IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-60684
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JAMES A ROCHELLE
Petitioner - Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
Respondent - Appellee
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Appeal from the United States Tax Court
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June 4, 2002
Before KING, Chief Judge, and PARKER and CLEMENT, Circuit Judges.
PER CURIAM:
The Commissioner of Internal Revenue issued a statutory
notice of deficiency to the taxpayer, James A. Rochelle,
determining federal income tax deficiencies for 1995 and 1996,
together with accuracy-related penalties. The notice showed the
mailing date, but failed to show, under the appropriate heading,
the last day to file a petition with the United States Tax Court.
See Internal Revenue Service Restructuring and Reform Act of
1998, Pub. L. No. 105-206, § 3463(a), 112 Stat. 685, 767
(requiring each notice of deficiency to include “the last day on
which the taxpayer may file a petition with the Tax Court”). The
notice did, however, set out clearly the fact that if the
taxpayer wanted to contest the deficiency in court before making
any payment, he had ninety days from the mailing date to file a
petition with the Tax Court. The fact that the court could not
consider his case if his petition was filed late was not only set
out clearly in the notice but underscored. The notice also
contained the name and telephone number of an Internal Revenue
Service person to contact. The taxpayer mailed his petition for
redetermination 143 days after the mailing date, and it was filed
with the Tax Court three days later, well after the expiration of
the ninety-day period. Both the taxpayer and the Commissioner
moved to dismiss the case for lack of jurisdiction, the taxpayer
on the basis that the notice of deficiency was invalid because it
lacked the petition date and the Commissioner on the basis that
the petition was not filed within the ninety-day period
prescribed by I.R.C. § 6213(a) (1994). The Tax Court, in a
reviewed opinion, granted the Commissioner’s motion to dismiss
and denied the taxpayer’s motion. Rochelle v. Comm’r, 116 T.C.
356 (2001). We agree with the Tax Court for the reasons set out
in Judge Vasquez’s excellent opinion (concurred in by nine other
judges), which we adopt. Id. Accordingly, the judgment of the
Tax Court is AFFIRMED.
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