Unpublished Disposition, 937 F.2d 613 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1988)

Gilberto Pinto SAURITH, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent-Appellee.

No. 89-70178.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


Gilberto Pinto Saurith appeals pro se the tax court's dismissal for lack of jurisdiction of his petition for a redetermination of tax deficiency for tax year 1984. The tax court found that Saurith's petition was not timely filed, depriving it of jurisdiction. We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We review de novo, West Coast Truck Lines, Inc. v. American Indus., Inc., 893 F.2d 229, 231 (9th Cir. 1990), and affirm.

The Internal Revenue Service ("IRS") must give notice to the taxpayer before it may assess or collect any deficiency. 26 U.S.C. § 6213(a). A notice of deficiency is valid if it is mailed to the taxpayer's "last known address." 26 U.S.C. § 6212(b) (1); King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988). A taxpayer may challenge her tax liability before paying the deficiency by filing a petition for redetermination with the tax court within 90 days of the mailing of the notice of deficiency. 26 U.S.C. § 6213(a); Scar v. Commissioner, 814 F.2d 1363, 1366 (9th Cir. 1987). If a petition is delivered by mail and received after the last day allowed for filing, the postmark date is deemed to be the date of delivery. 26 U.S.C. § 7502(a) (1). The timely filing of a valid petition is a prerequisite for tax court jurisdiction. Scar, 814 F.2d at 1366.

Here, the IRS mailed a statutory notice of deficiency to Saurith on June 5, 1986. Saurith's petition for redetermination was received by mail and filed in the tax court on October 11, 1988. The petition was postmarked October 5, 1988. Thus, Saurith's petition was filed more than two years after the statutory 90-day period had expired. Accordingly, the tax court correctly determined that it lacked jurisdiction and dismissed the petition. See id.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3