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mailed to the taxpayer. If a notice of deficiency is rescinded,
the taxpayer has no right to file a petition with the Court based
on such a notice. Moreover, a notice that is rescinded is not
treated as a notice of deficiency for purposes of section
6212(c)(1), which restricts the issuance of further notices of
deficiency. Sec. 6212(d).
The parties do not dispute that the notice of deficiency was
mailed to petitioners at petitioners' last known address, nor do
the parties dispute that the petition was mailed and filed more
than 90 days after the issuance of such notice. Respondent
contends that this case should be dismissed for lack of
jurisdiction because the petition was not filed within the time
provided by sections 6213(a) and 7502. In contrast, petitioners
contend principally that the notice of deficiency was rescinded
and that, for such reason, this case should be dismissed for lack
of jurisdiction. Alternatively, petitioners contend that the IRS
letter dated November 21, 1996, constituted a second notice of
deficiency and that their petition was timely filed when measured
from the date of mailing of such letter.
We must first decide whether the notice of deficiency was
rescinded, because, if such notice was rescinded, we will dismiss
on that ground, rather than for lack of a timely-filed petition.
See, e.g., Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989),
affd. without published opinion 935 F.2d 1282 (3d Cir. 1991).
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