                        T.C. Memo. 1999-34



                      UNITED STATES TAX COURT



                 MICHAEL M. DEW, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 8801-98.            Filed February 3, 1999.


     Michael M. Dew, pro se.

     Deborah Swann and Elizabeth S. Henn, for respondent.


                        MEMORANDUM OPINION


     CHABOT, 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

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, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 2 -


               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, filed

July 2, 1998, as amended August 25, 1998.   As discussed in

greater detail below, we shall grant respondent's motion to

dismiss, as amended.

Background

    On February 2, 1998, respondent mailed duplicate original

notices of deficiency to Michael M. Dew (petitioner) determining

a deficiency of $18,754 in his Federal income tax for 1993 and an

addition to tax under section 6651(a)(1) of $865.   Respondent

mailed duplicate notices to:   (1) P.O. Box 751, Easton, MD 21601

(the address appearing on petitioner's 1996 tax return filed

February 1997--the last return filed by petitioner prior to the

mailing of the notice of deficiency)2; and (2) c/o Wallace and

Company, P.O. Box 1496, Easton, Md. 21601 (the address appearing

on petitioner's 1993 tax return and the address that respondent

had used to communicate with petitioner during the examination).

     At the time that the notice of deficiency was issued,

petitioner had not filed a power of attorney designating Wallace

and Company to act as his representative.   However, petitioner

did file such a power of attorney with respondent in March 1998.

     The envelope bearing the notice of deficiency mailed to P.O.

Box 751 contains markings indicating that it may have been


     2
        Petitioner's 1997 tax return was filed in May 1998,
subsequent to the mailing of the notice of deficiency.
                                - 3 -


forwarded by the U.S. Postal Service to petitioner at 578 Fox Paw

Trail, Annapolis, MD 21401.    In any event, on March 9, 1998, the

envelope was returned to respondent undelivered and marked

"Unclaimed".    The notice of deficiency mailed in the care of

Wallace and Company was not returned to respondent.

     On May 11, 1998, a representative of Wallace and Company

filed a petition with the Court on petitioner's behalf contesting

petitioner's tax liability for 1993 and 1994.3   The first page of

the notice of deficiency attached to the petition--the notice of

deficiency for 1993 that respondent mailed to petitioner in care

of Wallace and Company--included a handwritten notation listing

the 1994 year and a deficiency of $1,969.

     The petition, which is dated April 29, 1998, arrived at the

Court in an envelope bearing a private postage meter postmark

date of April 29, 1998, and a U.S. Postal Service postmark date

of May 8, 1998.

     On May 18, 1998, after the petition in this case was filed,

respondent mailed a notice of deficiency to petitioner

determining a deficiency of $1,969 in his Federal income tax for

1994.    Respondent did not issue any notice of deficiency to

petitioner for 1994 before the petition in this case was filed.

On August 17, 1998, petitioner filed a petition with the Court,

assigned docket No. 14211-98S, contesting the notice of

deficiency for 1994.


     3
        At the time the petition was filed, it appears that
petitioner resided in Easton, Md.
                                 - 4 -


     Respondent filed a Motion to Dismiss for Lack of

Jurisdiction in this case on the ground that the petition was not

filed within the 90-day period prescribed in section 6213(a).

Petitioner filed an objection to respondent's motion to dismiss,

asserting that his petition was timely mailed to the Court on

April 29, 1998.

     Respondent subsequently filed both a response to

petitioner's objection and an amendment to respondent's motion to

dismiss.   In the response, respondent asserted that the petition

arrived at the Court in an envelope bearing a U.S. Postal Service

postmark date of May 8, 1998.    In the amendment to the motion to

dismiss, respondent alleged that the petition should be dismissed

with respect to 1994 on the ground that respondent had not issued

a notice of deficiency to petitioner for 1994 prior to the filing

of the petition in this case.    Petitioner filed a response to

respondent's response repeating the allegations made in his

objection.

