McMahon v. Commissioner

T.C. Memo. 1996-523

UNITED STATES TAX COURT

POLLY PAUL McMAHON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3040-96. Filed November 27, 1996.

Polly Paul McMahon, pro se.

Jordan S. Musen and Amy A. Campbell, 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
Section references are to the Internal Revenue Code as
amended. Rule references are to the Tax Court Rules of Practice
and Procedure.
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agrees with and adopts the opinion of the Chief Special Trial

Judge, which is set forth below.

OPINION OF THE CHIEF SPECIAL TRIAL JUDGE

PANUTHOS, Chief Special Trial Judge: This matter is before

the Court on the parties' cross-motions to dismiss for lack of

jurisdiction. Respondent contends that this case should be

dismissed on the ground that the petition was not filed within

the 90-day period prescribed in section 6213(a), while petitioner

contends that dismissal should be based on respondent's failure

to issue a valid notice of deficiency as required 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 or about December 23, 1992, petitioner filed a joint

Federal income tax return with her husband, Terry McMahon, for

the taxable year 1990, listing her address as 2162 Ingleside

Avenue, Macon, Georgia 31204 (the 2162 Ingleside Avenue address).

Petitioner did not file tax returns for the taxable years 1991,

1992, or 1993. In April 1996, petitioner filed joint Federal

income tax returns with Terry McMahon for the taxable years 1994

and 1995, listing her address as 2128 S. Freya, Spokane,

Washington.
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During the period October 1994 through March 1995, Revenue

Agent Charles Caraway conducted an examination concerning

petitioner's tax liability for the taxable years 1991, 1992, and

1993. By letter dated October 12, 1994, Revenue Agent Caraway

invited petitioner to meet with him on October 24, 1994.

Petitioner did not appear for the meeting. After attempting to

contact petitioner by telephone, Revenue Agent Caraway received a

letter from Terry McMahon, purportedly acting as petitioner's

attorney-in-fact, requesting that Revenue Agent Caraway not

communicate with petitioner until after November 15, 1994. That

letter had the 2162 Ingleside address as the return address.

Revenue Agent Caraway made another attempt to arrange a meeting

with petitioner but apparently received no response. In March

1995, Revenue Agent Caraway prepared substitute returns computing

petitioner's tax liability for the years 1991, 1992, and 1993,

closed his file, and forwarded the matter to respondent's

District Director's office in Atlanta, Georgia.

During the period May through November 1995, Revenue Agent

Randie Bodner, then assigned to respondent's collection division

in Macon, Georgia, was responsible for collecting taxes from

petitioner and Terry McMahon for the years 1992 through 1995. On

June 29, 1995, Revenue Agent Bodner made a field visit to the

2162 Ingleside Avenue address and was advised by a receptionist

at that address that the McMahons had moved to a new address on
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Ingleside Avenue. Revenue Agent Bodner proceeded to 2411

Ingleside Avenue where she found Terry McMahon loading a moving

truck. Terry McMahon advised Revenue Agent Bodner that, although

the McMahons were using 2411 Ingleside Avenue as an office, they

were in the process of moving and were trying to find an

acceptable space in a nearby apartment complex. Due to

uncertainty as to where they would be moving, Terry McMahon was

unable to provide Revenue Agent Bodner with a new address but

advised that he would provide her with a forwarding address soon.

Revenue Agent Bodner took a partial financial statement from

Terry McMahon which includes a notation that the McMahons sold

the property located at 2162 Ingleside Avenue. Revenue Agent

Bodner made an appointment for Terry McMahon to visit her office

on July 12, 1995. On July 11, 1995, Terry McMahon advised

Revenue Agent Bodner that he would not be able to attend their

meeting because he would be out of town. Revenue Agent Bodner

did not hear from Terry McMahon again until she located him in

Spokane, Washington, on March 8, 1996. Revenue Agent Bodner had

no contact with Revenue Agent Caraway during the period in

question.

Due to uncertainties as to where the McMahons would be

moving, Terry McMahon arranged to have mail addressed to 2411

Ingleside Avenue forwarded to a private mail box that he opened

with Mail Boxes, Etc., in Macon, Georgia. Terry McMahon planned
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to contact Mail Boxes, Etc., periodically for the purpose of

having such mail forwarded to him at his new location. Mail

Boxes, Etc., moved its facilities from 4524 Forsyth Rd., Suite

201, in Macon, Georgia, to 5962 Zebulon Rd., #201, in the same

city.

On November 15, 1995, respondent mailed a notice of

deficiency to petitioner by certified mail determining

deficiencies in and additions to petitioner's Federal income

taxes for the years and in the amounts as follows:

Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654

1991 $59,408 $14,668 $3,387
1992 82,876 20,684 3,613
1993 24,969 6,217 1,041

The notice of deficiency was mailed to petitioner at the 2162

Ingleside Avenue address. On November 16, 1995, the notice of

deficiency was forwarded to 2411 Ingleside Avenue. On November

17, 1995, the notice of deficiency was forwarded to Mail Boxes,

Etc., 4524 Forsyth Rd., Suite 201, Macon, Georgia. On November

22, 1995, the notice of deficiency was forwarded to Mail Boxes,

Etc., 5962 Zebulon Rd., #201, Macon, Georgia. On November 24,

1995, Christie Shackleford, an employee of Mail Boxes, Etc.,

accepted delivery of the envelope bearing the notice of

deficiency.

The envelope bearing the notice of deficiency was eventually

forwarded to petitioner in Spokane, Washington. The record does
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not reflect the date that petitioner personally received the

notice of deficiency.

Petitioner filed a petition for redetermination with the

Court on February 20, 1996. The petition arrived at the Court in

an envelope bearing a U.S. postmark dated February 14, 1996. At

the time the petition was filed, petitioner resided in Spokane,

Washington.

