T.C. Memo. 1996-170
UNITED STATES TAX COURT
BEATRICE APPIAH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17995-95. Filed April 3, 1996.
William G. Davidson III, for petitioner.
Peter Reilly and Alan R. Peregoy, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Chief Special
Trial Judge Peter J. Panuthos pursuant to the provisions of
section 7443A(b)(4) and Rules 180, 181, and 183.1 The Court
1
All section references are to the Internal Revenue Code
in effect for the year in issue, unless otherwise indicated. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
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agrees with and adopts the opinion of the Special Trial Judge,
which is set forth below.
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.
On August 10, 1994, Beatrice Appiah (petitioner) and her
estranged husband, Francis Appiah, executed a Form 2848 (Power of
Attorney and Declaration of Representative) appointing William G.
Davidson III as their attorney in fact regarding their Federal
income tax liability for the taxable years 1989, 1990, 1991, and
1992.
On January 10, 1995, petitioner executed a Form 8822 (Change
of Address) indicating that her address was changing from 11700
Old Columbia Pike, #708, Silver Spring, Maryland 20904 (the
Silver Spring address) to P.O. Box 17, Asankrangwa, Ghana, West
Africa (the Ghana address).2 The Ghana post office box belongs
to petitioner's parents. Petitioner traveled to Ghana on January
11, 1995, where she stayed with her parents until she returned to
the Silver Spring address on March 30, 1995.
On April 14, 1995, respondent mailed duplicate original
joint notices of deficiency to petitioner and her estranged
2
The record does not disclose the exact date when
petitioner filed her Form 8822 with the Internal Revenue Service.
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husband, determining a deficiency of $9,212 in their Federal
income tax for 1989 as well as penalty under section 6662(a) in
the amount of $1,842.3 The deficiency notice was mailed to: (1)
The Silver Spring address; and (2) the Ghana address.4 On the
same date, respondent mailed a copy of the notice of deficiency
to petitioner's counsel, William G. Davidson III, pursuant to the
above-described Power of Attorney.
On April 18, 1995, after receiving notification from the
post office that a piece of certified mail was being held for
her, petitioner went to the post office and accepted delivery of
the notice of deficiency mailed to the Silver Spring address.
Upon receipt of the notice of deficiency, petitioner contacted
Mr. Davidson, who informed her that he had received a copy of the
notice of deficiency.
A petition for redetermination, signed by Mr. Davidson on
petitioner's behalf, was hand delivered to the Court on September
12, 1995, and was filed by the Court the same day.5
As indicated, respondent filed a Motion to Dismiss for Lack
of Jurisdiction. Respondent moves for dismissal on the ground
3
The record shows that respondent first mailed a notice of
deficiency to petitioner for 1989 on Feb. 2, 1995. Respondent
concedes that this notice is invalid for purposes of sec.
6212(a).
4
We observe that, in mailing the notice of deficiency to
the Ghana address, respondent misspelled the name of the town in
Ghana as Asankrangiva as opposed to Asankrangwa.
5
At the time the petition was filed, petitioner resided at
the Silver Spring address.
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that the petition was not filed within either the 90- or 150-day
period prescribed under section 6213(a).
Petitioner filed an objection to respondent's motion to
dismiss. Petitioner's primary contention is that the petition
was timely filed within the 150-day period prescribed in section
6213(a).
This matter was called for hearing in Washington, D.C.
Counsel for both parties appeared at the hearing and presented
argument on the pending motion. In addition, petitioner provided
testimony regarding the circumstances surrounding her receipt of
the notice of deficiency mailed to the Silver Spring address.
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 the Commissioner
mails the notice of deficiency to the taxpayer's "last known
address". Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52
(1983). The taxpayer, in turn, has 90 days (or 150 days if the
notice is addressed to a person outside the United States) from
the date the notice of deficiency is mailed to file a petition in
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this Court for a redetermination of the deficiency. Sec.
6213(a).
