.   If we were to conclude that the notice of deficiency is

invalid, then we would dismiss this case on that basis, rather

than for lack of a timely filed petition.    See Keeton v.

Commissioner, 74 T.C. 377, 379-380 (1980).

     The Court has long held that an inconsequential error in the

address used in mailing a notice of deficiency does not render

the notice invalid.    See Frieling v. Commissioner, supra
                               - 6 -


(misaddressed notice of deficiency valid where taxpayers filed a

timely petition).   An error in the address used in mailing a

notice of deficiency is inconsequential where the error is so

minor that it would not prevent delivery of the notice.   See

McMullen v. Commissioner, T.C. Memo. 1989-455; Kohilakis v.

Commissioner, T.C. Memo. 1989-366.

     In Watkins v. Commissioner, T.C. Memo. 1992-6, the Court

sustained the validity of a notice of deficiency mailed to an

address that included an incorrect ZIP code.   The Court reasoned

as follows:

          According to the [United States Postal Service
     Domestic Mail Manual], the address may include the name
     of the recipient, the rural route and box number, the
     city, and State. It is recommended that ZIP code be
     used. However, the ZIP code number is not a
     requirement for proper delivery, but is for the
     convenience of the Postal Service and is helpful to
     ensure prompt delivery. In our view, the typing of the
     incorrect 5-digit ZIP code on the notice and mailing
     envelope is a de minimis error not fatal to a notice of
     deficiency. * * *

Unlike the present case, the record in Watkins included the

testimony of the rural letter carrier that the incorrect ZIP code

did not cause confusion in the attempted delivery of the notice.

The letter carrier testified that she left two notices of

certified mail (Form 3849) in the taxpayers' mailbox in an effort

to deliver the notice of deficiency.

     Nevertheless, the principle that an incorrect ZIP code

constitutes an inconsequential error with respect to the mailing
                                - 7 -


of a notice of deficiency has been applied in the absence of

evidence of actual delivery of the notice.    See, e.g., Boothe v.

Commissioner, T.C. Memo. 1986-361; see also Armstrong v.

Commissioner, T.C. Memo. 1992-328, affd. 15 F.3d 970 (10th Cir.

1994); Greenstein v. Commissioner, T.C. Memo. 1990-405; Zee v.

Commissioner, T.C. Memo. 1987-83; cf. Price v. Commissioner, 76

T.C. 389, 392 (1981).

     As was the case in Boothe, we focus on the fact that, the

incorrect ZIP code aside, the notice of deficiency was properly

addressed to petitioner using his correct name, post office box

number, city, and State.    In addition, the record includes a

statement from the acting Postmaster in Wrightwood, California,

that the incorrect ZIP code would not have affected the proper

delivery of the notice of deficiency.    Petitioner has offered no

evidence to the contrary.    Further, we find it significant that

the envelope bearing the notice of deficiency was returned to

respondent marked "unclaimed", as opposed to "address unknown",

"insufficient address", or "no such street or number".3

     Considering all of the circumstances, we are satisfied that

the use of an incorrect ZIP code in the mailing of the notice of

deficiency in this case constitutes an inconsequential error that

     3
        We also note that the current Domestic Mail Manual (DMM)
of the U.S. Postal Service continues to state that a ZIP code is
not a required element of a delivery address for every piece of
mail deposited into the postal system. DMM, sec. A010.12, Issue
53 (Jan. 1, 1998).
                                 - 8 -


did not adversely affect the proper delivery of the notice of

deficiency.   We can only conclude that petitioner failed to

receive the notice of deficiency by virtue of his own inaction.

Accordingly, we shall grant respondent's motion to dismiss for

lack of jurisdiction on the ground that the petition was not

timely filed.4




     To reflect the foregoing,


                                         An order of dismissal

                                 will be entered granting

                                 respondent's Motion to Dismiss

                                 for Lack of Jurisdiction.




     4
        Although petitioner cannot pursue his case in this Court,
he 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 U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
