T.C. Memo. 1997-224
UNITED STATES TAX COURT
JESSIE J. CHAMBERS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17806-96. Filed May 12, 1997.
Jessie J. Chambers, pro se.
Jordan S. Musen and William A. Blagg, 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 years in issue, unless otherwise indicated.
(continued...)
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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 filed December 9, 1996, and supplemented on April
14, 1997. Although respondent contends that this case must be
dismissed on the ground that petitioner failed to file his
petition within the time prescribed in section 6213(a),
petitioner argues that respondent failed to mail the notice of
deficiency to his last known address. Although it is evident
that we lack jurisdiction over the petition filed herein, we must
decide the proper ground for dismissal.
Background
On February 16, 1993, respondent mailed a notice of
deficiency to petitioner determining a deficiency of $7,166 in
his Federal income tax for 1990, and additions to tax in the
amounts of $1,619.25 and $421.06 pursuant to sections 6651(a) and
6654, respectively.2 The notice of deficiency was mailed to
1
(...continued)
All Rule references are to the Tax Court Rules of Practice and
Procedure.
2
There is a discrepancy in the record concerning the exact
mailing date of the notice of deficiency for 1990. Although the
notice of deficiency is dated Feb. 16, 1993, respondent submitted
a U.S. Postal Service Form 3877 which indicates that the notice
of deficiency was mailed on Feb. 11, 1993. Considering all of
(continued...)
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petitioner at 165 N. Fayette Dr., Fayetteville, Georgia 30214
(the Fayetteville address). The Fayetteville address is the
address listed on petitioner's 1987 tax return which is the last
return that petitioner filed prior to the mailing of the notice
of deficiency for 1990.
The notice of deficiency for 1990 was returned to respondent
undelivered, marked "Unclaimed", and listing a forwarding address
for petitioner of 2370 Ambassador Drive, Lithia Springs, Georgia
30057 (the Lithia Springs address)
On June 22, 1993, respondent mailed a notice of deficiency
to petitioner determining deficiencies in and additions to his
Federal income taxes for 1988 and 1989. Respondent mailed the
notice of deficiency to petitioner at the Fayetteville address.
On September 14, 1993, petitioner filed a timely petition for
redetermination with the Court (assigned docket No. 20017-93)
respecting the notice of deficiency for 1988 and 1989, listing
his address as the Lithia Springs address.
In January 1995, petitioner met with Revenue Officer Sharon
Pittman to discuss a levy that had been placed against his bank
account for taxes allegedly due for 1990. Petitioner advised
Revenue Officer Pittman that he was residing at the Lithia
2
(...continued)
the facts and circumstances, we conclude that the notice of
deficiency for 1990 was mailed on Feb. 16, 1993.
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Springs address and that his mailing address was P.O. Box 220,
Austell, Georgia 30001 (the Austell address).
On August 17, 1995, petitioner filed his 1994 tax return
listing the Lithia Springs address as his current address.
On September 15, 1995, respondent mailed a notice of
deficiency to petitioner determining deficiencies in, additions
to, and accuracy-related penalties with respect to his Federal
income taxes for 1991, 1992, and 1993 as follows:
Additions to Tax Accuracy-Related Penalty
Year Deficiency Sec. 6651(a) Sec. 6654 Sec. 6662
1991 $ 6,966 $1,082 $232 ---
1992 8,783 --- --- $1,757
1993 10,950 2,738 459 ---
Duplicate originals of the notice of deficiency were mailed to
petitioner at the Lithia Springs address and the Austell address.
On August 14, 1996, petitioner filed an imperfect petition
for redetermination with the Court contesting respondent's
determinations for the taxable years 1990, 1991, 1992, and 1993.
The petition was delivered to the Court in a U.S. Postal Service
Express Mail envelope bearing a U.S. Postal Service postmark date
of August 13, 1996.3 Petitioner subsequently filed a proper
amended petition.
As indicated, respondent filed a Motion to Dismiss For Lack
of Jurisdiction alleging that petitioner failed to file his
3
At the time that the petition was filed, petitioner
resided at the Fayetteville, Georgia, address.
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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 notices were not mailed to his
correct address. Respondent filed a response to petitioners'
objection countering that the deficiency notices were mailed to
petitioner's last known addresses.
A hearing was conducted at the Court's motions session in
Washington, D.C., on April 16, 1997. Counsel for respondent
appeared at the hearing and presented argument in support of the
pending motion. Although petitioner did not appear at the
hearing, he did file a written statement with the Court pursuant
to Rule 50(c). Petitioner's Rule 50(c) statement includes
allegations that, because petitioner and his wife separated and
reconciled a number of times during the period 1993 through 1995,
petitioner did not receive the notices of deficiency in question.
In particular, petitioner asserts that the notice of deficiency
for 1990 was mailed to his wife's address after one of their
separations, while the notice of deficiency for 1991, 1992, and
1993 was mailed to petitioner's former address after he had
reconciled with his wife and moved back to the Fayetteville
address. Although petitioner does not specify the date of the
purported communication, petitioner asserts that he left a
message for Revenue Officer Pittman in 1995 advising her that he
had moved back to the Fayetteville address. Respondent states
that she has no record of any such communication.
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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 for 1990 on
February 16, 1993, and the notice of deficiency for 1991, 1992,
and 1993 on September 15, 1995. The petition in this case was
postmarked August 13, 1996, and was received and filed by the
Court on August 14, 1996. Given that the petition was neither
mailed nor filed prior to the expiration of the 90-day statutory
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period for filing a timely petition with respect to either of the
notices of deficiency, it follows that we lack jurisdiction over
the petition. Secs. 6213(a) and 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 valid notices of deficiency under section 6212. Petitioner
contends that respondent failed to mail the notices of deficiency
to his last known address. We disagree.
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
burden of proving that a notice of deficiency was not sent to the
taxpayer at his or her last known address is on the taxpayer.
Yusko v. Commissioner, supra at 808.
There does not appear to be any dispute that the notice of
deficiency for 1990 was mailed to petitioner's correct address
but for his separation from his wife at the time the notice was
issued. In the absence of any evidence that petitioner notified
respondent that he was living at an address other than the
Fayetteville address at that time, we conclude that respondent
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mailed the notice of deficiency for 1990 to petitioner's last
known address and that such notice is valid under section 6212.
We are also satisfied that the notice of deficiency for
1991, 1992, and 1993 was mailed to petitioner's last known
address. The record indicates that in January 1995, petitioner
advised Revenue Officer Pittman that he was residing at the
Lithia Springs address and that his mailing address was the
Austell address. In addition, on August 17, 1995, petitioner
filed his 1994 tax return listing the Lithia Springs address as
his current address. We are unable to find that petitioner
provided respondent with clear and concise notice that he had
moved back to the Fayetteville address prior to the mailing of
the notice of deficiency on September 15, 1995. Under the
circumstances, we conclude that the notice of deficiency for
1991, 1992, and 1993 was mailed to petitioner at his last known
address. Consequently, we shall grant respondent's motion to
dismiss for lack of jurisdiction.4
To reflect the foregoing,
An order will be entered
granting respondent's Motion to
Dismiss for Lack of Jurisdiction.
4
Although petitioner cannot pursue his case in this Court,
he is not without a remedy. 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 the Federal District Court
or the U.S. Court of Federal Claims. See McCormick v.
Commissioner, 55 T.C. 138, 142 (1970).