T.C. Memo. 1998-171



                      UNITED STATES TAX COURT



 LESTER JOHNSON AND SHERELLE D. BROOKS-JOHNSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent




     Docket No. 9704-97.                        Filed May 11, 1998.




     Lester Johnson and Sherelle D. Brooks-Johnson, pro se.

     Scott Hargis, for respondent.




                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Larry L. Nameroff pursuant to section 7443A(b) and Rules
                                - 2 -


180, 181, 183.1    The Court agrees with and adopts the opinion of

the Special Trial Judge, which is set forth below.

                  OPINION OF THE SPECIAL TRIAL JUDGE

     NAMEROFF, Special Trial Judge:     This case is before us on

respondent's Motion to Dismiss 1994 For Lack of Jurisdiction on

the ground that petitioners failed to file their petition within

the time period prescribed by section 6213(a).

                              Background

     By notice of deficiency dated September 3, 1996, respondent

determined a deficiency in petitioners' 1994 Federal income tax.2

The notice of deficiency was sent by certified mail to

petitioners at 2109 Scenic Ridge Drive, Chino Hills, CA 91709-

1008 (the Scenic Ridge address).    The 90th day after the mailing

of the deficiency notice was Sunday, December 1, 1996.

Accordingly, pursuant to section 7502, a petition to this Court

would be deemed timely if filed on or before Monday, December 2,

1996, which was not a holiday in the District of Columbia.

     Subsequently, on March 20, 1997, respondent sent petitioners

a notice of deficiency for 1993, wherein respondent determined a


     1
        Unless otherwise noted, all section references are to the
Internal Revenue Code. All Rule references are to the Tax Court
Rules of Practice and Procedure.
     2
        The record does not contain a copy of the 1994 notice of
deficiency, but a billing notice dated June 2, 1997, reflects a
balance due on an assessment of $10,935.80 of 1994 income tax,
before interest and penalties.
                               - 3 -


deficiency in income tax of $55,628 and a section 6662(a) penalty

of $11,126.   This notice was sent to P.O. Box 4098, Diamond Bar,

CA 91765-0098 (the Diamond Bar address).

     A letter from “L. Johnson” with a copy of the 1993 notice of

deficiency attached thereto, requesting rules for filing a

petition and a petition form, was received by the Court on May

12, 1997, and filed as a petition.     The Court ordered petitioners

to file a proper amended petition on or before July 15, 1997, and

to pay the $60 filing fee.   The amended petition was timely filed

and sought to place in dispute 1994 as well as 1993.3

     The amended petition contained the following statements

regarding the 1994 notice of deficiency:

     “Never received the ‘notice of deficiency’ for 1994. We
     were told about it on November 13, 1996 that we had until
     12/2/96"

     “We never received the ‘statutory notice of deficiency.’ we
     were told via the attached letter dated November 6, 1996
     that we had 3 weeks to file with the Tax Court. Please note
     that notices were sent to an address where we had not lived
     in almost 3 years!!”

A letter attached to the amended petition was addressed to Lester

Johnson at the Scenic Ridge address, and stated that it was in

response to “your recent inquiry regarding the Statutory Notice

of Deficiency which was issued on 9/3/96."    That letter further

     3
        Inasmuch as the original petition was filed more than 90
days after the mailing of the 1994 notice of deficiency, we need
not consider whether the original petition sought, as did the
amended petition, to place in dispute 1994 as well as 1993. Cf.
O’Neil v. Commissioner, 

, 107-108 (1976).
                               - 4 -


contained a check next to a paragraph thanking the addressee for

information sent and advising that the case would be returned to

the examination group for evaluation.     The letter further advised

that “The last day for filing a petition is 12/2/96.”

     On November 12, 1996, Lester Johnson met with Rebecca Piper,

a representative of respondent’s examination group, to discuss

the audit of the 1994 tax year.   According to Ms. Piper, that

meeting had been prearranged as a consequence of a contact by Mr.

Johnson for audit reconsideration.     During that meeting, Mr.

