Onah v. Commissioner

T.C. Memo. 1997-514

UNITED STATES TAX COURT

JUSTICE JAMES AND LISA ONAH, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1546-97. Filed November 14, 1997.

Justice James Onah, pro se.

Mark A. Weiner, for respondent.

MEMORANDUM OPINION

NAMEROFF, Special Trial Judge: This case was heard pursuant

to the provisions of section 7443A(b)(3)1 and Rules 180, 181, and

183. This case is before the Court on respondent’s motion to

dismiss for lack of jurisdiction and to strike as to taxable year

1993. Respondent’s motion is based upon petitioners’ failure to

1
All section references are to the Internal Revenue Code.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
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file their petition for 1993 within the time period prescribed by

section 6213(a).

Background

Justice James Onah (petitioner) and Mrs. Onah filed a joint

1995 Federal income tax return, Form 1040, with the Internal

Revenue Service at Fresno, California, on April 24, 1996.

Petitioners set forth therein that their address was 11684

Ventura Blvd., Apt. 348, Studio City, CA 91604 (the Studio City

address). On May 30, 1996, respondent mailed to petitioners a

letter advising them that their 1994 Federal income tax return

was selected for examination and requesting that they contact

“the person named above” within 10 days to arrange an

appointment. The May 30, 1996, letter was addressed to

petitioners at 21405 Devonshire St., Suite 213, Chatsworth, CA

91311-2940 (the Chatsworth address).

Petitioner mailed a letter dated July 9, 1996, addressed to

“IRS, 300 N. Los Angeles St., Los Angeles, Ca 90001" in which he

made reference to a letter dated May 19, 1996. The record does

not reflect any letter dated May 19, 1996. Petitioner’s July 9,

1996, letter contains the statement “We are responding beyond the

10 days stated in your letter because we did not receive your

request in time as it was sent to our previous address and

therefore delayed getting to us.” The letter dated July 9, 1996,

contains in the upper right hand corner the following address:
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20134 Leadwell St., #222, Winetka, CA 91306 (the Winetka

address).

On July 18, 1996, respondent sent, by certified mail, a

notice of deficiency to petitioners for taxable year 1993,

determining a deficiency in the amount of $5,227. That notice of

deficiency was mailed to petitioners at the Studio City address.

Subsequently, on December 6, 1996, respondent mailed, by

certified mail, a notice of deficiency for taxable year 1994,

determining a deficiency of $10,732 and a section 6662(a) penalty

of $2,146. Like the 1993 notice of deficiency, the 1994 notice

of deficiency was sent to petitioners at the Studio City address.

The petition herein was filed on January 27, 1997, timely with

regard to the 1994 notice of deficiency but 103 days after the

mailing of the 1993 notice of deficiency.

At the hearing in this matter, petitioner testified that

petitioners moved from the Studio City apartment to the Winetka

address (which is the address set forth on the petition) on or

about July 1, 1996. He stated that they did have a forwarding

order on record with the post office. He also testified as to a

rather unusual mail distribution scheme at the Studio City

apartment complex.

According to petitioner, the manager of the Studio City

apartment complex went to the post office and picked up the mail

for the complex. She then would return to the complex to
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distribute the mail. In accordance with this procedure, the

apartment manager would routinely sign for certified mail

deliveries at the post office without paying attention to whether

the addressee was currently a resident of the apartment complex.

If she ultimately discovered that an addressee was no longer

residing at the apartment complex, however, she would retain the

mail and not forward it or return it to the post office.

Petitioner stated that, from time to time, he would stop in

at his former address in Studio City to see if there was any mail

for him that had not been forwarded by the post office. For

example, petitioner stated that the post office would not forward

magazines, and he would from time to time stop in and pick up

these magazines. In accordance with this procedure, after the

mailing of the 1994 notice of deficiency, petitioner stopped in

at the Studio City apartment complex and obtained from the

manager both notices of deficiency, whereupon petitioners

promptly filed the petition herein.

