13‐2231‐ag
Grillo v. Comm’r
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL
EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 16th day of May, two thousand fourteen.
4
5 PRESENT: AMALYA L. KEARSE,
6 RAYMOND J. LOHIER, JR.,
7 SUSAN L. CARNEY,
8 Circuit Judges.
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11 ORTELLIO GRILLO, AWILDA GRILLO,
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13 Petitioners‐Appellants,
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15 v. No. 13‐2231‐ag
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17 COMMISSIONER OF INTERNAL REVENUE,
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19 Respondent‐Appellee.
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22 FOR APPELLANTS: ARTHUR LAWRENCE ALEXANDER, ESQ., New York,
23 NY.
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1 FOR APPELLEE: JOHN A. NOLET (Teresa E. McLaughlin, on the
2 brief), for Kathryn Keneally, Assistant Attorney
3 General, Tax Division, Department of Justice,
4 Washington, DC.
5
6 Appeal from an order of the United States Tax Court (John O. Colvin, Chief
7 Judge).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
9 AND DECREED that the order of the Tax Court is AFFIRMED.
10 Ortellio Grillo and Awilda Grillo appeal from an order of the United States
11 Tax Court dismissing for lack of jurisdiction their untimely petition for a
12 redetermination of an income tax deficiency. On appeal, the Grillos argue that
13 (1) the Tax Court erred in concluding that the Commissioner of Internal Revenue
14 provided proper notice of the deficiency, and (2) the Commissioner’s failure to
15 provide proper notice deprived them of due process. We assume the parties’
16 familiarity with the facts and record of the prior proceedings, to which we refer
17 only as necessary to explain our decision to affirm.
18 “We review the legal rulings of the Tax Court de novo and its factual
19 determinations for clear error.” Scheidelman v. Comm’r, 682 F.3d 189, 193 (2d
20 Cir. 2012). In order to challenge the Commissioner’s deficiency determination in
21 Tax Court, the Grillos were required to file a petition in that court within ninety
22 days after the Commissioner’s “proper mailing” of the notice of deficiency.
23 Follum v. Comm’r, 128 F.3d 118, 120 (2d Cir. 1997); see 26 U.S.C. § 6213(a). The
24 notice is properly mailed if the Commissioner sends it by certified or registered
25 mail to the taxpayer’s “last known address.” 26 U.S.C. §§ 6212, 6213; Follum, 128
26 F.3d at 119‐20. “A late petition will be dismissed for lack of jurisdiction . . . .”
27 Hoffenberg v. Comm’r, 905 F.2d 665, 666 (2d Cir. 1990).
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1 The Grillos contend that the Tax Court erred in concluding that the
2 Commissioner provided proper notice of the deficiency, arguing that the
3 Commissioner failed to establish that a copy of the notice had been mailed to
4 Awilda, not just Ortellio. We are not persuaded. The record evidence includes
5 copies of (1) the notices mailed to each of the Grillos, (2) the corresponding
6 postmarked envelopes bearing article numbers and other markings documenting
7 the delivery attempts and eventual return of the notices, and (3) the address
8 pages—one directed to Ortellio, and one to Awilda—for each envelope. The
9 Commissioner presented enough evidence for the Tax Court to conclude that a
10 copy of the deficiency notice had been mailed to each petitioner.
11 The Grillos also claim that the Commissioner failed to mail the deficiency
12 notices to the Grillos’ last known address in accordance with Section 6212 of the
13 Internal Revenue Code. Our review of the record compels us to reject this claim
14 as well. “The address shown on the taxpayer’s most recently filed return is his
15 last known address unless the taxpayer has sent a notice of change of address.”
16 Follum, 128 F.3d at 119. The Commissioner properly sent the deficiency notices
17 to the address on the return most recently filed prior to the mailing of the notices.
18 The Grillos notified the Commissioner of their change of address only after the
19 notices of deficiency had been mailed. Although the Grillos suggest otherwise,
20 the ninety‐day period for seeking a redetermination in tax court starts the day
21 the deficiency notice is properly mailed to the last known address and is not
22 tolled or extended by a taxpayer’s subsequent notification of a change of address.
23 See id. at 120. Nor did the Grillos’ execution of a Form 2848 Power of Attorney
24 designating their accountant, Moses Morgenstern, as their representative, alter
25 the taxpayer address to which the original notices of deficiency were to be
26 mailed. See McDonald v. Comm’r, 76 T.C. 750, 753 (1981) (“[C]opies of
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1 correspondence sent pursuant to a request in a power of attorney are a matter of
2 courtesy and in no way affect the mailing requirements of section 6212.”).
3 Lastly, the Grillos argue that the Commissioner’s allegedly improper
4 mailing of the notices deprived them of due process because it prevented them
5 from challenging the deficiency. This argument, too, lacks merit. We have
6 already concluded that the Commissioner’s mailing satisfied the notice
7 requirements for collecting a deficiency. And the Grillos may still object by
8 paying the deficiency, filing an administrative refund claim, and, if that claim is
9 denied, bringing an action in the district court for a refund. See Tadros v.
10 Comm’r, 763 F.2d 89, 91 (2d Cir. 1985).
11 We have considered the Grillos’ remaining arguments and conclude that
12 they are without merit. For the foregoing reasons, the order of the Tax Court is
13 AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
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