1 All section references are to the Internal Revenue Code

in effect for the years in issue, unless otherwise indicated. 

(continued...)

T.C. Memo. 1997-224

UNITED STATES TAX COURT

 JESSIE J. CHAMBERS, Petitioner v. 

 COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 17806-96. Filed May 12, 1997.

 Jessie J. Chambers, pro se.

Jordan S. Musen and William A. Blagg, 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
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1(...continued)

All Rule references are to the Tax Court Rules of Practice and

Procedure.

 

2 There is a discrepancy in the record concerning the exact

mailing date of the notice of deficiency for 1990. Although the

notice of deficiency is dated Feb. 16, 1993, respondent submitted

a U.S. Postal Service Form 3877 which indicates that the notice

of deficiency was mailed on Feb. 11, 1993. Considering all of

(continued...)

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 filed December 9, 1996, and supplemented on April

14, 1997. Although respondent contends that this case must be

dismissed on the ground that petitioner failed to file his

petition within the time prescribed in section 6213(a),

petitioner argues that respondent failed to mail the notice of

deficiency to his last known address. Although it is evident

that we lack jurisdiction over the petition filed herein, we must

decide the proper ground for dismissal.

Background

 On February 16, 1993, respondent mailed a notice of

deficiency to petitioner determining a deficiency of $7,166 in

his Federal income tax for 1990, and additions to tax in the

amounts of $1,619.25 and $421.06 pursuant to sections 6651(a) and

6654, respectively.2 The notice of deficiency was mailed to
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2(...continued)

the facts and circumstances, we conclude that the notice of

deficiency for 1990 was mailed on Feb. 16, 1993.

petitioner at 165 N. Fayette Dr., Fayetteville, Georgia 30214

(the Fayetteville address). The Fayetteville address is the

address listed on petitioner's 1987 tax return which is the last

return that petitioner filed prior to the mailing of the notice

of deficiency for 1990.

The notice of deficiency for 1990 was returned to respondent

undelivered, marked "Unclaimed", and listing a forwarding address

for petitioner of 2370 Ambassador Drive, Lithia Springs, Georgia

30057 (the Lithia Springs address)

On June 22, 1993, respondent mailed a notice of deficiency

to petitioner determining deficiencies in and additions to his

Federal income taxes for 1988 and 1989. Respondent mailed the

notice of deficiency to petitioner at the Fayetteville address. 

On September 14, 1993, petitioner filed a timely petition for

redetermination with the Court (assigned docket No. 20017-93)

respecting the notice of deficiency for 1988 and 1989, listing

his address as the Lithia Springs address.

In January 1995, petitioner met with Revenue Officer Sharon

Pittman to discuss a levy that had been placed against his bank

account for taxes allegedly due for 1990. Petitioner advised

Revenue Officer Pittman that he was residing at the Lithia
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3 At the time that the petition was filed, petitioner

resided at the Fayetteville, Georgia, address. 

Springs address and that his mailing address was P.O. Box 220,

Austell, Georgia 30001 (the Austell address).

On August 17, 1995, petitioner filed his 1994 tax return

listing the Lithia Springs address as his current address.

 On September 15, 1995, respondent mailed a notice of

deficiency to petitioner determining deficiencies in, additions

to, and accuracy-related penalties with respect to his Federal

income taxes for 1991, 1992, and 1993 as follows:

 Additions to Tax Accuracy-Related Penalty

Year Deficiency Sec. 6651(a) Sec. 6654 Sec. 6662

1991 $ 6,966 $1,082 $232 ---

1992 8,783 --- --- $1,757

1993 10,950 2,738 459 ---

Duplicate originals of the notice of deficiency were mailed to

petitioner at the Lithia Springs address and the Austell address.

 On August 14, 1996, petitioner filed an imperfect petition

for redetermination with the Court contesting respondent's

determinations for the taxable years 1990, 1991, 1992, and 1993.

The petition was delivered to the Court in a U.S. Postal Service

Express Mail envelope bearing a U.S. Postal Service postmark date

of August 13, 1996.3 Petitioner subsequently filed a proper

amended petition.

