T.C. Memo. 1995-466
UNITED STATES TAX COURT
JOSEPH GREEN AND FE GREEN, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18985-94. Filed October 2, 1995.
Joseph Green, for petitioners.
Steven W. Ianacone, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Chief Special
Trial Judge Peter J. Panuthos, pursuant to the provisions of
section 7443(b)(4) and Rules 180, 181, and 183.1 The Court
agrees with and adopts the opinion of the Special Trial Judge,
which is set forth below.
1
Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable year in
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
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OPINION OF THE SPECIAL TRIAL JUDGE
PANUTHOS, Chief Special Trial Judge: This matter is before
the Court on respondent's Motion to Dismiss for Lack of
Jurisdiction.
The facts pertinent to the disposition of this matter are
summarized below.
Background
Respondent determined deficiencies in petitioners' Federal
income taxes, an addition to tax, and a penalty as follows:
Addition to Tax Penalty
Year Deficiency Sec. 6661 Sec. 6662(a)
1988 $11,846.82 $2,961.71 ---
1990 10,076.82 --- $2,015.36
Duplicate notices of deficiency dated July 8, 1994, were
sent to Fe Green (petitioner) and Joseph Green at 1503 Hastings
Mill Road, Pittsburgh, Pennsylvania, and to P.O. Box 1136, Cherry
Hill, New Jersey. United States Postal Service Form 3877 (Form
3877) reflects that the notices of deficiency were mailed on July
8, 1994. On June 24, 1993, approximately one year prior to the
mailing of the notices of deficiency, petitioner notified the
Internal Revenue Service Appeals Office in Newark, New Jersey
(Appeals), by letter, of Joseph Green's new address in Lyndhurst,
New Jersey. No notice of deficiency was sent to Joseph Green's
Lyndhurst, New Jersey, address.
Petitioners filed a petition seeking a redetermination of
their tax liability for 1988 and 1990. At the time of filing the
petition herein, petitioner resided in Pittsburgh, Pennsylvania,
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and Joseph Green resided in Lyndhurst, New Jersey. The date
October 7, 1994, is reflected on the petition next to the
signature of each petitioner. The envelope in which the petition
was mailed is postmarked October 9, 1994. The envelope is a
"Priority Mail U.S. Postal Service" envelope. The petition was
received and date stamped by the Court on October 13, 1994. The
90th day from July 8, 1994, was Thursday, October 6, 1994 (which
was not a legal holiday in the District of Columbia).
In her motion to dismiss, respondent asserts that because
the notice of deficiency was mailed on July 8, 1994, the filing
of the petition on October 13, 1994, is untimely. Respondent
further argues that even considering the U.S. Postal Service
postmark reflected on the envelope in which the petition was
contained (October 9, 1994), the petition is nevertheless
untimely. At the hearing held on this matter, respondent
conceded that the notice of deficiency mailed on July 8, 1994,
with respect to Joseph Green is invalid, since it was not sent to
his last known address. Petitioner asserts that the envelope
containing the notice of deficiency is postmarked July 12, 1994,
and, therefore, her petition, mailed October 9, 1994, was timely
filed. No evidence (either a postmarked envelope, testimony, or
an affidavit) were offered to support petitioner's allegations.2
2
Petitioner did not appear at the hearing on respondent's
Motion to Dismiss. By order dated June 12, 1995, petitioner was
given an opportunity to submit a report on or before July 12,
1995, pertaining to the allegation that the notice of deficiency
was mailed sometime after July 8, 1994. The order, sent by
certified mail, was returned to the Court on Aug. 18, 1995,
(continued...)
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Discussion
This Court's jurisdiction to redetermine a deficiency
depends upon the issuance of a valid notice of deficiency and a
timely filed petition. Rule 13(a), (c); Monge v. Commissioner,
93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142,
147 (1988). Section 6212(a) expressly authorizes respondent,
after determining a deficiency, to send a notice of deficiency to
the taxpayer by certified or registered mail. It is sufficient
for jurisdictional purposes if respondent mails the notice of
deficiency to the taxpayer's "last known address". Sec. 6212(b);
Frieling v. Commissioner, 81 T.C. 42, 52 (1983). If a notice of
deficiency is mailed to the taxpayer's last known address, actual
receipt of the notice is immaterial. King v. Commissioner, 857
F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Yusko
v. Commissioner, 89 T.C. 806, 810 (1987); Frieling v.
Commissioner, supra at 52. The taxpayer, in turn, has 90 days
from the date the notice of deficiency was mailed to file a
petition in this Court for a redetermination of the deficiency.
Sec. 6213(a).
"In the absence of contrary evidence, Form 3877 is proof of
mailing of the notice of deficiency." Carlyle v. Commissioner,
T.C. Memo. 1993-176 (citing United States v. Zolla, 724 F.2d.
808, 810 (9th Cir. 1984)); see also Cataldo v. Commissioner, 60
T.C. 522, 524 (1973), affd. per curiam 499 F.2d 550 (2d Cir.
(...continued)
unclaimed by petitioner.
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1974); Massie v. Commissioner, T.C. Memo. 1995-173. The notice
of deficiency was mailed on July 8, 1994, as reflected on Form
3877. The statutory 90-day period for timely filing a petition
with this Court expired on October 6, 1994.
As indicated above, this Court does not have jurisdiction to
redetermine the deficiency unless petitioner can demonstrate that
the petition was timely filed. Petitioner has not produced any
evidence which would indicate another date of the mailing of the
notice of deficiency. Accordingly, the petition was not filed
within the 90-day period pursuant to section 6213. Respondent's
motion to dismiss on the basis of petitioner's failure to timely
petition this Court is granted.3
We have found that the notice of deficiency was mailed on
July 8, 1994. Respondent has indicated that she concedes that
the notice of deficiency was not issued to the last known address
of Joseph Green. Accordingly, this matter will be dismissed for
lack of jurisdiction as to Joseph Green on the basis that no
valid notice of deficiency was issued to petitioner Joseph Green
at his last known address.4
3
Although petitioner cannot pursue her case in this Court,
she is not without a remedy. In short, petitioner may pay the
tax, file a claim for refund with the Internal Revenue Service,
and if the claim is denied, sue for a refund in the Federal
District Court or the United States Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
4
It is well established that this Court has jurisdiction
to determine whether we have jurisdiction over a particular case.
Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978).
However, since we have determined that we do not have
jurisdiction, we cannot consider other arguments made by
(continued...)
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An order of dismissal will
be entered.
(...continued)
petitioners relating to respondent's alleged violation of
administrative procedures and policies.