T.C. Memo. 1998-235 

UNITED STATES TAX COURT

 GREGORY KEITH WADE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 17766-97. Filed July 2, 1998. 

Gregory Keith Wade, pro se. 

Paul B. Burns, for respondent.

MEMORANDUM OPINION

WOLFE, Special Trial Judge: This matter is before the Court

on respondent's Motion to Dismiss for Lack of Jurisdiction. 

Respondent contends that this Court lacks jurisdiction because

the petition was not filed within the applicable 90-day period

after mailing of the deficiency notice as required by sections
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1 All section references are to the Internal Revenue Code in

effect for the tax year in issue, unless otherwise indicated. 

6213(a) and 7502.1 Petitioner objects to respondent's Motion to

Dismiss for Lack of Jurisdiction and contends that he should be

allowed 150 days from the date of mailing of the deficiency

notice to file his petition with this Court because he was

outside of the United States on the day the notice of deficiency

was issued. 

On March 19, 1997, respondent sent a notice of deficiency

for the taxable year 1994 to petitioner at his last known

address. On August 16, 1997, 150 days after the notice of

deficiency was sent, petitioner filed with this Court his

petition contesting the addition to tax under section 6651(a) and

the accuracy-related penalty under section 6662(a). Petitioner

resided in San Clemente, California, when his petition was filed. 

During the hearing, the parties agreed to an oral stipulation of

facts, which was read into the record and incorporated by this

reference. Subsequent to the hearing, the parties submitted an

additional stipulation of facts and attached exhibits that are

also incorporated by this reference.

This Court's jurisdiction is strictly limited by statute,

and unless a petition is filed within the time prescribed by

statute, we lack jurisdiction and must dismiss the case. Estate

of Moffat v. Commissioner, 46 T.C. 499, 501 (1966). For the
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reasons discussed below, we deny respondent's Motion to Dismiss

for Lack of Jurisdiction. 

Generally, a petition must be filed within 90 days after the

notice of deficiency is mailed to a taxpayer within the United

States. Secs. 6213(a), 7502; Monge v. Commissioner, 93 T.C. 22,

27 (1989). If the notice of deficiency is addressed to a person

outside the United States, the taxpayer has 150 days to file a

petition. Sec. 6213(a). The statute states in pertinent part:

SEC. 6213(a). Time for Filing Petition and

Restriction on Assessment.--Within 90 days, or 150 days

if the notice is addressed to a person outside the

United States, after the notice of deficiency

authorized in section 6212 is mailed (not counting

Saturday, Sunday, or a legal holiday in the District of

Columbia as the last day), the taxpayer may file a

petition with the Tax Court for a redetermination of

the deficiency. * * * 

The 90-day period for filing with this Court expired on

Tuesday, June 17, 1997, which was not a legal holiday in the

District of Columbia. The envelope in which the petition was

mailed bore a legible United States postmark of August 16, 1997,

exactly 150 days after the mailing of the notice of deficiency. 

Sec. 7502(a)(1). This Court received and filed petitioner's

petition on August 26, 1997. Respondent concedes that, if the

longer period is applicable, petitioner has satisfied the 150-day

requirement for filing a notice of deficiency pursuant to

sections 6213(a) and 7502(a). Our jurisdiction, therefore,

depends on whether petitioner was entitled to file his petition

within 150 days after the notice of deficiency was mailed.
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This Court has determined that the 150-day period applies

not only to persons who are outside of the United States "on some

settled business and residential basis," but also to persons who

are temporarily absent from the country. Levy v. Commissioner,

76 T.C. 228, 231 (1981). In addition, the taxpayer's absence

from the country must result in delayed receipt of the deficiency

notice. Lewy v. Commissioner, 68 T.C. 779, 783 (1977).

In Levy v. Commissioner, supra, the taxpayers left their

home in Chicago for a vacation in Jamaica on the same day that

the notice of deficiency was mailed to them. The taxpayers

returned to their home 5 days later, at which time they received

the notice of deficiency. In holding that the 150-day period

applied, this Court found that, "the full 90-day period for

reviewing their position and determining their options was not

available to the * * * [taxpayers], and it was this precise

hardship which occasioned the drafters to allow 150 days for a

response where the taxpayer is abroad." Id. at 231. 

The evidence in this case establishes that petitioner

departed on Korean Airlines flight number 11, from Los Angeles,

California, to Seoul, South Korea, on March 19, 1997, the day the

notice of deficiency was issued. Prior to his departure from the

United States, petitioner put his mail delivery on hold at his

local post office. Petitioner arrived in the Philippines, his 

destination on this journey, on March 21, 1997. On April 3,

1997, petitioner left the Philippines and returned directly to
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2 Petitioner returned to the United States 15 days after the

notice of deficiency was mailed but, acting reasonably under the

circumstances of his lengthy travel, did not pick up his mail at

the post office until 19 days after the mailing of the notice.

the United States. Subsequently, petitioner picked up the notice

of deficiency at his local post office on April 7, 1997.

Petitioner was temporarily absent from the United States and

was delayed approximately 19 days2 in receiving the notice of

deficiency. See Estate of Krueger v. Commissioner, 33 T.C. 667

(1960). Petitioner did not have the full 90-day period for

considering the matter after the mailing of the deficiency notice

and, as noted above, in accordance with the purpose of the

statute as well as the terms of section 6213(a), the 150-day

period is applicable here. See Levy v. Commissioner, supra at

231. Respondent's argument that petitioner had sufficient time

to file the notice of deficiency within the 90-day period after

his return to the United States and, therefore, is not eligible

for the extended 150-day period, is unpersuasive under the

circumstances here. Petitioner's absence from the United States

was not an "ephemeral one, a weekend trip" and consequently the

"practical" test set forth Malekzad v. Commissioner, 76 T.C. 963,

970-972 (1981), is inapplicable here.

Accordingly, petitioner is entitled to avail himself of the

150-day filing period. Respondent's motion is denied.

An appropriate order will

be issued.