                       T.C. Memo. 2000-89



                     UNITED STATES TAX COURT



          JEFFREY CHRISTOPHER SPRANKLE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9910-99.                  Filed March 14, 2000.



     Jeffrey C. Sprankle, pro se.

     Yvonne M. Peters, for respondent.



                       MEMORANDUM OPINION

     PAJAK, Special Trial Judge: Respondent determined a

deficiency in petitioner's Federal income tax in the amount of

$790 for the taxable year 1996.    Unless otherwise indicated,

section references are to the Internal Revenue Code in effect for

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     This case comes before the Court on respondent's motion to
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dismiss for lack of jurisdiction, filed pursuant to Rule 53.     The

sole issue for decision is whether the notice of deficiency for

1996 was mailed to petitioner's "last known address" within the

meaning of section 6212(b).

     At the time the petition was filed with the Court,

petitioner resided in Chula Vista, California.    Petitioner filed

an objection to respondent's motion to dismiss, and respondent

filed a response to petitioner's objection.    A hearing was held

in San Diego, California, on respondent's motion.

     On petitioner's 1997 Federal income tax return, which was

signed by him on February 13, 1998, petitioner listed his address

as 808 Union Street (Apt. No.) #46925-198, San Diego, California,

92101 (Union Street address).    This is the address of the

Metropolitan Correctional Center, a Federal prison in which

petitioner was incarcerated for 6 months.    The number 46925-198

was his identification number in the prison and was listed under

“Apt. No.” on the 1997 return.    Nowhere on the return was it

stated that petitioner was incarcerated or that the address was

that of a prison.   Attached to the 1997 return were two Forms W-

2, Wage and Tax Statement, with different addresses listed for

petitioner.

     Around May 14, 1998, petitioner was moved to a halfway house

located somewhere between Market Street and 14th Street in San

Diego.   He spent 2 months at the halfway house and was then
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released around July 14, 1998.    Upon his release, petitioner

moved to 1536 Avenida Rosa, Chula Vista, California, 91911

(Avenida Rosa address).

     In July 1998, respondent sent petitioner a 30-day letter

advising him of proposed adjustments to his 1996 Federal income

taxes.   This letter was mailed to the Union Street address listed

on petitioner's 1997 return.

     In response to this letter, petitioner returned to

respondent a preprinted form, which came with the 30-day letter,

and a two-page handwritten letter.       On the preprinted form,

petitioner's Union Street address was typed as petitioner's

address.   Petitioner did not make any corrections to the address

on this form, but he did list his phone number and his hours of

availability.   Petitioner's handwritten letter did not include an

address or any reference to an address.       On the front of the

envelope which petitioner mailed back to respondent, the Avenida

Rosa address was written in as the return address.       On the back

of this envelope is a preprinted form which states:       "COMPLETE

AND RETURN THIS PORTION IF YOUR ADDRESS HAS CHANGED".       There are

spaces for the taxpayer's name, the taxpayer's identification

number, and the new address.   Petitioner left this form blank.

The correspondence was received by respondent on July 31, 1998.

     On September 9, 1998, respondent sent the notice of

deficiency by certified mail to petitioner at the Union Street
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address.    The notice was received at that address and returned to

respondent by the Postal Service stamped "Attempted Not Known".

Handwriting on the envelope states:     "RTS [return to sender] NOT

HERE RELEASED".   No forwarding address was stated on the

envelope.   Petitioner received a copy of the notice of deficiency

on April 29, 1999.

     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).    Pursuant to section 6213(a), the taxpayer 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 with the Court for a redetermination

of the deficiency.

     The notice of deficiency was mailed on September 9, 1998,

and the 90-day period ended on December 8, 1998, which was not a

legal holiday in the District of Columbia.    Petitioner mailed his

petition on May 22, 1999, and it was filed with this Court on May

26, 1999.

     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.    A notice of deficiency

is sufficient if it is mailed to the taxpayer at the taxpayer's

"last known address".   Sec. 6212(b)(1).   If a notice of
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deficiency is mailed to a 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).

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

the Code or 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 different address.     Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988).   A taxpayer is obliged to provide respondent

with clear and concise notice of a change of address, but

respondent must exercise reasonable care and due diligence in

ascertaining the taxpayer's correct address.     King v.

Commissioner, supra at 679.     Once respondent has mailed the

notice of deficiency to the taxpayer's last known address,

respondent's reasonable care and due diligence obligation has

been satisfied.   Id. at 681.    The taxpayer bears the burden of

proving that the notice was not sent to the taxpayer's last known

address.   Yusko v. Commissioner, 89 T.C. 806, 808 (1987).       This

Court has previously held that a "return address placed on the

outside of an envelope, without more, does not constitute clear

and concise notification of a new, permanent address for purposes

of section 6212(b)(1)".   James v. Commissioner, T.C. Memo. 1990-

128; see also King v. Commissioner, supra at 681.

     In this case, petitioner wrote his new address only on the
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outside of the envelope in the upper left corner.       He did not do

anything that would constitute clear and concise notification

that he had moved to a new, permanent address. We cannot find

that petitioner provided respondent with clear and concise notice

of his address change.   Absent the proper notice, respondent

correctly relied upon the address used on petitioner's most

recently filed tax return.   We find that the notice of deficiency

was valid when mailed to the Union Street address on September 9,

1998.

     We hold that petitioner did not file his petition for

redetermination with this Court within the time prescribed by

sections 6213(a) and 7502.   Therefore, we lack jurisdiction to

redetermine the 1996 tax liability of petitioner.       We grant

respondent's motion to dismiss for lack of jurisdiction.

     Petitioner is not without a judicial remedy.       Petitioner may

pay the tax and file a claim for refund with the Internal Revenue

Service.   If the claim for refund is denied, then petitioner may

pursue his case in the appropriate Federal District Court or the

U.S. Court of Federal Claims.     McCormick v. Commissioner, 55 T.C.

138, 142 (1970).

     To reflect the foregoing,

                                         An order granting respondent's

                                 motion to dismiss for lack of

                                 jurisdiction will be entered.