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

session in Washington, D.C.   Counsel for respondent appeared at

the hearing and offered argument in support of respondent's

motion to dismiss, as amended.    Although no appearance was

entered at the hearing by or on behalf of petitioner, petitioner

did file a Rule 50(c) statement with the Court in which he

maintained that his petition was timely filed.    During the

hearing, counsel for respondent represented to the Court that

respondent did not make the handwritten notation (referring to
                                - 5 -


the 1994 taxable year) appearing on the copy of the notice of

deficiency attached to the petition.

Discussion

     This Court's jurisdiction to redetermine a deficiency

depends upon the issuance of a valid notice of deficiency and a

timely filed petition.    Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988);

Rule 13(a), (c).   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).   If a deficiency notice 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, 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).

     The record shows that respondent did not issue a notice of

deficiency to petitioner for 1994 prior to the filing of the

petition in this case.   In fact, respondent mailed a notice of

deficiency to petitioner for 1994 on May 18, 1998, and petitioner

filed a petition with the Court, assigned docket No. 14211-98S,
                                 - 6 -


on August 17, 1998.   Consequently, as to the taxable year 1994,

we shall dismiss this case for lack of jurisdiction and strike

the allegations in the petition referring to that year on the

ground that respondent had not issued a valid notice of

deficiency for 1994 to petitioner prior to the filing of the

petition in this case.

     On February 2, 1998, respondent mailed duplicate original

notices of deficiency for 1993 to petitioner at the P.O. Box 751

address (the address on petitioner's most recent return before

the mailing of the notice) and to Wallace and Company (the

address where respondent had corresponded with petitioner during

the examination).   Although the phrase "last known address" is

not defined in the Internal Revenue Code or the regulations, we

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

shown on his most recently filed return, absent clear and concise

notice of a change of address.     Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988); see King v. Commissioner, supra at 681.      The

burden of proving that a notice of deficiency was not sent to the

taxpayer's last known address is on the taxpayer.    Yusko v.

Commissioner, supra at 808.

     There is no evidence in the record that petitioner notified

respondent that he wanted correspondence sent to any address

other than those used by respondent in mailing the notice of

deficiency.   Considering all of the facts and circumstances, we

are satisfied that respondent mailed the notice of deficiency to

petitioner at his last known address.
                                - 7 -


     The only remaining question is whether the petition was

filed within the 90-day period prescribed in section 6213(a).

The 90-day period for filing a timely petition with the Court

expired on Monday, May 4, 1998.    Petitioner contends that the

petition was mailed to the Court on April 29, 1998.    Although the

petition arrived at the Court in an envelope bearing a private

postage meter postmark date of April 29, 1998, that postmark is

not controlling for purposes of determining the date of mailing

because the envelope also bore a U.S. Postal Service postmark

date of May 8, 1998.    It is well settled that a private postage

meter postmark will be disregarded when it conflicts with a

legible U.S. Postal Service postmark.    Malekzad v. Commissioner,

76 T.C. 963, 966-967 (1981); Gerl v. Commissioner, T.C. Memo.

1987-289; see sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin.

Regs.    Consistent with this rule, the date of mailing of the

petition is May 8, 1998--a date that falls beyond the 90-day

filing period prescribed in section 6213.    Because the petition

was not timely filed, we lack jurisdiction to redetermine

petitioner's tax liability for 1993, and we shall grant

respondent's motion to dismiss for lack of jurisdiction, as

amended.4


     4
        Although petitioner cannot pursue his case in this Court
for the taxable year 1993, he is not without a remedy as to that
year. 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). Further, although petitioner cannot pursue
his case in this docket (i.e., dkt. No. 8801-98) for the taxable
year 1994, he may pursue his case for that year in dkt. No.
14211-98S.
                            - 8 -


To reflect the foregoing,



                                    An order will be entered

                        granting respondent's Motion to

                        Dismiss for Lack of Jurisdiction,

                        as amended.