Johnson submitted some canceled checks to substantiate certain

deductions taken in 1994.   The evidence submitted at that time

was insufficient, however, to warrant any change in the prior

determination.   Mr. Johnson was again advised of the due date for

filing of the petition.

     On or about July 11, 1995, petitioner Lester Johnson

submitted to respondent’s Fresno Service Center (the service

center) a Form 4361, Application for Exemption from Self-

Employment Tax for Use by Ministers, Members of Religious Orders

and Christian Science Practitioners.     The Form 4361 showed the

applicant’s address as 3233 Grand Avenue, Ste N347, Chino Hills,

CA 91709 (the Grand Avenue address).     On February 2, 1996, the

director of the service center responded to Mr. Johnson at the

Grand Avenue address denying the application and returning the

original form.
                                - 5 -


     Sometime before March 19, 1996, petitioners submitted to the

service center a Form 8821, Tax Information Authorization,

regarding taxable years 1988 through 1994.   The form listed

petitioners' address as the Grand Avenue address.   By letter

dated March 19, 1996, that form was returned to petitioners

because it did not properly contain both petitioners’ signatures

and signature dates.

     Petitioner Sherelle D. Brooks-Johnson (Ms. Brooks-Johnson)

testified at the hearing in this matter.   While Mr. Johnson was

present in the courtroom and was invited by the Court to testify,

he declined.   Ms. Brooks-Johnson stated that petitioners had

lived at the Scenic Ridge address until March 1995, at which time

they moved to the Grand Avenue address.    The Diamond Bar address

was a second address that they used for business.   She further

stated that the audit of the 1993 return was ongoing at that time

and that she had given her new address to the examining agent.

Examination of the 1994 return was conducted by a different

agent, but Ms. Brooks-Johnson stated that both agents were aware

of the two audits.   Neither of those agents was called as a

witness.   The record is not clear as to whether or when such

notice of change of address was given to the agent examining

1993, and petitioners did not have any correspondence from him or

her before September 3, 1996.
                               - 6 -


     When petitioners’ 1994 Federal income tax return was

prepared and timely filed, the address shown on that return was

the Scenic Ridge address.   At the time of the mailing of the 1994

notice of deficiency, respondent’s computer records reflected the

Scenic Ridge address.

     As indicated, respondent filed a Motion to Dismiss 1994 for

Lack of Jurisdiction on the ground that the petition was not

filed within the 90-day period prescribed in section 6213(a).

Petitioners filed an objection to respondent's motion to dismiss,

alleging that respondent failed to mail the original deficiency

notice by registered or certified mail to their last known

address.

                            Discussion

     This Court's jurisdiction to redetermine a deficiency

depends upon the timely issuance of a valid notice of deficiency

and a timely filed petition.   Rule 13(a), (c); Monge v.

Commissioner, 

, 27 (1989); Normac, Inc. v.

Commissioner, 

, 147 (1988).   It is clear that the

petition and amended petition were filed more than 90 days after

the mailing of the 1994 notice of deficiency.   Consequently, we

must dismiss that year for lack of jurisdiction.   However, we

first determine whether respondent issued a valid notice of

deficiency.
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      Section 6212(a) authorizes the Secretary or his delegate,

upon determining that there is a deficiency in income tax, to

send a notice of deficiency "to the taxpayer by certified mail or

registered mail."   Section 6212(b)(1) provides that a notice of

deficiency, in respect of an income tax, "shall be sufficient" if

it is "mailed to the taxpayer at his last known address".

Generally, the Commissioner has no duty to effectuate delivery of

the notice after it is mailed.     Monge v. 

at

33.

      Neither section 6212 nor the regulation promulgated

thereunder, section 301.6212-1, Proced. & Admin. Regs., defines

what constitutes a taxpayer's "last known address".    We have

defined it as the taxpayer's last permanent address or legal

residence known by the Commissioner, or the last known temporary

address of a definite duration to which the taxpayer has directed

the Commissioner to send all communications during such a period.

