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In response to the December 13, 1999 notice, petitioners
filed a petition with the Court on December 30, 1999, alleging,
inter alia, that no notice of deficiency was ever mailed to, or
received by, petitioners.
OPINION
Although petitioners argue that respondent has the burden of
proving both the existence of a final notice of deficiency with
respect to petitioners’ taxable year 1997 as well as the date of
the certified mailing of that notice to petitioners, our resolu-
tion of the parties’ cross-motions does not depend on who has the
burden of proof.
In support of petitioners’ position that their motion to
dismiss for lack of jurisdiction should be granted and that
respondent’s motion to dismiss for lack of jurisdiction should be
denied, petitioners rely principally on Pietanza v. Commissioner,
92 T.C. 729 (1989), affd. without published opinion, 935 F.2d
1282 (3d Cir. 1991). We find Pietanza to be distinguishable from
the instant case in certain material respects and petitioners’
reliance thereon to be misplaced. As we stated in that case,
Pietanza was a case of first impression, and we limited our
holding therein to the unusual facts presented there. See
Pietanza v. Commissioner, supra at 736. No such unusual facts
are presented in the instant case.
One material distinction between Pietanza v. Commissioner,
supra, and the instant case is that in Pietanza the Commissioner
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Last modified: May 25, 2011