T.C. Memo. 1996-474
UNITED STATES TAX COURT
WARREN RICHARD FOLLUM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7975-96. Filed October 22, 1996.
Warren Richard Follum, pro se.
Jordan S. Musen and Paul G. Topolka, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This case was assigned
pursuant to the provisions of section 7443A(b)(3) and Rules 180,
181, and 183.1
This matter is before the Court on respondent's motion to
dismiss for lack of jurisdiction, petitioner's motion to dismiss
1
All section references are to the Internal Revenue Code in
effect for the years in issue, unless otherwise indicated. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
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for lack of jurisdiction, and petitioner's motion to restrain
collection. Although respondent contends that this case must be
dismissed on the ground that petitioner failed to file his
petition within the 90-day period prescribed in section 6213(a),
petitioner argues that dismissal should be based on respondent's
failure to issue a valid notice of deficiency under section 6212.
There being no question that we lack jurisdiction over the
petition filed herein, we must resolve the parties' dispute
respecting the proper ground for dismissal. Because we lack
jurisdiction in this case, it follows, as discussed in greater
detail below, that we likewise lack the authority to restrain
collection in this case.
Background
In June 1994, respondent mailed a letter to petitioner at
274 Stoneycreek Drive, Rochester, New York (the Rochester
address), proposing adjustments to his Federal income taxes for
the years 1991, 1992, and 1993. Petitioner listed the Rochester
address on his tax returns for the years 1990, 1991, 1992, and
1993 and continued to reside at that address until April 1995.
In April 1995, petitioner moved to Wilmington, North
Carolina, in search of work. In the meantime, petitioner filed
his 1994 Federal income tax return in March 1995 listing his
address as P.O. Box 3673, Wilmington, North Carolina 28406-0673
(the Wilmington address).
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In early August 1995, petitioner closed the Wilmington post
office box and moved to 4997 Creek Road, Lewiston, New York (the
Lewiston address).
On August 29, 1995, respondent mailed a letter to petitioner
at the Wilmington address stating that petitioner's tax returns
for 1990, 1991, 1992, and 1993 had been selected for audit and
requesting that petitioner appear at respondent's offices in
Wilmington on September 26, 1995. Petitioner maintains that he
did not receive this letter. Respondent's files do not indicate
that the letter was returned to respondent undelivered.
On September 27, 1995, respondent issued a second letter to
petitioner at the Wilmington address proposing adjustments to
petitioner's taxes for the years 1990, 1991, 1992, and 1993.
Petitioner maintains that he did not receive this letter.
Respondent's files do not indicate that the letter was returned
to respondent undelivered.
On November 3, 1995, respondent mailed two separate notices
of deficiency2 to petitioner determining deficiencies in and an
addition to his Federal income taxes for the taxable years 1990,
1991, 1992, and 1993 as follows:
2
One of the notices includes the determination for 1990, and
the other notice includes the determination for 1991, 1992, and
1993.
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Addition to Tax
Year Deficiency Sec. 6651(a)(1)
1990 $4,107 ---
1991 7,233 ---
1992 4,790 $832
1993 3,232 ---
The notices of deficiency were mailed to petitioner in a single
envelope addressed to petitioner at the Wilmington address as
listed in petitioner's 1994 tax return--the last return filed by
petitioner prior to the mailing of the above-described notices of
deficiency.
Petitioner concedes that he did not provide respondent with
notice of his change of address to the Lewiston address between
the time that he filed his 1994 tax return and the date that
respondent mailed the above-described notices of deficiency.
On February 23, 1996, the envelope bearing the notices of
deficiency was returned to respondent undelivered and marked "BOX
CLOSED UNABLE TO FORWARD RETURN TO SENDER". There is no
explanation in the record why it took the U.S. Postal Service
over 3 months to return to respondent the envelope bearing the
undelivered notices of deficiency. In any event, upon receipt of
the undelivered notices of deficiency, respondent's agents
conducted a computer search in an effort to obtain petitioner's
correct address. As a result of that search, and relying upon
information reported to respondent by third parties on Forms 1099
and W-2, respondent mailed copies of the notices of deficiency to
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petitioner at the Rochester address. Apparently there was an
outstanding forwarding request with the U.S. Postal Service from
the Rochester address to the Lewiston address. Petitioner
received the copies of the notices sent at this point when they
were forwarded to the Lewiston address.
Petitioner filed a petition for redetermination with the
Court on April 29, 1996. The petition was delivered to the Court
in an envelope bearing a U.S. Postal Service postmark date of
April 24, 1996.3
On June 17, 1996, respondent mailed separate notices of
intent to levy to petitioner in respect of his tax liabilities
for 1990, 1991, 1992, and 1993. These notices were mailed to
petitioner at the Lewiston address.
