filed. Accordingly, petitioner contends that his petition is timely under section 6213(a) despite the fact that it was filed 56 days after expiration of the 90-day period prescribed by the first sentence of that section.

Respondent does not address at length the merits of petitioner's argument described above. Rather, respondent simply denies that the last sentence of section 6213(a) operates to treat petitioner's petition as having been timely filed. Implicit in respondent's denial is his contention that the last sentence of section 6213(a) has no application in this case.

We begin our analysis with the actual text of the provision in dispute. The relief offered by the last sentence of section 6213(a) (that is, treating the petition as having been timely filed even where the petition is filed after expiration of the period prescribed by the first sentence of section 6213(a)) is predicated upon the filing of a petition "on or before the last date specified for filing such petition by the Secretary". (Emphasis added.) The parties differ on what effect the absence of an actual "last date specified" has on petitioner's ability to satisfy the condition to relief.

Petitioner argues that where the petition date is not specified by the Commissioner in the notice of deficiency, the condition to relief under the last sentence of section 6213(a) is satisfied by the mere filing of a petition. Petitioner appears to interpret the statute to provide that the petition is rendered timely because it was not filed after the last date specified in the deficiency notice. This, however, is not how the statute reads. The statute requires the petition to be filed on or before the last date specified in the notice of deficiency. Because the last date for filing a timely Tax Court petition was not specified by the deficiency notice in this case, the petition could not be filed on or before any such date. A textual analysis of the last sentence of section 6213(a) therefore supports respondent's position that such provision does not apply in the present case.

Respondent's position finds further support in the legislative history behind the amendment to section 6213(a). After

3 Petitioner's argument, if accepted, would afford taxpayers who receive a deficiency notice lacking the petition date with an unlimited time period in which to timely file their Tax Court petitions. We note that the existence of an unlimited filing period could produce uncertainty as to (a) the ability of the Commissioner to assess the determined deficiency given the restriction contained in the second sentence of sec. 6213(a), and (b) the tolling of the period of limitations on assessment provided by sec. 6503.

noting the requirement that the Commissioner specify the petition date in the notice of deficiency, the Senate Finance Committee report explained that the taxpayer "should be able to rely on the computation of that period by the IRS." S. Rept. 105-174, supra at 90, 1998–3 C.B. 537, 626; see also H. Rept. 105-364 (Part 1), supra at 71, 1998–3 C.B. 373, 443. This passage indicates that the justification behind the addition of the last sentence of section 6213(a) was to protect those taxpayers who, absent some form of relief, would have detrimentally relied on the Commissioner's miscalculation of the petition date.

The theory of detrimental reliance assumes the actual provision of misleading information upon which a party could rely. This case, however, does not involve the provision of misinformation. Although petitioner appears to argue on brief that the failure to provide the petition date in the notice led him to believe that he did not have to file his petition within the 90-day period, we find such argument implausible. As discussed above, the notice of deficiency issued to petitioner clearly provided that his petition had to be filed within 90 days of the mailing of the notice, and it emphasized the consequence of not doing so. We do not believe that a reasonable person, let alone one with petitioner's legal training, would interpret the mere absence of a stamped petition date following the heading "Last Date to File a Petition With the United States Tax Court" as the grant of an unlimited filing period, particularly given the express provisions to the contrary contained in the body of the notice. Simply put, this is not a case of taxpayer prejudice which Congress intended to rectify through the addition of the last sentence of section 6213(a).5

In light of the text of the last sentence of section 6213(a) and its legislative history, we hold that such provision does not operate in the instant case to render petitioner's petition timely.

4 Petitioner's specific argument reads as follows:

"Petitioner received the notice of deficiency, but did not file a Petition with the Tax Court within 90 days from the date of the notice of deficiency, since the notice of deficiency did not specify the last date on which Petitioner could file a Petition."

5 We do not address in this opinion the situation in which a taxpayer receives a deficiency notice omitting the petition date and files his petition just after expiration of the filing period set forth in the first sentence of sec. 6213(a) due to the taxpayer's miscalculation thereof.

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).