C. Conclusion

The notice of deficiency issued by respondent is valid, and petitioner failed to file a timely petition with this Court. Accordingly, petitioner's motion to dismiss for lack of jurisdiction will be denied, and respondent's motion to dismiss for lack of jurisdiction will be granted.

To reflect the foregoing,

An appropriate order denying petitioner's motion to dismiss for lack of jurisdiction and granting respondent's motion to dismiss for lack of jurisdiction will be entered.

Reviewed by the Court.

WELLS, COHEN, GERBER, RUWE, WHALEN, HALPERN, BEGHE, LARO, and THORNTON, JJ., agree with this majority opinion.

BEGHE, J., concurring: My impression is that it was due to mere inadvertence, a ministerial omission, that respondent's employees charged with the responsibilities of preparing and sending the notice of deficiency failed to stamp the date for filing the petition at the appropriate space provided on the notice form; it was not with the intention of flouting the expressed will of Congress. After all, the Commissioner has redesigned the statutory notice form so that it provides a space for stamping the date by which the petition must be filed; the vast majority of the statutory notices that are issued bear the requisite date stamp, and nothing we say or do in the majority opinion encourages the Commissioner to be less than diligent in his continuing efforts to achieve 100percent compliance with the Congressional mandate.

It's also my impression, consistent with the majority's inference that there was no detrimental reliance or confusion on petitioner's part, that he decided to file the petition more than 90 days after issuance of the notice with a view to testing its validity. Since petitioner, a member of the bar, chose not to testify in the hearing on the cross-motions, I'm comfortable in making this inference. See Wichita Terminal

Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. on other grounds 162 F.2d 513 (10th Cir. 1947).

I agree with the majority and Judges Foley and Swift that the statute, despite its imperative mood and lack of a saving provision like the second sentence of section 7522(a), doesn't require us to invalidate the notice. To invalidate the notice would impose a disproportionately severe sanction against the fisc. Any impression created by the Commissioner's occasional mistake, evidenced by this case, and by Smith v. Commissioner, 114 T.C. 489 (2000) (upholding validity of similar notice where taxpayer filed petition within 90-day period specified by section 6213(a)), that the Commissioner is flouting the expressed will of Congress, is belied by the revised format of the notice form and the directions and instructions in the Internal Revenue Manual.1

Having expressed agreement with the majority's upholding of the notice, what should we do with the petition, in the absence of any argument of detrimental reliance or any evidence of petitioner's confusion? The Court's response to a somewhat analogous situation in Shea v. Commissioner, 112 T.C. 183, 207 (1999), at least raises the question whether some sanction against respondent or relief to petitioner would be appropriate.

I join the majority in answering the question in the negative in this case. Because petitioner has failed to dispel the impression that the late filing of his petition was a product of his conscious resolve to test the validity of the notice, or even to allege that he was confused by the notice, I don't believe he's entitled to a ticket of admission to the Tax Court. I'm therefore comfortable in making our usual comment that he's not without a remedy-he can pay the deficiency, and claim and sue for a refund, see, e.g., Zimmerman v. Commissioner, 105 T.C. 220, 226 n.4 (1995) (citing McCormick v. Commissioner, 55 T.C. 138, 142 (1970)). In any event, attorneys, who are professionally charged with the responsibility generally of counting days for statute of limitations purposes-not just in tax cases-should be held to a higher

1 See, e.g., 2 Audit, Internal Revenue Manual (CCH), sec. 4.3.19.1.8.2, at 7712 (statutory notice letter must include the last day taxpayer can file petition with Tax Court); 2 Audit, Internal Revenue Manual (CCH), Exhibit 4.3.19.1-2, at 7748 (form of deficiency notice cover letter, as revised in 1999, includes heading "Last Day to File a Petition With the United States Tax Court:"); 2 Audit, Internal Revenue Manual (CCH), sec. 4.3.19.1.6.3, at 7709 (issuer of deficiency notice must enter "Last Day to File" date in the form letter).

standard than other pro se petitioners. Cf. Rendina v. Commissioner, T.C. Memo. 1996-392; Sisson v. Commissioner, T.C. Memo. 1994-545; deRochemont v. Commissioner, T.C. Memo. 1991-600 (citing Whitaker v. Commissioner, T.C. Memo. 1988-418 (citing Fihe v. Commissioner, 265 F.2d 511, 513 (9th Cir. 1958), affg. a Memorandum Opinion of this Court)).

All this leaves for another day the question of what to do with the case of a late-filing pro se lay petitioner who might be suffering from cognitive deficit, dyscalculia, or other disability. The resulting residual uncertainty about what we would do in such a case should help to stiffen the Commissioner's resolve to achieve 100-percent compliance in the future.

CHABOT, J., dissenting: The Congress decided that, if the Commissioner sent a notice of deficiency to a taxpayer, then the taxpayer should have help in determining the last date for petitioning this Court. The Congress decided to charge the Commissioner with the task of providing this help. The Congress decided to effectuate the foregoing by enacting that the Commissioner "shall include on each notice of deficiency" (emphasis added) the last date for petitioning this Court. Sec. 3463(a) of the 1998 Act.

