Clevenger v. Commissioner

T.C. Memo. 1998-37

UNITED STATES TAX COURT

DONNA C. CLEVENGER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6677-95. Filed January 28, 1998.

Donna C. Clevenger, pro se.

Richard A. Rappazzo, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Norman H. Wolfe pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183. All section references

are to the Internal Revenue Code in effect for the tax years in
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issue, unless otherwise indicated. All Rule references are to

the Tax Court Rules of Practice and Procedure. The Court agrees

with and adopts the opinion of the Special Trial Judge, which is

set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

WOLFE, Special Trial Judge: This matter is before the Court

on respondent's motion to dismiss for lack of jurisdiction.

Petitioner contends that this Court lacks jurisdiction because

the notice of deficiency mailed to her by respondent was not sent

to her last known address within the meaning of section

6212(b)(1). Respondent's position is that this Court lacks

jurisdiction because petitioner failed to file a timely petition

within the time prescribed in section 6213(a) or section 7502.

Background

Respondent determined deficiencies in petitioner's Federal

income taxes for the taxable years 1979, 1980, and 1981, and

additions to tax as follows:

Addition to Tax
Year Deficiency Sec. 6653(b) Sec. 6654

1979 $6,575 $3,287 $274
1980 2,120 1,060 136
1981 10,689 5,345 817

The evidence in this case consists of a stipulation of facts

with attached exhibits (incorporated herein by reference) and

oral testimony presented at the hearing on the parties' cross-

motions.
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Respondent's notice of deficiency is dated April 13, 1984.

The petition in this case was filed on April 18, 1995, that is,

4,032 days, or approximately 11 years, after the mailing of the

notice of deficiency. Petitioner resided in Peoria, Arizona,

when her petition was filed. Petitioner filed an amended

petition pertaining to those same years (1979 through 1981) on

June 26, 1995.

Respondent's notice of deficiency was sent to petitioner by

certified mail addressed as follows: Donna Clevenger, 20935 Bell

Avenue, Lakeview, California 92353 (hereafter the Bell Avenue

address). Respondent asserts that this address was on

petitioner's last filed tax return. The property located at the

Bell Avenue address consisted of a mobile home that was owned by

petitioner and her husband and was situated on 2-1/2 acres of

land.

Petitioner resided with her husband, Coy A. Clevenger, at

all times at issue and until his death in 1992. Petitioner's

last filed return prior to the issuance of the statutory notice

of deficiency was the 1978 return filed jointly with her husband

on February 2, 1983. Petitioner did not file a Federal income

tax return either individually or jointly with her husband for

the taxable years 1979, 1980, and 1981. At respondent's request,

the Fresno Service Center, the service center with which

petitioner was required to file her Federal income tax returns

during the years at issue, conducted a diligent search of its
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records and determined that the original as well as any copies of

any joint income tax returns (Form 1040) filed by petitioner for

the years prior to and including the 1978 taxable year had been

routinely destroyed by respondent after a 7-year retention

period. Petitioner did not produce a copy of her 1978 joint

income tax return at trial. There is no evidence in the record

that the notice of deficiency ever was returned to respondent as

undeliverable.

Petitioner claims that at the time of the issuance of the

notice of deficiency in April 1984, her last known address, to

which the notice of deficiency should have been sent, was "30840

Apricot Avenue, Nuevo, California" (hereafter the Apricot

address). According to petitioner, she and her husband moved

from the Bell Avenue address to the Apricot address in mid-

January 1983, and therefore the Apricot address would have been

the address on her 1978 joint income tax return. Petitioner

testified that the property located at the Apricot address was a

horse ranch known as Solar View Farms owned by Rick Fritz.

Petitioner claims that she and her husband lived in a house on

the property in exchange for taking care of the ranch and the

horses. Mr. Fritz did not testify at the hearing.

On February 13, 1984, petitioner and her husband filed a

voluntary petition in bankruptcy with the U.S. Bankruptcy Court

for the Central District of California. On March 6, 1984,

petitioner and her husband filed with the bankruptcy court a
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"Statement of Affairs of Debtor Not Engaged in Business", dated

and executed on February 10, 1984, in which petitioner and her

husband stated that they resided at the Bell Avenue address from

1978 until June 1983. On February 10, 1984, petitioner and her

husband also executed a "Statement of Compensation Paid For

Assistance in Connection with the Filing of the Bankruptcy Case

Pursuant to Local Bankruptcy Rule 221", promptly thereafter filed

with the bankruptcy court. This statement identified the Bell

Avenue address as real property owned by petitioner and her

husband as of the date of the filing of the bankruptcy petition,

and as property exempt pursuant to 11 U.S.C. sec. 522(d)(1)

(Supp. II, 1978), as the residence of the debtor or a dependent

of the debtor. Petitioner and her husband were discharged from

bankruptcy on June 29, 1984.

