1 All section references are to the Internal Revenue Code in

(continued...)

T.C. Memo. 1998-139

UNITED STATES TAX COURT

DAVID RICHARDSON, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 12718-97. Filed April 14, 1998.

David Richardson, pro se.

Alan R. Peregoy, for respondent.

MEMORANDUM OPINION

GERBER, Judge: This case is before the Court on

petitioner's motion to dismiss for lack of jurisdiction, filed

March 10, 1998. Petitioner contends that this case should be

dismissed because the notice of deficiency was not sent by

certified or registered mail pursuant to section 6212(a).1
- 2 -

1(...continued)

effect for the years at issue. 

Respondent contends that the notice was sent by certified mail

and that, even if it were not, the notice is valid because

petitioner actually received the notice and timely filed a

petition.

Background

At the time the petition in this case was filed, petitioner

resided in Forestville, Maryland.

The notice of deficiency was mailed on March 21, 1997, to

petitioner's Forestville address. It is unclear from the record

when petitioner actually received the notice of deficiency, but

petitioner admits to receiving the notice sometime in May of

1997. The petition was timely filed on June 17, 1997, within 90

days of respondent's mailing of the notice of deficiency on

March 21, 1997.

Discussion

The jurisdiction of this Court to redetermine a tax

deficiency depends upon the issuance of a valid notice of

deficiency and the timely filing of a petition. Secs. 6212,

6213; Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988); Pyo v.

Commissioner, 83 T.C. 626, 632 (1984). A petition is timely if

it is filed within 90 days after the notice of deficiency was

mailed to a person within the United States. Sec. 6213(a). 

Under conditions set forth in section 7502, for purposes of
- 3 -

computing whether a petition was filed within the 90-day filing

period, timely mailing of the petition by the taxpayer is timely

filing. When a petition is not filed within the 90-day period,

the case must be dismissed for lack of jurisdiction. Pugsley v.

Commissioner, 749 F.2d 691, 692 (11th Cir. 1985).

Section 6212(a) authorizes the Commissioner to send a notice

of deficiency to the taxpayer by certified or registered mail. 

Petitioner alleges that the notice of deficiency was not issued

by certified or registered mail and apparently argues that it is

invalid for that reason. We disagree. It has been held

repeatedly that an error in the delivery of the notice of

deficiency does not render the notice invalid so as to defeat Tax

Court jurisdiction when the petition is timely filed. Balkissoon

v. Commissioner, 995 F.2d 525 (4th Cir. 1993), affg. T.C. Memo.

1992-322; see also Clodfelter v. Commissioner, 527 F.2d 754, 756

(9th Cir. 1975), affg. 57 T.C. 102 (1971); Goodman v.

Commissioner, 71 T.C. 974 (1979); Zaun v. Commissioner, 62 T.C.

278 (1974). Providing the taxpayer with actual notice of the

deficiency determination in a timely manner is the essence of the

statutory scheme. Mulvania v. Commissioner, 81 T.C. 65, 68

(1983). Since petitioner received the notice of deficiency and

timely filed his petition with this Court, we need not decide

whether the notice of deficiency was sent by registered or
- 4 -

2 Petitioner filed a motion for the production of documents

on Apr. 2, 1998, in which he again argues that this case should

be dismissed because respondent has offered no evidence showing

that petitioner signed for the notice of deficiency when it was

delivered. Petitioner also requests that respondent produce the

documents used to calculate petitioner's deficiency. In this

opinion we address only the issue of jurisdiction. Because we

conclude that we have jurisdiction, issues concerning the

correctness of respondent’s determination would be considered in

a later proceeding. 

certified mail.2 Accordingly, we conclude that the notice is

valid and shall deny petitioner's motion to dismiss for lack of

jurisdiction.

An appropriate order will be

issued.