Weinroth v. Commissioner, 

, 435 (1980); Alta Sierra

Vista, Inc. v. Commissioner, 

, 374 (1974), affd.

without published opinion 

(9th Cir. 1976).     Stated

otherwise, it is the address to which, in light of all the

surrounding facts and circumstances, the Commissioner reasonably

believed the taxpayer wished the notice to be sent.     Weinroth v.

.   The relevant focus is thus on the

Commissioner's knowledge, rather than on what in fact may have
                                - 8 -


been the taxpayer's actual address in use.     Brown v.

Commissioner, 

, 219 (1982) (citing Alta Sierra Vista,

Inc. v. 

).

     In Abeles v. Commissioner, 

(1988), we held that

a taxpayer's last known address is the address shown on his most

recent return, absent clear and concise notice of a change of

address.   Monge v. 

at 28.    However, once the

Commissioner has become aware of a change in address, he must use

reasonable care and diligence in ascertaining and mailing the

notice of deficiency to the correct address.     Whether the

Commissioner has properly discharged this obligation is a

question of fact.   Weinroth v. 

at 435-436;

Alta Sierra Vista, Inc. v. 

at 374.

     A validly executed power of attorney may suffice to render

an attorney's address the taxpayer's "last known address" if it

directs that all original notices and written communications be

sent to the taxpayer at the attorney's address.     See D'Andrea v.

Commissioner, 

(D.C. Cir. 1959); Reddock v.

Commissioner, 

(1979); Lifter v. Commissioner, 

, 821 (1973).

     In our opinion respondent properly mailed the 1994 notice of

deficiency to petitioners’ last known address.     First, the Scenic

Ridge address was the one appearing on petitioners’ most recently
                               - 9 -


filed return.4   Respondent’s computer records did not show a

different address.   Secondly, notwithstanding petitioners’

allegation that they did not receive a copy of the 1994 notice of

deficiency, Mr. Johnson apparently arranged for a conference to

reconsider the audit findings for 1994 and brought relevant

information with him.   Mr. Johnson was afforded the opportunity

to testify and explain this anomaly, but he declined.   We are

entitled to consider that his testimony would not have been

favorable to petitioners’ position.    McKay v. Commissioner, 

, 1238 (9th Cir. 1989), affg. 

(1987);

Wichita Terminal Elevator Co. v. Commissioner, 

, 1165

(1946), affd. 

(10th Cir. 1947).

     Petitioners were advised several times that the period for

timely filing a petition expired on December 2, 1996, and they

had ample time to do so.

     Petitioners contend that their submission of Forms 4361 and

8821 was sufficient to notify respondent of their new address.

From this record, we cannot conclude that petitioners gave clear

and concise notice of a new address.   Both of those forms were

returned to Mr. Johnson, and there is no evidence that the mere

receipt of either of these forms by the service center causes a

change to be made to respondent’s computer records.   In

     4
        There is no indication that petitioners filed a 1995
return or that such a return, if filed, reflected any different
address.
                               - 10 -


particular, the Form 8821 was not a validly executed power of

attorney and therefore did not constitute a notification of

change of address for petitioners.      Moreover, other than Ms.

Brooks-Johnson’s testimony, there is no evidence that she or Mr.

Johnson notified an examining revenue agent of their new address

before September 3, 1996.    We are not required to accept a

taxpayer’s self-serving, undocumented testimony, Wood v.

Commissioner, 

, 605 (9th Cir. 1964), affg. 

(1964), and, under the circumstances presented here, we do

not.

       In sum, we hold that the 1994 notice of deficiency was

mailed to petitioners’ last known address, and the petition

(and/or amended petition) insofar as it purports to place in

dispute that year is untimely.    Accordingly, we shall grant

respondent's motion to dismiss this case for lack of

jurisdiction.

       In order to give effect to the foregoing,


                                            An order will be issued

                                     granting respondent's Motion

                                     to Dismiss 1994 For Lack of

                                     Jurisdiction.