On November 2, 1989, petitioner wrote to the Internal

Revenue Service Problem Resolution Office in Laguna Nigel,

California, and requested audit reports. In response, on January

17, 1990, personnel of that office sent petitioner copies of her

audit reports for the taxable years 1979, 1980, and 1981. A copy

of the original notice of deficiency dated April 13, 1984, was

included with the audit reports received by petitioner.

Ernest Avilla (Avilla) worked as the postmaster for the post

office in Nuevo, California (hereafter the Nuevo post office),

from 1981 through 1984. His job functions as postmaster included

traveling to the Lakeview post office approximately once a week
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to observe the postal practices and procedures at the Lakeview

post office. As a result of his duties as postmaster, Avilla

testified that he was familiar with petitioner's last name

"Clevenger". In 1983 and 1984, the Lakeview post office had 300

post office boxes and the Nuevo post office had 594 post office

boxes and one highway contract route for street delivery that

extended into the Lakeview area and had about 500 deliveries.

The Bell Avenue address was not located along the highway

contract route. According to Avilla, it was the policy of the

Nuevo and Lakeview post offices to deliver mail to the residents

of Lakeview and Nuevo based upon the resident's last name rather

than street address. For example, mail received by either the

Lakeview or Nuevo post offices that was addressed to a resident

of the Nuevo or Lakeview area with only the resident's name and

city on the letter or package was still delivered either to the

resident's post office box or to the resident's street address if

that resident was receiving mail at the street address.

Petitioner's witness Edna Morrison (Morrison) testified that

she, her husband, and her son resided at the Bell Avenue address

from mid-January 1983 until December 1983. Morrison was unable

to produce any documentary evidence or records to corroborate the

dates she claims to have resided at the Bell Avenue address.

Morrison testified that during the time she claims she resided at

the Bell Avenue address she never received any mail that was
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addressed to petitioner or her husband because she "only received

mail at her post office box".

Petitioner's second witness, Melinda Hayes (Hayes),

testified that she, her mother, and her brother resided at the

Bell Avenue address from December 1983 until June 1984.

Accordingly, Hayes allegedly was living at the Bell Avenue

address when the notice of deficiency was issued to petitioner.

Hayes testified that during the time she claims she resided at

the Bell Avenue address, she never received any mail that was

addressed to petitioner or her husband. Hayes claimed that her

family actually received mail at the Bell Avenue address. At the

time of the hearing, Hayes was petitioner's daughter-in-law.

Discussion

The jurisdiction of this Court is governed by statute. Sec.

7442. A valid notice of deficiency and a timely filed petition

are essential to our deficiency jurisdiction. Secs. 6212 and

6213; Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988). Under

section 6212, a notice of deficiency is sufficient if it is

mailed to the taxpayer's last known address by certified or

registered mail. Sec. 6212(a) and (b). "A notice of deficiency

is valid if it is mailed to the taxpayer's last known address

even if it is not received by the taxpayer." Williams v.

Commissioner, 935 F.2d 1066, 1067 (9th Cir. 1991), affg. T.C.

Memo. 1989-439; King v. Commissioner, 857 F.2d 676, 681 (9th Cir.
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1988), affg. on other grounds 88 T.C. 1042 (1987). Even if the

notice is mailed to the wrong address, it will be valid if the

taxpayer receives actual notice of the deficiency and is not

unduly prejudiced in timely filing his or her petition. Erhard

v. Commissioner, 87 F.3d 273, 275 (9th Cir. 1996), affg. T.C.

Memo. 1994-344 (quoting Patmon & Young Profl. Corp. v.

Commissioner, 55 F.3d 216, 218 (6th Cir. 1995), affg. T.C. Memo.

1993-143); Frieling v. Commissioner, 81 T.C. 42, 53 (1983).

Respondent's motion to dismiss is based on the ground that

the petition was not timely filed. This Court will not dismiss

the petition as untimely filed unless respondent first

establishes that respondent mailed a notice of deficiency to

petitioner and proves the date on which the notice was mailed.

Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), affd. without

published opinion 935 F.2d 1282 (3d Cir. 1991).

The record here includes a copy of the notice dated April

13, 1984, that was sent to petitioner as well as a copy of the

U.S. Postal Service Form 3877 (For Registered, Insured, C.O.D.,

Certified, and Express Mail) with an April 13, 1984, postmark

date. The legend stamped at the top left-hand side of the Form

3877 states "Statutory Notices of Deficiency, For The Year(s)

Indicated, Have Been Sent To The Following Taxpayers".

Petitioner's name and the Bell Avenue address appear on the Form

3877 in addition to the redacted names of four other taxpayers.

Petitioner has not disputed the mailing of the deficiency notice
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to the Bell Avenue address. Based on this evidence, and the

record as a whole, we find that respondent has established that

the subject notice of deficiency was mailed to petitioner at the

Bell Avenue address on April 13, 1984. See August v.

Commissioner, 54 T.C. 1535 (1970).

Generally, a taxpayer has 90 days after the mailing of a

notice of deficiency to file a petition with this Court. Sec.

