T.C. Memo. 1996-163
UNITED STATES TAX COURT
JESUS V. CUTILLAR AND NORA CUTILLAR, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
Docket No. 13125-95. Filed March 28, 1996.
James R. Brewster, for petitioners.
Robert Dillard, for respondent.
MEMORANDUM OPINION
RUWE, Judge: This matter is before us on respondent’s
motion to dismiss for lack of jurisdiction on the grounds that
the petition in this case was not filed within the time
prescribed by section 6213(a).1
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable year in
(continued...)
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During the 1982 taxable year, petitioner Jesus V. Cutillar
was a partner in the partnership of Waltbar & Associates
(Waltbar). Waltbar invested in two other partnerships, Whitman
Recycling Associates (Whitman) and Stevens Recycling Associates
(Stevens). Waltbar was a pass-thru partner in Whitman and
Stevens. In January and February 1995, following adjustments at
the partnership level to Whitman and Stevens for the 1982 taxable
year, respondent notified petitioners that their distributive
share of income/loss/credit from Waltbar for 1982 had been
adjusted to reflect respondent’s adjustments to Whitman and
Stevens. These adjustments were the result of partnership level
proceedings conducted pursuant to sections 6221-6233 and resulted
in tax assessments against petitioners.
On March 16, 1995, respondent issued a notice of deficiency
(the first notice of deficiency) to petitioners at their last
known address, 4005 Forsythe Way, Tallahassee, Florida, 32308-
2360, determining the following additions to tax with respect to
the tax adjustments related to Stevens:
Additions to Tax
Year Sec. 6653(a)(1) Sec. 6653(a)(2)
1982 $15.60 50 percent of the
interest due on
$312
1
(...continued)
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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Petitioners have already paid the addition to tax under section
6653(a)(1) in the amount of $15.60.2
On April 7, 1995, respondent issued an additional notice of
deficiency for the 1982 taxable year (the second notice of
deficiency) to petitioners at the same address, determining the
following additions to tax with respect to the tax adjustments
related to Whitman:
Additions to Tax
Year Sec. 6653(a)(1) Sec. 6653(a)(2) Sec. 6659
1982 $853 50 percent of $4,620
the interest due
on $17,068
This Court’s jurisdiction is strictly limited by statute,
and, unless a petition is filed within the time prescribed by
statute, we lack jurisdiction and must dismiss the case for that
reason. Estate of Moffat v. Commissioner, 46 T.C. 499, 501
(1966). A petition must be filed within 90 days after the notice
of deficiency is mailed to a taxpayer within the United States.
Sec. 6213(a). If the notice is addressed to a person outside the
United States, the taxpayer receives 150 days to file a petition.
Id.
The 90-day period for filing a petition with this Court
expired on June 14, 1995, for the first notice of deficiency and
2
Prepayment by the taxpayer does not deprive the Tax Court
of jurisdiction, where payment is made after the mailing of the
notice of deficiency. Sec. 6213(b)(4).
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on July 6, 1995, for the second notice of deficiency. Neither
date was a Saturday, Sunday, or legal holiday in the District of
Columbia. Id. On July 17, 1995, the Court received and filed
the petition. The envelope in which such petition was mailed
bore a legible United States postmark date of July 13, 1995, 119
days after the mailing of the first notice of deficiency and 97
days after the mailing of the second notice of deficiency. Sec.
7502(a)(1). Our jurisdiction, therefore, depends on whether
petitioners were entitled to file their petition within 150 days
after the notices of deficiency were mailed. Petitioners bear
the burden of demonstrating that they come within the scope of
the provision allowing 150 days for the mailing of the petition
where the notice is addressed to a person outside of the country.
Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
Petitioners were in the United States from March 16, 1995,
through June 17, 1995. On June 17, 1995, petitioners traveled to
the Philippines. Petitioners returned to the United States on
July 3, 1995.
This Court has determined that the 150-day period applies
not only to persons who are outside of the United States “on some
settled business and residential basis” but also to persons who
are temporarily absent from the country. Levy v. Commissioner,
76 T.C. 228, 231 (1981); Estate of Krueger v. Commissioner, 33
T.C. 667, 668 (1960). However, the taxpayer’s absence must
result in delayed receipt of the deficiency notice. Lewy v.
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Commissioner, 68 T.C. 779, 783 (1977). In Malekzad v.
Commissioner, 76 T.C. 963, 969-970 (1981), we explained that in
determining whether the 150-day period is applicable, we look at
both the date of mailing of the notice of deficiency as well as
the date on which the notice was received by the taxpayer. The
crucial inquiry is whether the taxpayer falls within the class of
persons that Congress intended to receive the benefit of the
longer period and whether the notice of deficiency served the
notice function that it was designed to serve. Id. at 970. The
congressional purpose behind the enactment of the 150-day rule
was the prevention of hardships caused by delays in the receipt
of a notice of deficiency due to the taxpayer’s absence from the
United States and the relatively slow international mails.
Looper v. Commissioner, 73 T.C. 690, 694 (1980).
Application of the approach utilized in Malekzad v.
Commissioner, supra, to the facts in the instant case clearly
reveals that petitioners were not entitled to the 150-day period
for filing their petition. Petitioners were in the United States
on the dates that the notices of deficiency were mailed as well
as on the dates that they were received. Indeed, petitioners did
not travel to the Philippines until 93 days after the first
notice of deficiency was mailed and 71 days after the second
notice of deficiency was mailed. Thus, petitioners’ absence from
the country in no way resulted in a delay in the receipt of
either notice. Lewy v. Commissioner, supra.
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Petitioners were not entitled to avail themselves of the
150-day filing period. Accordingly, respondent’s motion to
dismiss will be granted.3
An appropriate order of
dismissal will be entered.
3
Petitioners also make a generalized claim that they were
denied due process during the partnership level proceeding. The
partnership level proceeding preceded and was completed prior to
the notices of deficiency upon which the petition in the instant
case was based. Our jurisdiction to consider any of petitioners’
arguments must be based upon a timely petition. As we have held,
we lack jurisdiction because the petition in this case was not
filed within the statutory time limit.