However, a notice of deficiency is not invalid merely
because it is not sent to the taxpayer's last known address. In
particular, an otherwise erroneously addressed notice of
deficiency remains valid under section 6212(a) if actually
received in sufficient time to permit the taxpayer, without
prejudice, to file a timely petition for redetermination. See
Mulvania v. Commissioner, 81 T.C. 65, 67-69 (1983) (erroneously
addressed notice held valid in light of actual receipt by the
taxpayer 16 days after it was mailed), affd. 769 F.2d 1376 (9th
Cir. 1985); see also Patmon & Young Professional Corp. v.
Commissioner, 55 F.3d 216, 217 (6th Cir. 1995), affg. T.C. Memo.
1993-143; Balkissoon v. Commissioner, 995 F.2d 525, 528-529 (4th
Cir. 1993), affg. T.C. Memo. 1992-322.6
There arguably are lingering questions in this case in
regard to whether the notice of deficiency was mailed to
petitioner's correct last known address and whether petitioner is
entitled to the 90- or 150-day period under section 6213(a) to
file her petition with this Court. Nonetheless, the record, as
developed at the hearing in this case, shows that petitioner
personally received the notice of deficiency mailed to the Silver
Spring address on April 18, 1995, 4 days after it was mailed.
6
Cf. Mulvania v. Commissioner, 769 F.2d 1376 (9th Cir.
1985), affg. T.C. Memo. 1984-98.
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Consistent with cases such as Mulvania v. Commissioner, supra, we
hold that petitioner received the notice of deficiency with ample
time to file a timely petition for redetermination.7 Moreover,
even assuming that petitioner is entitled to the 150-day period
prescribed in section 6213(a) for filing her petition with this
Court (a matter that we need not and do not decide), the petition
in this case was hand delivered to the Court and filed on
September 12, 1995, a date that falls 151 days after the mailing
of the deficiency notice. See Rule 25(a); McGuire v.
Commissioner, 52 T.C. 468 (1969).
Petitioner argues that September 12, 1995, represents the
150th day rather than the 151st day. Petitioner begins by
counting the day after the date of mailing as the first day
(April 15, 1995). She then indicates that April 15 is the 105th
day of the year and adds 150 days to that date to get to the
255th day of the year 1995 (September 12). Accordingly,
petitioner concludes that September 12, 1995, is the 150th day
after the mailing of the notice of deficiency.
Petitioner's computation is not correct. While it is
accurate to count as the first day, the day after the notice of
7
The Court of Appeals for the Fourth Circuit distinguished
Balkissoon v. Commissioner, 995 F.2d 525 (4th Cir. 1993), affg.
T.C. Memo. 1992-322, from Powell v. Commissioner, 958 F.2d 53, 56
(4th Cir. 1992), revg. and remanding an order of this Court. In
Powell, the Court of Appeals found that the notice of deficiency
was not delivered to or received by the taxpayers. In
Balkissoon, as in this case, the taxpayer received the notice of
deficiency in ample time to file a petition.
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deficiency is mailed (April 15, 1995), by adding 150 days from
April 15 petitioner has effectively added an additional day.
More accurately, the 150-day period is computed as follows:
Notice of deficiency mailed on April 14, 1995
Days Remaining Number of Days
April 15 through 30 16
May 1 through 31 31
June 1 through 30 30
July 1 through 31 31
August 1 through 31 31
Subtotal 139
September 1 through 11 11
Total 150
Thus, the 150th day after the mailing of the notice of deficiency
on April 14, 1995, is September 11, 1995.
In sum, petitioner failed to file her petition in a timely
manner, and, therefore, we will grant respondent's motion to
dismiss for lack of jurisdiction.8
To reflect the foregoing,
An order granting
respondent's motion to dismiss
for lack of jurisdiction will
be entered.
8
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 a refund with the Internal Revenue Service,
and, if the claim is denied, sue for a refund in the Federal
District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).