As indicated, respondent filed a motion to dismiss for lack
of jurisdiction alleging that petitioner failed to file his
petition within the 90-day period prescribed in section 6213(a).
Petitioner filed both an objection to respondent's motion to
dismiss and his own motion to dismiss for lack of jurisdiction
alleging that the notices of deficiency were not mailed to his
correct address. Petitioner asserts that his last known address
is the Rochester address--the address appearing on the tax
3
At the time the petition was filed, petitioner resided at
Lewiston, New York.
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returns for the years in issue. In addition, petitioner filed a
motion to restrain collection.
A hearing was conducted in this case in Washington, D.C.
Petitioner and counsel for respondent appeared at the hearing and
presented argument in respect of the pending motions.
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 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). If a notice of deficiency is mailed to the taxpayer at
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 is mailed to file a petition in this Court for a
redetermination of the deficiency. Sec. 6213(a).
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Respondent mailed the notices of deficiency in this case on
November 3, 1995. The petition in this case was postmarked April
24, 1996, and was filed by the Court on April 29, 1996. 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. As
previously indicated, petitioner contends that respondent failed
to mail the notices of deficiency to his last known address. We
disagree.
Petitioner contends that his last known address was the
Rochester address--the address listed in his tax returns for the
years in issue. Although the phrase "last known address" is not
defined in the Internal Revenue Code or in the regulations, 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 taxpayer bears the burden of
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proving that a notice of deficiency was not sent to his last
known address. Yusko v. Commissioner, supra at 808.
Contrary to petitioner's position, we conclude that the
notices of deficiency were mailed to his last known address.
Respondent mailed the notices of deficiency to petitioner at the
Wilmington address--the address appearing on petitioner's 1994
tax return, which was the last return filed by petitioner prior
to the mailing of the notices of deficiency. Moreover,
petitioner concedes that, after filing his 1994 tax return but
prior to the mailing of the notices of deficiency, he did not
provide respondent with clear and concise notice that he intended
for respondent to correspond with him at any address other than
the Wilmington address.
Petitioner erroneously relies on Armstrong v. Commissioner,
15 F.3d 970 (10th Cir. 1994), affg. T.C. Memo. 1992-328, for the
proposition that his last known address is the address appearing
on his tax returns for the years in issue. Specifically,
Armstrong v. Commissioner, supra at 974, includes a statement,
consistent with the principle articulated above, that the address
on the taxpayer's most recent tax return is ordinarily treated as
the taxpayer's last known address. Although the court in
Armstrong held that the address appearing on the taxpayer's tax
returns for the years in issue constituted the taxpayer's last
known address, it did so only after finding that the revenue
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agent had alertly discovered that the address appearing on the
taxpayer's most recent tax return was nonexistent. Id. In this
regard, petitioner's reliance on Armstrong is misplaced.
Petitioner also contends that respondent did not exercise
reasonable diligence in ascertaining his correct address.
Underlying this argument is petitioner's assumption that
respondent was aware, prior to issuing the notices of deficiency,
that the Wilmington address was incorrect. In particular,
petitioner contends that, because he did not receive the two
letters that respondent mailed to him at the Wilmington address
during August and September 1995, those letters must have been
returned to respondent undelivered. However, we are unable to
conclude, on the record presented, that the letters in question
were returned to respondent undelivered. In short, respondent
has no record in her files indicating that the letters were
returned undelivered, and petitioner presented no evidence to
show otherwise. Under the circumstances, we are not persuaded
that respondent failed to exercise reasonable diligence in
ascertaining petitioner's correct address.
In accordance with the preceding discussion, we hold that
respondent mailed the notices of deficiency to petitioner at his
last known address. As a consequence, we will grant respondent's
motion to dismiss for lack of jurisdiction on the ground that
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petitioner failed to file a timely petition for redetermination,
and we will deny petitioner's motion to dismiss.4
With the foregoing as background, we turn to petitioner's
motion to restrain collection. Under section 6213(a), our
jurisdiction to restrain the Commissioner from assessing or
collecting a tax deficiency is limited to cases where "a timely
petition for redetermination of the deficiency has been filed and
then only in respect of the deficiency that is the subject of
such petition." See Powerstein v. Commissioner, 99 T.C. 466, 471
(1992); Powell v. Commissioner, 96 T.C. 707, 710-711 (1991).
Because petitioner failed to file a timely petition for
redetermination, it follows that we lack the authority to
restrain respondent from collecting taxes for the years in
question.
To reflect the foregoing,
An order will be entered
granting respondent's motion to
dismiss for lack of jurisdiction,
denying petitioner's motion to
dismiss for lack of jurisdiction,
4
Although petitioner cannot pursue his case in this Court, he
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 Federal District Court
or the U.S. Court of Federal Claims. See McCormick v.
Commissioner, 55 T.C. 138, 142 (1970).
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and denying petitioner's motion to
restrain collection.