T.C. Memo. 2002-174

UNITED STATES TAX COURT

EVELYN PERKINS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1986-02. Filed July 22, 2002.

Evelyn Perkins, pro se.

Thomas C. Pliske and William A. Heard III, for respondent.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: Pending before the Court is

respondent’s Motion to Dismiss for Lack of Jurisdiction, filed

February 22, 2002. The facts necessary to the disposition of

respondent’s motion are as follows.
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1 Petitioner attached to her 1999 return a Form W-2, Wage

and Tax Statement, and a Form 1099-R, Distributions from

Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs,

Insurance Contracts, etc. Each of these two latter forms listed

petitioner’s address as “725 E. 1st St., New London, MO 63459”. 

In the context of the present case, we regard this latter address

as the equivalent of the 725 address.

2 Petitioner attached to her 2000 return a Form W-2 and a

Form 1099-R. The Form W-2 listed petitioner’s address as “725 E.

1

st St., New London, MO 63459”. The Form 1099-R listed

petitioner’s address as a box number in New London, MO 63459.

Background

On or before April 15, 2000, petitioner filed Form 1040A,

U.S. Individual Income Tax Return, for the taxable year 1999. On

this return, petitioner listed her address as “725 First Street,

New London, MO 63459" (the 725 address).1

On or before April 15, 2001, petitioner filed Form 1040A for

the taxable year 2000. On this return, petitioner again listed

her address as the 725 address.2

On September 19, 2001, respondent sent petitioner a notice

of deficiency. In the notice, respondent determined a deficiency

in petitioner’s Federal income tax for the taxable year 1999 in

the amount of $3,831. Respondent sent the notice by certified

mail addressed to petitioner at the 725 address. 

On January 22, 2002, the Court received and filed

petitioner’s petition for redetermination in respect of the

aforementioned notice of deficiency. The petition was received

in an envelope postmarked December 19, 2001, from Woodridge,
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3 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.

Illinois. Both the petition and the envelope in which it was

mailed list petitioner’s address as “712 First Street, New

London, MO 63459” (the 712 address). Attached to the petition is

a copy of the September 19, 2001, notice of deficiency bearing

the 725 address.

As stated above, respondent filed a Motion to Dismiss for

Lack of Jurisdiction. In the motion, respondent asserts that

this case should be dismissed for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by section 6213(a) or section 7502.3

On March 26, 2002, petitioner filed a Notice of Objection to

respondent’s motion. In her objection, petitioner asserts, inter

alia, that the 725 address “does not exist.” Also in her

objection, petitioner lists her address as the 712 address;

however, in the “Certificate of Service” attached to her

objection, petitioner lists her address as the 725 address.

Pursuant to notice, respondent’s motion to dismiss was

called for hearing at the Motions Session in Washington, D.C. on

April 24, 2002. At that time, there was no appearance by or on

behalf of petitioner, nor did petitioner file a statement

pursuant to Rule 50(c), the provisions of which were referred to

in the Court’s Order calendaring respondent’s motion for hearing. 
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Respondent’s counsel appeared and presented argument in support

of the pending motion. In particular, counsel introduced into

the record copies of petitioner’s above-described income tax

returns for 1999 and 2000.

Following the hearing, the Court issued an Order stating

that it would defer ruling on respondent’s motion to dismiss for 

60 days in order to afford the parties an opportunity to try to

resolve administratively the substantive issues related to

petitioner’s tax liability for the taxable year in issue. The

Court also directed that a report be filed by June 24, 2002,

advising of the then present status of this matter.

On June 24, 2002, respondent filed a Status Report. In the

report, respondent stated that a letter had been sent to

petitioner requesting information that might have permitted the

parties to resolve administratively the substantive issues in

this case; respondent also stated that no response had been

received from petitioner, nor had the letter been returned to

respondent by the Postal Service.

Discussion

This Court's jurisdiction to redetermine a deficiency

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

timely filed petition. See 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
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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. See

sec. 6212(b)(1). If the notice is mailed to the taxpayer at the

taxpayer's last known address, actual receipt of the notice by

the taxpayer is, for present purposes, immaterial. See 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, 81 T.C. 42, 52 (1983); cf. sec.

