shall have the right, after consultation with MedChem [P.R.], to resolve and settle any such claims or suits.

12. Term and Termination.

12.1 Term of Agreement. The term of this Agreement shall commence on the date hereof and shall end on December 31, 1990 (unless sooner terminated pursuant to this Section 12), and may be renewed on terms and conditions mutually satisfactory to the parties hereto.

12.2 Insolvency. ***

12.3 Default.

(a) In General. Except as otherwise provided in this Section 12, either party, at its option, may terminate this Agreement upon the occurrence of any breach by the other party, provided however (i) that the nonbreaching party shall have delivered to the breaching party a written notice specifying such breach in reasonable detail, (ii) that the breaching party shall not have cured such breach within 60 days after receipt of the notice and (iii) that the nonbreaching party must exercise its option to terminate this Agreement within 60 days after the expiration of the cure period.

(b) Failure to Deliver by Alcon [P.R.]. Subject to the provisions of Section 12.3(c) of this Agreement, MedChem [P.R.] may terminate this Agreement if Alcon [P.R.] fails to Deliver Avitene ordered by MedChem [P.R.] under this Agreement, provided, however, (i) that MedChem [P.R.] shall have delivered to Alcon [P.R.] a written notice of such failure to Deliver, (ii) that Alcon [P.R.] shall have failed to make Delivery within 60 days after receipt of such written notice and (iii) that MedChem [P.R.] must exercise its option to terminate this Agreement within 60 days after the expiration of the cure period. Alcon [P.R.] acknowledges and agrees that if Alcon [P.R.] fails to Deliver Avitene ordered by MedChem [P.R.] under this Agreement, MedChem [P.R.] may make alternative arrangements, at Alcon [P.R.]'s expense, for the processing of Avitene for the then remaining term of this Agreement. However, Alcon [P.R.] shall not be liable for any incidental or consequential damages sustained by MedChem [P.R.] due to such failure to deliver.

(c) Force Majeure. * * *

12.4 Establishment of MedChem [P.R.] Plant. MedChem [P.R.] may terminate this Agreement pursuant to the provisions of Section 13.

12.5 Remedies Not Exclusive. In the event of a breach of this Agreement, the rights of termination provided in this Section 12 shall not be exclusive of any remedies to which either party may be entitled at law or in equity (as limited by the express terms of this Agreement), provided, however, that such other remedies shall not be subject to the time limitations set forth in Sections 12.3(a) and (b).

13. MedChem [P.R.] Plant. The parties acknowledge and agree that, during the term of this Agreement, MedChem [P.R.] will take steps designed to establish alternative facilities (the "MedChem [P.R.] Plant") that will enable MedChem [P.R.] to undertake the Conversion Process. In connection with the establishment of the MedChem [P.R.] Plant, MedChem [P.R.] shall bear the costs of removing the Equipment from the Humacao Plant,

including, but not limited to, the costs of repairing any damage to the Humacao Plant caused by such removal. Alcon [P.R.] covenants that it will provide reasonable assistance to MedChem [P.R.] in establishing the MedChem [P.R.] Plant, including training of the Humacao Plant Manager and other appropriate MedChem [P.R.] personnel in all aspects of the Conversion Process. In this regard, appropriate MedChem [P.R.] employees shall have the right, during the term of this Agreement, to observe with regard to the Conversion Process carried out by Alcon [P.R.] at the Humacao Plant. However, such MedChem [P.R.] employees will not participate in Alcon [P.R.]'s management process. In addition, upon the construction of the MedChem [P.R.] Plant, Alcon [P.R.] will assist with the validation of three initial Avitene production batches of each Avitene product produced at the MedChem [P.R.] Plant. When MedChem [P.R.] has successfully established the necessary machinery, equipment and quality control procedures, implemented the Conversion Process at the MedChem [P.R.] Plant and, in the sole opinion of MedChem [P.R.], conducted satisfactory validation tests and received all applicable governmental approvals relating to the operation of the MedChem [P.R.] Plant, MedChem [P.R.] shall have the right to terminate this Agreement prior to December 31, 1990 upon at least ninety (90) days prior written notice to Alcon [P.R.].

*

17. Applicable Law. The validity, performance and construction of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts.

* * * * * * *

19. Notices. Notices and other communications by a party under this Agreement shall be in writing and hand-delivered, deposited with an overnight carrier for next day delivery, or deposited in the United States mail as certified mail, return receipt requested, postage prepaid, addressed to the parties as follows (or to such other addresses as either party may designate from time to time in writing):

If to Alcon [P.R.]:

Alcon Laboratories, Inc.

6201 South Freeway

Forth Worth, TX 76134

Attention: Henry Meadows

Vice President and Controller

Surgical Specialty Division

If to MedChem [P.R.]:

MedChem Puerto Rico, Inc.

43 Nagog Park

Acton, MA 01720

Attention: President

and shall be deemed given when received.

