T.C. Memo. 1996-188
UNITED STATES TAX COURT
MANJIT S. AND RAVINDER K. AULAKH, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6764-95. Filed April 18, 1996.
Manjit S. and Ravinder K. Aulakh, pro sese.
Richard S. Goldstein, Lynne Camillo, and Bryce A. Kranzthor,
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
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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 Manjit S. and
Ravinder K. Aulakh (petitioners) failed to file their petition
with this Court within the time prescribed by section 6213(a),
petitioners 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 June 16, 1994, respondent mailed a joint notice of
deficiency to petitioners. In the notice, respondent determined
a deficiency in petitioners' Federal income tax for the taxable
year 1992 in the amount of $8,236, as well as an accuracy-related
penalty under section 6662(a) in the amount of $1,647.
The notice of deficiency was mailed to petitioners by
certified mail in duplicate form at two separate addresses: (1)
318 Hale Street, San Francisco, California 94134 (the Hale St.
address); and (2) 251 Girard Street, Unit 101, San Francisco,
California 94134 (the Girard St. address).
The Hale St. address is the address listed on petitioners'
income tax return for 1992. Petitioners filed that return with
respondent on July 23, 1993. Petitioners did not file their
income tax return for 1993 until November 7, 1994. Thus,
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petitioners' 1992 tax return was the last tax return filed by
petitioners before the notice of deficiency was issued.
The Girard St. address is the address listed by petitioners
on a Form 4868 (Application for Automatic Extension of Time To
File U.S. Individual Income Tax Return) in respect of the taxable
year 1993. The Form 4868 was filed with respondent on April 15,
1994. The Girard St. address is also listed as the address of
petitioner Manjit S. Aulakh in a stipulated decision that said
petitioner executed on April 1, 1994, and that was subsequently
entered by this Court in Aulakh v. Commissioner, docket No.
15875-93S.
The envelopes bearing the duplicate notices of deficiency
that were mailed to the Hale St. address and to the Girard St.
address were returned to respondent by the U.S. Postal Service on
June 16, 1994, marked "Unclaimed".
On April 10, 1995, respondent mailed petitioners a Notice of
Intent to Levy in respect of their tax liability for 1992.
Petitioners attached the Notice of Intent to Levy to their
imperfect petition, which was filed with the Court on May 1,
1995. Such petition was delivered to the Court in an envelope
bearing a U.S. Postal Service postmark date of April 21, 1995.2
Petitioners subsequently filed a proper amended petition.
2
At the time that the petition was filed with the Court,
petitioners resided at 2420 San Bruno Ave., San Francisco, CA.
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As indicated, respondent filed a Motion to Dismiss For Lack
of Jurisdiction in which she asserts that petitioners failed to
file their petition within the 90-day period prescribed by
section 6213(a). Petitioners filed an objection to respondent's
motion in which they assert that the notice of deficiency was not
mailed to them at their last known address. In this objection,
petitioners identify their last known address as 2420 San Bruno
Ave., San Francisco, California. Respondent filed a response to
petitioners' objection in which she asserts that the notice of
deficiency was mailed to petitioners at their last known address.
Hearings were conducted in this case in Washington, D.C.
Counsel for respondent appeared at the hearings and presented
argument in support of the pending motion. Although petitioners
did not appear at the hearings, they 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
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notice of deficiency to the taxpayer at 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 by certified
or registered mail to a taxpayer at the taxpayer's last known
address, it is valid even if the taxpayer does not actually
receive it. 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. In turn,
the taxpayer generally 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 duplicate notices of deficiency
involved herein on June 16, 1994. The petition was postmarked
April 21, 1995, and was filed by the Court on May 1, 1995. Given
the fact that the petition was neither mailed nor filed before
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 the dismissal of the
present case should be premised on petitioners' 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. In
this regard, petitioners contend that respondent failed to mail
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the notice of deficiency to them at their last known address. We
disagree.
Although the phrase "last known address" is not defined in
the Internal Revenue Code or in the regulations thereunder, we
have held 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 a taxpayer at the taxpayer's last
known address is on the taxpayer. Yusko v. Commissioner, supra
at 808.
Contrary to petitioners' view of the matter, we conclude
that the notice of deficiency was mailed to them at their last
known address. In this regard, respondent mailed duplicate
notices of deficiency to petitioners. One of the notices was
mailed to the address appearing on their 1992 tax return (the
Hale St. address) and the other notice was mailed to the address
appearing on the Form 4868 (in respect of the taxable year 1993)
that petitioners filed with respondent on April 15, 1994 (the
Girard St. address). The record clearly shows that petitioners'
1992 tax return was the last tax return that petitioners filed
before the notice of deficiency was issued. Moreover,
petitioners failed to produce any evidence showing that they
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provided respondent with clear and concise notification that they
intended for respondent to correspond with them at any address
other than either the Hale St. address or the Girard St. address.
Because the notice of deficiency was mailed to petitioners
at their last known address, we shall grant respondent's Motion
to Dismiss for Lack of Jurisdiction.3
In order to reflect the foregoing,
An order will be entered
granting respondent's Motion to
Dismiss for Lack of Jurisdiction.
3
Although petitioners cannot pursue their case in this
Court, they are not without a legal remedy. In short,
petitioners 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 U.S. Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).