Scott v. Commissioner

T.C. Memo. 1996-544

UNITED STATES TAX COURT

JILL R. SCOTT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3072-96. Filed December 17, 1996.

Jill R. Scott, pro se.

Jordan S. Musen and Benjamin A. de Luna, for respondent.

MEMORANDUM OPINION

PANUTHOS, Chief Special Trial Judge: This matter is before

the Court on respondent's motion to dismiss for lack of

jurisdiction and petitioner's motion to restrain assessment and

collection. As explained in greater detail below, we shall grant

respondent's motion and deny petitioner's motion.

Background
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Three separate notices of deficiency were issued as follows:

On February 22, 1995, respondent issued a notice of

deficiency to petitioner determining a deficiency in her Federal

income tax for 1992 in the amount of $1,561 and an addition to

tax under section 6651(a)1 in the amount of $377.75. The notice

was mailed to petitioner at an address in Gainesville, Florida.

On October 25, 1995, respondent issued a joint notice of

deficiency to petitioner and her husband, Charles N. Scott,

determining a deficiency in their Federal income tax for 1993 in

the amount of $2,719 and an accuracy-related penalty under

section 6662(a) in the amount of $544. The notice was mailed to

P.O. Box 22338, Lake Buena Vista, Florida (the Lake Buena Vista

address).

On November 13, 1995, respondent issued a notice of

deficiency to Charles N. Scott determining a deficiency in his

Federal income tax for 1992 in the amount of $10,502 and

additions to tax in the amounts of $2,626 and $460 under sections

6651(a) and 6654, respectively. The notice was mailed to the

Lake Buena Vista address.

On February 20, 1996, petitioner and Charles N. Scott filed

a joint petition for redetermination with the Court.2 The

1
All section references are to the Internal Revenue Code
as amended. All Rule references are to the Tax Court Rules of
Practice and Procedure.
2
At the time the petition was filed, petitioner resided at
(continued...)
 - 3 -

petition states that the taxable year in dispute is 1992.

Attached to the petition is a copy of the notice of deficiency

dated November 13, 1995, which was issued to Charles N. Scott.

The petition was delivered to the Court in an envelope

bearing a U.S. Postal Service postmark dated February 13, 1996,

which date is 92 days after the mailing of the November 13, 1995,

notice.

On April 8, 1996, respondent filed a motion to dismiss for

lack of jurisdiction asserting that the petition was not filed

within the time prescribed in section 6213(a). On May 7, 1996,

petitioner and Charles N. Scott filed an objection to

respondent's motion asserting that the 90-day period for filing a

timely petition with the Court runs from the date of receipt of

the notice of deficiency. The objection includes arguments

directed at the merits of respondent's determinations respecting

the Scotts' tax liability for 1992 and 1993.

By order dated May 20, 1996, respondent's motion to dismiss

was granted in that the case was dismissed for lack of

jurisdiction as to Charles N. Scott (and his name was struck from

the caption) on the ground that the petition was not timely filed

with respect to the deficiency notice issued to him on November

13, 1995.

(...continued)
the Lake Buena Vista, Florida, address.
 - 4 -

On June 10, 1996, respondent issued a notice of intent to

levy to petitioner and Charles N. Scott demanding payment of

$3,948.29 in satisfaction of their tax liability for 1993.

Respondent subsequently filed a motion to dismiss for lack

of jurisdiction asserting that the notice of deficiency issued to

petitioner for 1992 is invalid on the ground that it was not

mailed to petitioner's last known address. Petitioner filed an

objection to respondent's motion to dismiss asserting that the

taxable years in dispute are 1992 and 1993 and that the notices

of deficiency for those years are invalid on the ground that they

have "no basis in material fact". Petitioner also filed a motion

to restrain assessment and collection.

Respondent maintains that the Court has no jurisdiction to

consider the validity of the notice of deficiency issued to

petitioner and Charles N. Scott for 1993 because the 1993 taxable

year was not placed in dispute in the petition.

This matter was called for hearing in Washington, D.C., at a

motions session of the Court. Counsel for respondent appeared at

the hearing and presented argument on the pending motions.

Although petitioner did not appear at the hearing, she did file a

written statement with the Court pursuant to Rule 50(c).
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Discussion

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Our

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 deficiency

notice is mailed to 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

(or 150 days if the notice is addressed to a person outside of

the United States) 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 issued a notice of deficiency to petitioner for

1992 on February 22, 1995. The petition was filed nearly 1 year
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later on February 20, 1996. Although it is evident that the

petition was not filed within the 90-day period prescribed in

section 6213(a), respondent concedes that the notice is invalid

because it was not issued to petitioner's last known address. We

accept respondent's concession, and we shall grant respondent's

motion to dismiss for lack of jurisdiction as to 1992 on this

ground.3

Respondent further contends that we lack jurisdiction in

this proceeding to consider the validity of the joint notice of

deficiency issued to petitioner and Charles N. Scott for the 1993

taxable year. In particular, respondent asserts that the Court

lacks jurisdiction over the 1993 taxable year because that year

was not placed in dispute in the petition. Petitioner contends

that the notice of deficiency for 1993 is invalid on the ground

that the notice of deficiency has "no basis in material fact".