20. No Agency Relationship. Neither party shall be deemed to be the agent of the other party for any purpose. Alcon [P.R.] shall be deemed an

independent contractor for the purposes of its performance of services for MedChem [P.R.]. * * *

*** * * *

The parties hereto have executed this Agreement as a sealed instrument and this Agreement becomes duly effective, as of the date first written above.

JAMES A. ROCHELLE, PETITIONER v. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT

Docket No. 18483-99.

Filed May 24, 2001.

R mailed to P a notice of deficiency which failed to provide
a date in the section entitled "Last Day to File a Petition With
the United States Tax Court" (i.e., the petition date).
Although P received the notice within several days of its mail-
ing, P did not file his petition with this Court until 56 days
after expiration of the 90-day period prescribed by sec.
6213(a), I.R.C. Held, R's failure to provide the petition date in
accordance with sec. 3463(a) of the Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, 112
Stat. 685, 767, does not render the notice of deficiency invalid.
Held, further, P's petition is not rendered timely by the oper-
ation of the last sentence of sec. 6213(a), I.R.C.

Lawrence R. Jones, Jr., for petitioner.
Denise G. Dengler, for respondent.

OPINION

VASQUEZ, Judge: Respondent determined the following deficiencies in Federal income tax and section 6662(a) accuracy-related penalties:

This case is before the Court on the parties' cross-motions to dismiss for lack of jurisdiction. Petitioner has moved for dismissal in his favor on the ground that respondent's notice of deficiency is invalid. Respondent moves for dismissal in his favor on the ground that the petition in this case was not timely filed. A hearing was held with respect to these motions on February 5, 2001.

Unless otherwise indicated, all section references are to the Internal Revenue Code as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.

Background

Petitioner resided in Austin, Texas, at the time the petition in this case was filed. Petitioner is an attorney who performed legal services in the Dallas, Texas, area during the years at issue. The facts necessary to decide the motions are few, and they are based on the parties' stipulations.

On July 20, 1999, respondent sent petitioner a notice of deficiency via certified mail.1 The notice was sent to petitioner's last known address in Austin, Texas. Although the exact date of delivery cannot be ascertained from the U.S Postal Service delivery receipt, the parties agree that petitioner received the notice of deficiency on or about July 23, 1999.

After the heading "Date" located in the upper right corner of the notice of deficiency appears a stamped date of July 20, 1999. Also in the upper right corner of the notice of deficiency appears a heading "Last Day to File a Petition With the United States Tax Court". The space immediately following this heading is blank, and nowhere else within the notice does the Commissioner provide the specific calendar date on which petitioner can last timely file a petition with this Court. The body of the notice of deficiency does, however, contain the following passage regarding the timing considerations for filing a petition with this Court:

If you want to contest this deficiency in court before making any payment, you have 90 days from the above mailing date of this letter (150 days if addressed to you outside of the United States) to file a petition with the United States Tax Court for a redetermination of the deficiency. *** The time in which you must file a petition with the Court (90 or 150 days

1 The notice of deficiency was also mailed to Tom Gilbert, a certified public accountant listed as petitioner's representative under a power of attorney.

as the case may be) is fixed by law and the Court cannot consider your case if your petition is filed late.

Petitioner mailed his petition to the Court on December 10, 1999, and the petition was received on December 13, 1999. The parties have stipulated that these dates are 143 and 146 days after the mailing of the notice of deficiency, respectively.

Discussion

There are two prerequisites to this Court's jurisdiction to redetermine a deficiency: (1) The issuance of a valid notice of deficiency by the Commissioner; and (2) the timely filing of a petition with the Court by the taxpayer. See Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988); Pyo v. Commissioner, 83 T.C. 626, 632 (1984). The parties have each moved this Court to dismiss for lack of jurisdiction, albeit on different grounds. Petitioner moves to dismiss on the ground that the notice of deficiency issued by respondent is invalid. Respondent moves to dismiss on the ground that the petition filed in this case was untimely. If the notice of deficiency is found to be invalid, we must dismiss in petitioner's favor regardless of whether petitioner's petition was timely filed. See Weinroth v. Commissioner, 74 T.C. 430, 435 (1980). Accordingly, we shall first address the validity of respondent's notice.

A. Validity of Notice of Deficiency

Petitioner contends that the notice of deficiency issued by respondent is invalid on account of its failure to specify the last possible date on which petitioner could file a timely petition with this Court (the petition date), as required by section 3463(a) of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 685, 767.2 Section 3463 of RRA 1998 provides in full as follows:

2 Sec. 3463(a) of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105–206, 112 Stat. 685, 767, has not been incorporated as a provision of the Internal Revenue Code. Nonetheless, this provision has the force of law. See Smith v. Commissioner, 114 T.C. 489, 491 (2000); see also United States Natl. Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993) (stating that an uncodified provision shall have the force of law as long as the provision is in the Statutes at Large).