The majority's opinion may be read to permit, or perhaps even encourage, the Commissioner to ignore the obligation of the statute, with no consequences except (1) where the taxpayer was misled and detrimentally relied on the misleading interpretation, or (2) perhaps where the taxpayer filed the "petition just after the expiration of the [statutory] filing period".

From the foregoing, I dissent.

I. "Shall"

When used in a statute, the word "shall" is ordinarily a word of command. See Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (citing Richbourg Motor Co. v. United States, 281 U.S. 528, 534 (1930)); United States v. Wood, 295 F.2d 772, 783 (5th Cir. 1961); Estate of La Sala v. Commissioner, 71 T.C. 752, 762-763 (1979).

Neither the context of the statutory provision nor its legislative history indicates that, in section 3463(a) of the 1998 Act, the word "shall" was intended to be directory rather than mandatory. Indeed, the full text of section 3463 of the 1998 Act (set forth supra in the majority's opinion p. 359) shows that "shall" appears in each subsection of section 3463 of the 1998 Act; thus far it has not been seriously suggested that "shall" is other than mandatory as it appears in subsections (b) and (c). Giving “shall" the same meaning in each of the three places it appears in section 3463 of the 1998 Act, I conclude that the Congress' choice of that word in subsection (a) mandates the Commissioner to state on the notice of deficiency what is the last date for petitioning this Court. See United States v. Olympic Radio & Television, 349 U.S. 232, 236 (1955);1 Estate of Owen v. Commissioner, 104 T.C. 498, 507-508 (1995) (and cases cited therein); Office of the Legislative Counsel, U.S. House of Representatives, Style Manual, Drafting Suggestions for the Trained Drafter, at 3 (1989).2

I would hold that section 3463(a) of the 1998 Act requires the Commissioner to state on the notice of deficiency what is the last date for petitioning this Court; and that the statutory language is not merely directory, that "shall" is not here the functional equivalent of "may".

II. "Each"

Section 3463(a)of the 1998 Act requires the Commissioner to state this information on "each notice of deficiency".

1In United States v. Olympic Radio & Television, 349 U.S. 232, 236 (1955), the Supreme Court instructed as follows:

It may be that Congress granted less than some thought or less than was originally intended. We can only take the Code as we find it and give it as great an internal symmetry and consistency as its words permit. We would not be faithful to the statutory scheme, as revealed by the words employed, if we gave "paid or accrued" a different meaning for the purposes of section 122(d)(6) [I.R.C. 1939] than it has in the other parts of the same chapter.

To the same effect see Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993). 2 The House Legislative Counsel's Office's style manual instructs legislative drafters as follows:

(4) Use same word over and over.-If you have found the right word, don't be afraid to use it again and again. In other words, don't show your pedantry by an ostentatious parade of synonyms. Your English teacher may be disappointed, but the courts and others who are straining to find your meaning will bless you.

(5) Avoid utraquistic subterfuges.-Do not use the same word in 2 different ways in the same draft (unless you give the reader clear warning).

As the majority's opinion notes, the Congress concluded that some taxpayers need assistance in determining the deadline for filing a timely petition. However, the enacted statutory language and legislative history do not indicate that the Commissioner is obligated to provide the required assistance only to those who need it, or who might reasonably be expected to need it. Rather, the Congress imposed the statutory obligation with respect to each notice of deficiency.

It is not at all unusual for the Congress to act more broadly than the confines of the problem described in the legislative history; the Congress has done so in many different areas of the tax law. See, e.g., Bartels Trust for Ben. of Univ. v. United States, 209 F.3d 147, 153-154 (2d Cir. 2000) (relating to charities' unrelated trade or business income); Corn Belt Tel. Co. v. United States, 633 F.2d 114, 117-118 (8th Cir. 1980) (relating to the definition of "public utility property" for investment credit purposes); Warrensburg Board & Paper Corp. v. Commissioner, 77 T.C. 1107, 1110-1111 (1981) (relating to subchapter S corporations' "one-shot" elections); Estate of Beal v. Commissioner, 47 T.C. 269, 271-272 (1966) (relating to includability of the value of certain annuities in decedents' estates). Where the Congress has chosen to so legislate, the courts do not confine the statute to the original problem, but rather apply the statute to the wider net that the Congress has cast.

The legislative history does not explain why the Congress chose to use statutory language that is broader than the problem it sought to address. However, it is plain that the Congress required the Commissioner to provide assistance on each notice of deficiency, and not merely where the assistance was, or might be, needed. We may speculate that the Congress so acted in order to simplify the Commissioner's obligations, by not requiring the Commissioner to make caseby-case determinations. It is possible, of course, that the Congress decided to avoid case-by-case determinations on the part of the Commissioner, and yet require or permit the Court to make such determinations. This seems to be contemplated in the majority's opinion, see supra p. 363 note 5, and is stated in Judge Swift's dissent, see infra p. 371. However, I do not find evidence of such a distinction in either the statute or the legislative history.