Before expressing any opinion with respect to petitioner's

argument concerning the validity of the notice of deficiency for

1993, we must consider respondent's argument that the 1993

taxable year was not placed in dispute in this proceeding. The

note to Rule 41(a) states that the Court's jurisdiction over

parties and years in issue "is fixed by the petition as

originally filed or as amended within the statutory period for

3
Because we shall grant respondent's motion to dismiss for
lack of jurisdiction on the ground that the notice for 1992 was
not issued to petitioner's last known address, we do not consider
petitioner's contention that the notice for 1992 is invalid on
the ground that it lacks a basis in material fact.
 - 7 -

filing the petition". 60 T.C. 1089. We agree with respondent

that the petition filed in this case contains no mention of the

1993 taxable year--the only year placed in dispute in the

petition is the 1992 taxable year. Moreover, even if we were to

view petitioner's objection to respondent's motion to dismiss as

an attempt to amend the petition to place the 1993 year in

dispute, the objection was not filed within the statutory period

for filing the petition. In fact, the petition itself was not

timely filed with respect to either the notice of deficiency for

1992 or the notice of deficiency for 1993. There appears to be

no dispute that the joint notice of deficiency issued for the

1993 taxable year was sent to petitioner's last known address

(the same address reflected by petitioner in the petition).

In any event, petitioner's contention that the notice of

deficiency for 1993 is invalid plainly lacks merit. We

understand petitioner to contend that the notice is invalid on

the ground that respondent did not determine a deficiency within

the meaning of section 6212(a). See Scar v. Commissioner, 814

F.2d 1363 (9th Cir. 1987), revg. 81 T.C. 855 (1983).

Normally, the Court will not look behind the notice of

deficiency to examine the basis for the Commissioner's motives or

administrative policies or procedures in making the

determinations reflected in the notice. See Riland v.

Commissioner, 79 T.C. 185, 201 (1982); Greenberg's Express, Inc.

v. Commissioner, 62 T.C. 324, 327 (1974). However, in Scar v.
 - 8 -

Commissioner, supra at 1368, the Court of Appeals held that the

Commissioner must consider information that relates to a

particular taxpayer in order to determine a deficiency in respect

to that taxpayer. Subsequently, in Clapp v. Commissioner, 875

F.2d 1369, 1402 (9th Cir. 1989), the Court of Appeals commented

on its decision in Scar as follows:

Furthermore, as the Tax Court has since pointed
out, Scar did not even require any affirmative showing
by the Commissioner that a determination set forth in
an alleged notice of deficiency was made on the basis
of the taxpayers' return. Only where the notice of
deficiency reveals on its face that the Commissioner
failed to make a determination is the Commissioner
required to prove that he did in fact make a
determination. Campbell v. Commissioner, 90 T.C. 110
(1988). * * *

Based upon our review of the notice of deficiency for 1993,

we are satisfied that respondent determined a deficiency in

petitioner's tax liability within the meaning of section 6212.

In particular, the notice is addressed to petitioner and Charles

Scott, lists Charles Scott's Social Security number, and contains

an explanation that respondent disallowed specific amounts of

unsubstantiated deductions reported on the Scotts' 1993 tax

return. Considering all of the circumstances, we would conclude

that the notice of deficiency for 1993 is valid. See Stinnett v.

Commissioner, T.C. Memo. 1993-429.

As a final matter, we turn to petitioner's motion to

restrain assessment and collection. Section 6213(a) provides

that the Tax Court may enjoin the Commissioner's collection

efforts if the Commissioner is attempting to collect amounts that
 - 9 -

have been placed in dispute in a timely filed petition for

redetermination. Powerstein v. Commissioner, 99 T.C. 466, 471-

472 (1992); Powell v. Commissioner, 96 T.C. 707, 711 (1991). The

record reflects that the amount that respondent is attempting to

collect relates to petitioner's tax liability for 1993. Having

resolved that we lack jurisdiction over the taxable year 1993 in

this proceeding, it follows that we have no authority to enjoin

respondent's collection efforts. Accordingly, we shall deny

petitioner's motion to restrain assessment and collection.4

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

restrain assessment and

collection.

4
Although petitioner cannot pursue her case respecting her
tax liability for 1993 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).