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 was not mailed to her correct

last known address, which she identifies as the 2411 Ingleside

Avenue address. Respondent filed a response to petitioner's

objection countering that the deficiency notice was mailed to

petitioner's last known address. Petitioner filed a Motion to

Dismiss for Lack of Jurisdiction on the ground that the notice of

deficiency is invalid.

A hearing was conducted in this case in Washington, D.C.

Counsel for respondent appeared at the hearing and presented

argument in support of respondent's motion to dismiss. Although

petitioner did not appear at the hearing, her position is clearly

articulated in her motion to dismiss, her objection to
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respondent's motion to dismiss, as well as other papers filed

herein.

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).

Respondent mailed the notice of deficiency to petitioner on

November 15, 1995. The envelope bearing the petition was

postmarked February 14, 1996, and the petition was filed by the
 - 8 -

Court on February 20, 1996. The 90-day period prescribed in

section 6213(a) for filing a timely petition in this case expired

on Tuesday, February 13, 1996, which date was not a holiday in

the District of Columbia. 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. Keeton v.

Commissioner, 74 T.C. 377, 379 (1980).

Petitioner contends that the notice is invalid because it

was not mailed to her last known address. 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. In this regard, petitioner

contends that Terry McMahon's conversation with Revenue Agent

Bodner on June 29, 1995, provided respondent with clear and
 - 9 -

concise notice of petitioner's change of address to 2411

Ingleside Avenue.

Considering all the facts and circumstances, we need not

resolve whether respondent was provided with clear and concise

notice of petitioner's change of address. As explained in

greater detail below, we conclude that, even assuming arguendo

that the 2411 Ingleside Avenue address constituted petitioner's

last known address, the notice of deficiency was delivered to

that address without prejudicial delay.

It is well settled that, although a deficiency notice

properly mailed to a taxpayer's last known address provides the

Commissioner with a "safe harbor" under section 6212(b), an

improperly addressed notice is nonetheless valid if the taxpayer

receives actual notice of the Commissioner's deficiency

determination in a timely fashion i.e., without prejudicial

delay. See Mulvania v. Commissioner, 81 T.C. 65, 67-68 (1983)

(erroneously addressed notice is valid under section 6212(a)

where the taxpayer received the notice 16 days after it was

mailed). Consistent with the foregoing, the Court of Appeals for

the Ninth Circuit, the court to which this case is appealable,

observed:

Reading the interrelated sections of the Code as
an integrated whole, it is apparent that the
legislative plan contemplates that actual notice of the
deficiency should be given where such can reasonably be
achieved and that the mailing authorized by section
6212(a) is a means to that end. * * * A mailing that
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effectively results in actual notice is what is
apparently contemplated by the legislative plan.

Clodfelter v. Commissioner, 527 F.2d 754, 756 (9th Cir. 1975),

affg. 57 T.C. 102 (1971).

As previously discussed, respondent mailed the notice of

deficiency to petitioner at 2162 Ingleside Avenue on November 15,

1995. The notice was forwarded to the 2411 Ingleside Avenue

address one day later. However, consistent with Terry McMahon's

directions, all mail addressed to 2411 Ingleside Avenue,

including the notice of deficiency, was forwarded to Mail Boxes,

Etc. Delivery of the envelope bearing the notice was accepted by

an employee of Mail Boxes, Etc., on November 24, 1995. The

notice of deficiency was later forwarded by Mail Boxes, Etc., to

petitioner in Spokane, Washington.

Notwithstanding the circuitous route by which the notice of

deficiency arrived at Mail Boxes, Etc., it is evident that the

mailing of the notice of deficiency to 2162 Ingleside Avenue did

not materially affect the delivery of the notice to petitioner.

The notice was forwarded to and arrived without apparent delay at

2411 Ingleside Avenue, the address which petitioner has

identified as her last known address. See Yusko v. Commissioner,

supra at 810; see also Needham v. Commissioner, T.C. Memo. 1993-

440. The notice was destined to be forwarded again to Mail

Boxes, Etc., even if it had been addressed to petitioner at 2411

Ingleside Avenue. The notice of deficiency was actually received
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at Mail Boxes, Etc., on November 24, 1995--only 9 days after the

notice was mailed.

Although the record does not reveal the exact date that Mail

Boxes, Etc., forwarded the notice of deficiency to petitioner,

such factor would not affect the result in this case. Petitioner

does not dispute that Mail Boxes, Etc., was authorized to accept

delivery of the deficiency notice on her behalf. If Mail Boxes,

Etc., delayed sending the notice of deficiency to petitioner, any

prejudice is attributable to the inaction of her agent. As we

see it, such inaction, like that of a taxpayer who refuses to

accept delivery of a notice of deficiency, would not render the

notice invalid. See, e.g., Erhard v. Commissioner, 87 F.3d 273

(9th Cir. 1996), affg. T.C. Memo. 1994-344; Patmon & Young

Professional Corp. v. Commissioner, 55 F.3d 216 (6th Cir. 1995),

affg. T.C. Memo. 1993-143.

In sum, even assuming arguendo that petitioner's last known

address was 2411 Ingleside Avenue as she contends, we conclude

that the notice of deficiency was delivered to that address

without prejudicial delay. Consequently, we will grant

respondent's Motion to Dismiss for Lack of Jurisdiction and we

will deny petitioner's Motion to Dismiss for Lack of

Jurisdiction.2

2
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 refund with the Internal Revenue Service,
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To reflect the foregoing,

An order will be entered

granting respondent's Motion to

Dismiss for Lack of Jurisdiction

and denying petitioner's Motion to

Dismiss for Lack of Jurisdiction.

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).