Bill Blankstyn, Petitioner-appellant, v. Commissioner Internal Revenue Service, Respondent-appellee, 990 F.2d 1255 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 990 F.2d 1255 (9th Cir. 1993)

Submitted March 10, 1993. *Decided March 19, 1993

Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


Bill Blankstyn appeals pro se the tax court's dismissal of his petition for redetermination of a tax deficiency for the tax year 1985. The tax court found that it lacked jurisdiction to consider the petition because Blankstyn filed it more than 90 days after the mailing of the notice of deficiency. We have jurisdiction pursuant to 26 U.S.C. § 7482. We review de novo, Scar v. Commissioner, 814 F.2d 1363, 1366 (9th Cir. 1987), and affirm.

Section 6212(a) of the Internal Revenue Code states in part: "If the Secretary determines that there is a deficiency in respect of any tax imposed ... he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail." 26 U.S.C. § 6212(a). Section 6213(a) provides in part: "Within 90 days ... after the notice of deficiency authorized in section 6212 is mailed ... the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." 26 U.S.C. § 6213(a). The timely filing of a valid petition for redetermination is jurisdictional. Scar, 814 F.2d at 1366.

Here, the Commissioner mailed a valid notice of deficiency to Blankstyn at his last known address by certified mail on March 26, 1990. The 90-day period within which to file a petition for redetermination expired on June 26, 1990. See 26 U.S.C. § 6213(a). Blankstyn filed his petition for redetermination on July 15, 1991, well beyond the expiration of the 90-day period.

Blankstyn contends that the 90-day period for filing his petition did not commence until he received the notice of deficiency on April 13, 1991, and therefore that his petition was timely filed. This contention lacks merit. The statute clearly states that the petition must be filed " [w]ithin 90 days ... after the notice of deficiency ... is mailed." 26 U.S.C. § 6213(a) (emphasis added). Furthermore, this court has consistently held that the mailing of the notice of deficiency commences the 90-day period. See King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988) (notices of deficiency are valid and begin running the limitation period upon mailing, regardless of when or if they are received); United States v. Zolla, 724 F.2d 808, 810 (9th Cir.) (same), cert. denied, 469 U.S. 830 (1984); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982) (same). Thus, the tax court correctly found that it did not have jurisdiction to consider Blankstyn's untimely petition. See Scar, 814 F.2d at 1366.



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