T.C. Memo. 1996-5
UNITED STATES TAX COURT
MARIA E. REED, Petitioner v. COMMISSIONER
OF INTERNAL REVENUE, Respondent
Docket No. 8453-95. Filed January 11, 1996.
Maria E. Reed, pro se.
Stuart Spielman and Paul L. Dixon, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This case was assigned pursuant
to the provisions of section 7443A(b)(3) and Rules 180, 181, and
182.1
This matter is before the Court on respondent's Motion to
Dismiss for Lack of Jurisdiction. Although respondent contends
that this case must be dismissed on the ground that Maria E. Reed
(petitioner) failed to file her petition with this Court within
1
All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
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the time prescribed in section 6213(a), we understand petitioner
to argue that dismissal should be based on respondent's failure
to issue a valid notice of deficiency under section 6212. There
being no dispute that we lack jurisdiction over the petition
filed herein, we must resolve the parties' dispute respecting the
proper ground for dismissal.
Background
On January 5, 1994, respondent mailed a joint notice of
deficiency to petitioner and her former spouse, Phillip A. Reed,
determining a deficiency of $741 in their Federal income tax for
the taxable year 1990. The notice of deficiency was mailed to
petitioner in duplicate form at two separate addresses: (1) P.O.
Box 2259-210, Minden, Nevada 89423-2259592 (the Minden address);
and (2) P.O. Box 356-167, Paia, Hawaii 96779-0356567 (the Paia
address).
The Minden address is the address listed on petitioner's
1991 and 1992 tax returns. Petitioner filed her 1992 tax return
with respondent on or about February 14, 1993.2
The envelope bearing the notice of deficiency mailed to the
Minden address was returned to respondent marked "Unclaimed".
There is no evidence in the record regarding the delivery of the
notice of deficiency mailed to the Paia address.
2
Petitioner filed her 1992 return electronically. The
date Jan. 29, 1993, appears opposite the signature of both
petitioner and the electronic return originator on Form 8453
(U.S. Individual Income Tax Declaration for Electronic Filing)
that accompanied the filing of the 1992 return.
The record does not disclose the date on which petitioner
filed her 1991 tax return.
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On or about February 14, 1994, petitioner filed her 1993 tax
return, listing her address thereon as P.O. Box 603, Minden,
Nevada 89423.3
Petitioner asserts that she was unaware that respondent had
determined a deficiency in her 1990 income tax until she received
a notice from the Internal Revenue Service dated March 6, 1995,
stating that a portion of the tax refund that she was otherwise
due for the taxable year 1994 would be applied to tax owing for
the taxable year 1990.
Petitioner filed a petition for redetermination with this
Court on May 22, 1995. The petition was delivered to the Court
in an envelope bearing a U.S. Postal Service postmark date of May
16, 1995.4
As indicated, respondent filed a Motion to Dismiss For Lack
of Jurisdiction alleging that petitioner failed to file her
petition within the 90-day period prescribed in section 6213(a).
Petitioner filed an objection to respondent's motion to dismiss
alleging that the deficiency notice in question was not mailed to
her correct address, which she identified as P.O. Box 603,
Minden, Nevada 89423. Respondent filed a response to
petitioner's objection countering that the deficiency notice was
3
Petitioner filed her 1993 return electronically. The date
Jan. 21, 1994, appears opposite the signature of both petitioner
and the electronic return originator on Form 8453 (U.S.
Individual Income Tax Declaration for Electronic Filing) that
accompanied the filing of the 1993 return.
4
At the time that the petition was filed, petitioner
resided in Minden, Nevada.
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mailed to petitioner's last known address. Thereafter,
petitioner filed a supplemental objection stating that she was
unaware of the deficiency notice until early in 1995.
A hearing was conducted in this case on November 8, 1995, in
Washington, D.C. Counsel for respondent appeared at the hearing
and presented argument in support the pending motion. In
particular, counsel for respondent argued that the notice of
deficiency was mailed to petitioner's last known address in that
respondent's records indicate that petitioner's 1992 tax return
was the last return filed by petitioner prior to the mailing of
the notice of deficiency. Although petitioner did not appear at
the hearing, she did file a written statement with the Court
pursuant to Rule 50(c).
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 the
Commissioner, 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 at the
taxpayer's last known address, then actual receipt of the notice
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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 that the notice of
deficiency is mailed to file a petition in this Court for a
redetermination of the deficiency. Sec. 6213(a).
Respondent mailed the deficiency notice in this case on
January 5, 1994. Thus, the 90-day period for filing a timely
petition with this Court expired on Tuesday, April 5, 1994, a day
that was not a legal holiday in the District of Columbia. Sec.
6213(a). The envelope containing the petition in this case was
postmarked May 16, 1995, and the petition was filed by the Court
on May 22, 1995. Given that the petition was neither mailed nor
filed prior to the expiration of the 90-day statutory period for
filing a timely petition, it follows that we lack jurisdiction
over the petition. Secs. 6213(a), 7502; Rule 13(a), (c); see
Normac, Inc. v. Commissioner, supra. The question presented is
whether dismissal of this case should be premised on petitioner's
failure to file a timely petition under section 6213(a) or on
respondent's failure to issue a valid notice of deficiency under
section 6212.
Petitioner contends that respondent failed to mail the
notice of deficiency to her at her last known address. We
disagree.
Although the phrase "last known address" is not defined in
the Internal Revenue Code or in the regulations, we have held
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that a taxpayer's last known address is the address shown on the
taxpayer's most recently filed return, absent clear and concise
notice of a change of address. Abeles v. Commissioner, 91 T.C.
1019, 1035 (1988); see King v. Commissioner, supra at 681. The
burden of proving that a notice of deficiency was not sent to the
taxpayer at his or her last known address is on the taxpayer.
Yusko v. Commissioner, supra at 808.
Contrary to petitioner's view of the matter, we conclude
that the notice of deficiency was mailed to petitioner at her
last known address. Respondent mailed the notice to petitioner
at the address appearing on petitioner's 1992 tax return; i.e.,
the Minden, Nevada address. The record clearly shows that
petitioner's 1992 tax return was the last return that petitioner
filed prior to the issuance of the notice of deficiency.
Moreover, petitioner has failed to come forth with any evidence
tending to show that she provided respondent with clear and
concise notice that she intended for respondent to correspond
with her at any address other than the Minden, Nevada, address.
Because the notice of deficiency was mailed to petitioner at
her last known address, we shall grant respondent's motion to
dismiss for lack of jurisdiction.5
In order to reflect the foregoing,
5
Although petitioner cannot pursue her case in this Court,
she is not without a legal 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).
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An order will be entered
granting respondent's motion and
dismissing this case for lack of
jurisdiction on the ground that the
petition was not timely filed.