6330(c)(2)(B). In turn, the taxpayer has 90 days (or 150 days if

the notice is addressed to a person outside the United States)

from the date that the notice is mailed to file a petition for

redetermination of the deficiency. See sec. 6213(a); see also

sec. 7502 (treating timely mailing as timely filing).

It is clear in the present case that the notice of

deficiency was mailed to petitioner on September 19, 2001. 

Ninety days thereafter was Tuesday, December 18, 2001. However,

the petition was not filed until January 22, 2002, and the

envelope in which it was mailed to the Court is postmarked

December 19, 2001, the 91st day after the notice of deficiency

was mailed. Therefore, it is clear that the petition was not

filed (or mailed) within the requisite 90-day period. 

Accordingly, it follows that we must dismiss this case for lack
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of jurisdiction. 

However, in view of petitioner's contention that the notice

of deficiency was mailed to an address that “does not exist”,

which contention we regard as tantamount to a contention that the

notice of deficiency was not mailed to petitioner’s last known

address, the issue for decision is whether the dismissal of this

case should be based on petitioner's failure to file a timely

petition under section 6213(a) or whether dismissal should be

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

deficiency under section 6212. If jurisdiction is lacking

because of respondent's failure to issue a valid notice of

deficiency, we shall dismiss on that ground, rather than for lack

of a timely filed petition. Pietanza v. Commissioner, 92 T.C.

729, 735-736 (1989), affd. without published opinion 935 F.2d

1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430, 435

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

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

the Internal Revenue Code, we have held that absent clear and

concise notice of a change of address, a taxpayer's last known

address is the address shown on the taxpayer’s return that was

most recently filed at the time that the notice was issued. King

v. Commissioner, supra at 681; Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988); see sec. 301.6212-2, Proced. & Admin. Regs. 

In deciding whether the Commissioner mailed a notice to a
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4 The fact that petitioner’s residence may have been

renumbered for purposes of the “911” emergency system does not,

in and of itself, constitute notice to respondent that

petitioner’s address may have changed. This is particularly true

(continued...)

taxpayer at the taxpayer's last known address, the relevant

inquiry “pertains to * * * [the Commissioner’s] knowledge rather

than to what may in fact be the taxpayer's most current address.” 

Frieling v. Commissioner, supra at 49.

Respondent mailed the notice of deficiency to the address

listed on petitioner's 2000 return--the last return filed by

petitioner prior to the mailing of the notice on September 19,

2001. Consequently, the notice of deficiency was mailed to

petitioner at her last known address unless petitioner can

demonstrate: (1) She provided respondent with clear and concise

notice of a change of address; or (2) prior to the mailing of the

notice of deficiency, respondent knew of a change in petitioner's

address and did not exercise due diligence in ascertaining

petitioner's correct address. See Abeles v. Commissioner, supra;

Keeton v. Commissioner, supra at 382; Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. 367, 374 (1974), affd. without published

opinion 538 F.2d 334 (9th Cir. 1976).

There is nothing in the record to suggest that petitioner

gave respondent clear and concise notice of any change of

address, nor is there anything in the record to suggest that

respondent knew about any change of address.4 Finally, we
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4(...continued)

given the fact that the notice of deficiency was, in fact,

delivered to petitioner, rather than returned to respondent by

the Postal Service. Cf. sec. 301.6212-2(b), Proced. & Admin.

Regs.

5 Petitioner does not allege that she suffered any

prejudicial delay in the receipt of the notice of deficiency.

6 Although petitioner cannot pursue her case in this Court,

she is not without a judicial remedy. Specifically, petitioner

may pay the tax, file a claim for refund with the Internal

Revenue Service, and, if her claim is denied, sue for a refund in

the appropriate Federal District Court or the U.S. Court of

Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142

(1970).

observe that petitioner actually received the notice of

deficiency, as demonstrated by the fact that she attached a copy

thereof to her petition.5 

Conclusion

 In view of the foregoing, we hold that the notice of

deficiency was valid because it was sent to petitioner at her

last known address. Accordingly, because petitioner did not file

her petition within the time prescribed by section 6213(a) or

section 7502, we lack jurisdiction to redetermine petitioner’s

tax liability for 1999, and we are left with no alternative but

to grant respondent's motion to dismiss for lack of

jurisdiction.6
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To give effect to the foregoing, 

 An order granting respondent’s

 motion and dismissing this case for

 lack of jurisdiction will be entered.