T.C. Memo. 2003-121

UNITED STATES TAX COURT

NICK A. SHUBIN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10890-02. Filed April 28, 2003.

Nick A. Shubin, pro se.

Kevin W. Coy, for respondent.

MEMORANDUM OPINION

LARO, Judge: Petitioner, while residing in Rolling Hills,

California, petitioned the Court with respect to his 1991, 1992,

1993, 1994, 1995, and 1996 Federal income taxes. Currently, the

case is before the Court on respondent’s motion to dismiss for

lack of jurisdiction.
-2-

1 This background section is based on the undenied

allegations in and the exhibit attached to respondent’s motion.

We shall grant respondent’s motion to dismiss the case for

lack of jurisdiction. Section references are to the applicable

versions of the Internal Revenue Code. Rule references are to

the Tax Court Rules of Practice and Procedure.

Background1

On June 28, 2002, petitioner filed with the Court his

petition as to 1991, 1992, 1993, 1994, 1995, and 1996. 

Petitioner did not attach a notice of deficiency to his petition

as required by Rule 34(b)(8). In a statement attached to his

petition, petitioner alleged that he never received a notice of

deficiency for any of the above-referenced years. Respondent

issued a notice of deficiency for 1991 to petitioner on January

5, 1996. Respondent did not issue a notice of deficiency to

petitioner for any of the other years.

Discussion

The Court’s jurisdiction to redetermine a deficiency depends

on 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
-3-

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 notice of deficiency is mailed to the taxpayer at

the taxpayer’s last known address, actual receipt of the notice

by the taxpayer is not essential to its validity. King v.

Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C.

1042 (1987); De Welles v. United States, 378 F.2d 37 (9th Cir.

1967). The taxpayer, in turn, has 90 days (or 150 days if the

notice is addressed to a person outside the United States) 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). Under section 7502(a), a timely mailed petition

will be treated as though it were timely filed.

Petitioner’s only allegation is that he never received any

notice of deficiency with respect to 1991, 1992, 1993, 1994,

1995, and 1996. As to 1991, respondent argues that petitioner’s

petition was untimely. Respondent attached to his motion a

certified mail list, which indicates that on January 5, 1996, he

sent a notice of deficiency for 1991 to petitioner at each of two

addresses. The certified mail list bears the stamp of the U.S.

Postal Service and the initials of a postmaster.

This Court has held that the act of mailing may be proven by

documentary evidence of mailing or by evidence of the
-4-

Commissioner’s mailing practices corroborated by direct

testimony. Coleman v. Commissioner, 94 T.C. 82, 90 (1990);

Magazine v. Commissioner, 89 T.C. 321 (1987). A U.S. Postal

Service Form 3877 reflecting postal receipt represents direct

documentary evidence of the date and the fact of mailing. 

Magazine v. Commissioner, supra at 324, 327. The certified mail

list submitted by respondent performs the same function as Form

3877. Massie v. Commissioner, T.C. Memo. 1995-173, affd. without

published opinion 82 F.3d 423 (9th Cir. 1996); Virgin v.

Commissioner, T.C. Memo. 1991-63. Where the existence of the

notice of deficiency is not in dispute, a properly completed Form

3877 by itself is sufficient, absent evidence to the contrary, to

establish the date of mailing of the notice to a taxpayer. 

United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984);

Coleman v. Commissioner, supra at 91. Given that the record in

the instant case does not contain any evidence to the contrary,

we conclude that respondent issued to petitioner a notice of

deficiency on January 5, 1996, as the certified mail list

establishes. In that petitioner filed a petition with the Court

disputing that notice of deficiency on June 28, 2002, which is

more than 6 years after the expiration of the 90-day period

prescribed by section 6213(a), we conclude that we lack

jurisdiction as to 1991. See De Welles v. United States, supra.
-5-

We also conclude that we lack jurisdiction as to the

remaining years. Respondent has not issued to petitioner a

notice of deficiency as to any of those years. Nor does there

appear to be an alternative basis on which to predicate

jurisdiction.

On the basis of the record before us and on the analysis

above, we conclude that we lack jurisdiction in this case, and we

shall grant respondent’s motion.

To reflect the foregoing,

An appropriate order

granting respondent’s motion

to dismiss for lack of

jurisdiction will be entered.