 As indicated, respondent filed a Motion to Dismiss For Lack

of Jurisdiction alleging that petitioner failed to file his
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petition within the 90-day period prescribed in section 6213(a). 

Petitioner filed an objection to respondent's motion to dismiss

alleging that the deficiency notices were not mailed to his

correct address. Respondent filed a response to petitioners'

objection countering that the deficiency notices were mailed to

petitioner's last known addresses.

 A hearing was conducted at the Court's motions session in

Washington, D.C., on April 16, 1997. Counsel for respondent

appeared at the hearing and presented argument in support of the

pending motion. Although petitioner did not appear at the

hearing, he did file a written statement with the Court pursuant

to Rule 50(c). Petitioner's Rule 50(c) statement includes

allegations that, because petitioner and his wife separated and

reconciled a number of times during the period 1993 through 1995,

petitioner did not receive the notices of deficiency in question. 

In particular, petitioner asserts that the notice of deficiency

for 1990 was mailed to his wife's address after one of their

separations, while the notice of deficiency for 1991, 1992, and

1993 was mailed to petitioner's former address after he had

reconciled with his wife and moved back to the Fayetteville

address. Although petitioner does not specify the date of the

purported communication, petitioner asserts that he left a

message for Revenue Officer Pittman in 1995 advising her that he

had moved back to the Fayetteville address. Respondent states

that she has no record of any such communication.
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Discussion

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). If a notice of deficiency is mailed to the taxpayer at

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, has 90 days from the date the notice of

deficiency is mailed to file a petition in this Court for a

redetermination of the deficiency. Sec. 6213(a).

Respondent mailed the notice of deficiency for 1990 on

February 16, 1993, and the notice of deficiency for 1991, 1992,

and 1993 on September 15, 1995. The petition in this case was

postmarked August 13, 1996, and was received and filed by the

Court on August 14, 1996. Given that the petition was neither

mailed nor filed prior to the expiration of the 90-day statutory
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period for filing a timely petition with respect to either of the

notices of deficiency, it follows that we lack jurisdiction over

the petition. Secs. 6213(a) and 7502; Rule 13(a), (c); see

Normac, Inc. v. Commissioner, supra.

 The question presented is whether dismissal of this case

should be premised on petitioner's failure to file a timely

petition under section 6213(a) or on respondent's failure to

issue valid notices of deficiency under section 6212. Petitioner

contends that respondent failed to mail the notices of deficiency

to his last known address. We disagree.

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

the Internal Revenue Code or in the regulations, 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. 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 at his or her last known address is on the taxpayer. 

Yusko v. Commissioner, supra at 808.

There does not appear to be any dispute that the notice of

deficiency for 1990 was mailed to petitioner's correct address

but for his separation from his wife at the time the notice was

issued. In the absence of any evidence that petitioner notified

respondent that he was living at an address other than the

Fayetteville address at that time, we conclude that respondent
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4 Although petitioner cannot pursue his case in this Court,

he is not without a remedy. 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). 

mailed the notice of deficiency for 1990 to petitioner's last

known address and that such notice is valid under section 6212. 

We are also satisfied that the notice of deficiency for

1991, 1992, and 1993 was mailed to petitioner's last known

address. The record indicates that in January 1995, petitioner

advised Revenue Officer Pittman that he was residing at the

Lithia Springs address and that his mailing address was the

Austell address. In addition, on August 17, 1995, petitioner

filed his 1994 tax return listing the Lithia Springs address as

his current address. We are unable to find that petitioner

provided respondent with clear and concise notice that he had

moved back to the Fayetteville address prior to the mailing of

the notice of deficiency on September 15, 1995. Under the

circumstances, we conclude that the notice of deficiency for

1991, 1992, and 1993 was mailed to petitioner at his last known

address. Consequently, we shall grant respondent's motion to

dismiss for lack of jurisdiction.4

 To reflect the foregoing,

 An order will be entered

 granting respondent's Motion to

 Dismiss for Lack of Jurisdiction.