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known address.2 Since it is clear that the petition was not
filed within 90 days of the mailing of the notice of deficiency
for 1987, 1989, and 1991 (the subject notice of deficiency),
those years will be dismissed for lack of jurisdiction. The
question to be resolved is the ground upon which to base the
dismissal.3
On June 4, 1996, respondent mailed by certified mail
duplicate copies of the subject notice of deficiency to
petitioner. One copy was mailed to 9570 Wilshire Boulevard,
Beverly Hills, California 90212, which the parties agree was not
petitioner’s last known address; petitioner did not receive that
copy. The other copy was mailed to 750 El Medio, Pacific
Palisades, California 90272-3452. Petitioner resided at 705 El
Medio, Pacific Palisades, California. Petitioner did not receive
the notice of deficiency mailed to 750 El Medio.
2 Where jurisdiction is lacking because of the
Commissioner's failure to issue a valid notice of deficiency, we
will dismiss on that ground, rather than on the ground that the
taxpayer failed to file a timely petition. Shelton v.
Commissioner, 63 T.C. 193 (1974); O'Brien v. Commissioner, 62
T.C. 543, 548 (1974); Heaberlin v. Commissioner, 34 T.C. 58, 59
(1960).
3 If respondent is sustained, the petition is untimely, and
the deficiencies and additions to tax may be assessed.
Petitioner’s recourse then would be to pay the tax, file a claim
for refund with the Internal Revenue Service and, if the claim is
denied, sue for a refund in the appropriate Federal District
Court or the Court of Federal Claims. If petitioner is
sustained, the notice of deficiency is a nullity, and respondent
may not assess the deficiencies or additions to tax, under normal
circumstances, unless a valid notice of deficiency is issued.
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