Under these circumstances respondent contends that the

petition was untimely with respect to 1993 and should be

dismissed for lack of jurisdiction, and that all references to

1993 in the petition should be stricken. Petitioners, on the

other hand, contend that because July 9, 1996, letter contained

the Winetka address, respondent was on notice that petitioners

had a new address. He therefore contends that the 1993 notice of
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deficiency was not sent to their last known address and was a

nullity.2

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'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 was mailed to

2
In this regard, we note that even though a notice of
deficiency is not mailed to the taxpayer’s last known address, if
the taxpayer timely files a petition with respect thereto, the
petition is timely and we have jurisdiction thereof.
Accordingly, the use of the Studio City address does not affect
the validity of the 1994 notice.
 - 6 -

file a petition in this Court for a redetermination of the

deficiency. Sec. 6213(a).

Neither the Internal Revenue Code nor the regulations

promulgated thereunder define the phrase "last known address".

However, this Court has defined the phrase to mean "the

taxpayer's last permanent address or legal residence known by the

Commissioner, or the last known temporary address of a definite

duration to which the taxpayer has directed the Commissioner to

send all communications during such period." Brown v.

Commissioner, 78 T.C. 215, 218 (1982). In general, that address

will be the address reflected on the taxpayer's most recently

filed Federal income tax return, absent clear and concise

notification of a different address. Abeles v. Commissioner, 91

T.C. 1019, 1035 (1988); Weinroth v. Commissioner, 74 T.C. 430,

435 (1980); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367,

374 (1974), affd. without published opinion 538 F.2d 334 (9th

Cir. 1976). The taxpayer has the burden of proving that the

notice of deficiency was not sent to his last known address.

Yusko v. Commissioner, supra at 808.

Once the Commissioner becomes aware of an address other than

the one on the taxpayer's return, the Commissioner must exercise

reasonable care and due diligence in ascertaining the correct

address. Pyo v. Commissioner, 83 T.C. 626 (1984). Whether the

Commissioner has done so is a question of fact. Weinroth v.
 - 7 -

Commissioner, supra. Although the Commissioner must exercise

reasonable diligence in ascertaining the taxpayer's correct

address, the burden necessarily falls upon the taxpayer to keep

the Commissioner informed of his correct address. Ramirez v.

Commissioner, 87 T.C. 643 (1986); Alta Sierra Vista, Inc. v.

Commissioner, supra. As we have stated, "when a taxpayer changes

his address it is he who must notify the Commissioner of such

change or else accept the consequences". Alta Sierra Vista, Inc.

v. Commissioner, supra at 374.

In this case, it is undisputed that petitioner’s last filed

return prior to the mailing of the 1993 notice of deficiency

reflected the Studio City address. Accordingly, the Studio City

address was petitioner’s last known address unless petitioner

gave respondent clear and concise notification that his address

had changed. Petitioner relies on the July 9, 1996, letter

reflecting a new address in the upper right hand corner. We do

not consider this clear and concise notification that

petitioner’s address had changed. King v. Commissioner, supra at

681; Alta Sierra Vista, Inc. v. Commissioner, supra.

First, the letter is addressed to the Internal Revenue

Service (IRS) at its general mailing address and is not addressed

to any particular department or individual. The record does not

reflect what happens to letters so addressed. Respondent does

not acknowledge having received that letter. Indeed, we do not
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even know when that letter was mailed, much less when it was

received. Moreover, even if respondent had received the July 9,

1996, letter several days later, it is unlikely that there would

have been sufficient time to update petitioners’ address into

respondent’s computer records.3 See Williams v. Commissioner,

T.C. Memo. 1989-439, affd. 935 F.2d 1066 (9th Cir. 1991).

Accordingly, we find that petitioner’s last known address on

July 18, 1996, was the Studio City address, and that the 1993

notice of deficiency was sent to petitioner’s last known address.

Accordingly, we hold that the petition is untimely filed with

respect to 1993, and respondent’s motion will be granted.4

An appropriate order

will be issued.

3
We also have our doubts regarding the veracity of
petitioner’s testimony regarding receipt of the 1993 notice of
deficiency. We question why petitioner did not receive the 1993
notice of deficiency much earlier than December, if he in fact
stopped at his former address “from time to time”.

4
Although petitioner cannot pursue his 1993 case in this
Court, he is not without remedy. In short, petitioner may pay
the tax, file a claim for refund with the IRS, and if the claim
is denied, sue for a refund in the U.S. District Court or the
U.S. Court of Federal Claims. See McCormick v. Commissioner, 55
T.C. 138, 142 (1970).