6213(a); Monge v. Commissioner, supra at 27. However, if the

taxpayer is involved in bankruptcy proceedings, the debtor-

taxpayer is prohibited from filing a petition with this Court

while the bankruptcy case is pending. 11 U.S.C. sec. 362(a)(8)

(Supp. II, 1978). Under section 6213(f)(1), the 90-day period is

suspended for the time during which the debtor-taxpayer is

prohibited by reason of the bankruptcy proceedings from filing a

petition and for 60 days thereafter. Although the Tax Court's

jurisdiction is limited by 11 U.S.C. section 362(a)(8) (Supp. II,

1978), the Commissioner is not prohibited from issuing a notice

of deficiency during the pendency of a bankruptcy case. 11

U.S.C. sec. 362(b)(8) (Supp. II, 1978); see Zimmerman v.

Commissioner, 105 T.C. 220, 224-225 (1995).

Petitioner and her husband filed for individual bankruptcy

on February 13, 1984, 2 months before the notice of deficiency

was mailed. Petitioner and her husband were discharged from

bankruptcy on June 29, 1984. Accordingly, the 90-day period

began to run 60 days later. Secs. 6212 and 6213(f)(1); 11 U.S.C.
 - 10 -

sec. 362(a)(8), (c)(2) (Supp. II, 1978). The 90-day period

expired on November 25, 1984. Sec. 6213(a). Petitioner did not

file her petition in this case until April 28, 1995. Therefore,

given a valid notice of deficiency, the petition must be

dismissed for lack of jurisdiction as untimely. Secs. 6213(a),

7502; Rule 13(a), (c); see Pietanza v. Commissioner, supra at

735-736. However, if we should find that jurisdiction is lacking

because respondent did not mail a valid notice of deficiency

under section 6212, we would dismiss the case on that ground.

Pietanza v. Commissioner, supra at 736.

Petitioner argues that respondent's motion should be denied

on the ground that the notice was not sent to her last known

address. Neither section 6212 nor the regulations thereunder

define a taxpayer's "last known address". A taxpayer's last

known address is the address to which, in light of all

surrounding facts and circumstances, the Commissioner reasonably

believed the taxpayer wished the notice of deficiency to be sent.

The practical refinement of this rule is that, generally, a

taxpayer's last known address is that used on his most recent

return, unless the taxpayer communicates to the Commissioner

"clear and concise" notice of a change of address. Williams v.

Commissioner, supra at 1067 (quoting United States v. Zolla, 724

F.2d 808, 810 (9th Cir. 1984)). When a taxpayer changes his

address, the taxpayer must notify the Commissioner of the change

or else accept the consequences. Alta Sierra Vista, Inc. v.
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Commissioner, 62 T.C. 367, 374 (1974), affd. without published

opinion 538 F.2d 334 (9th Cir. 1976). To supplant the address on

the most recent return, the taxpayer must clearly indicate that

the former address is no longer to be used. Tadros v.

Commissioner, 763 F.2d 89, 92 (2nd Cir. 1985); White v.

Commissioner, T.C. Memo. 1990-528.

Petitioner's joint Federal income tax return for 1978, filed

February 2, 1983, was the most recent return filed by petitioner

when the notice of deficiency was issued on April 13, 1984.

Petitioner bears the burden of proving that the notice of

deficiency was not mailed to her last known address. Rule

142(a); Yusko v. Commissioner, 89 T.C. 806, 808 (1987).

Moreover, regardless of the burden of proof, the record before us

is replete with documents indicating that in February 1983 when

petitioner's most recent return was filed, petitioner and her

husband considered the Bell Avenue address their residence

address. Among the documents introduced as evidence by

respondent were petitioner's bankruptcy records, official

employment records, including her wage reports and personnel

records, records from the California Department of Motor

Vehicles, and an Abstract of Judgment and Notice of Judgment Lien

filed by First Interstate Bank of California against petitioner

and her husband.

On October 22, 1984, respondent filed a "Notice of Federal

Tax Lien" with the Riverside, California, Recorder's Office
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against petitioner and her husband for the 1978 tax year. The

lien identifies petitioner's residence as the Bell Avenue

address. Respondent argues that because this lien was filed

based upon petitioner's last filed income tax return, an

inference can be made that respondent used petitioner's last

filed return to determine petitioner's address when filing this

lien. We conclude on the basis of the substantial available

evidence that the Bell Avenue address was the address listed on

petitioner's 1978 tax return and was petitioner's residence

address in February 1983 when she and her husband filed their

return for 1978.

Petitioner never sent notice to respondent specifically

informing respondent that the address on her most recent return

no longer should be used or that she wanted a different address

to be used for tax purposes. Based upon all the evidence in the

record, we find that respondent mailed the subject notice of

deficiency to the address which was shown as petitioner's

residence on her most recent return prior to the date of the

deficiency notice and which was in fact her residence at the time

of filing that return.

Petitioner argues that respondent knew that her address had

changed since her most recent return. She contends that

respondent knew of her address change by virtue of her bankruptcy

petition and a Form 3242 "Request for Information From Employer

(To Locate Individual)", which had been mailed by the Internal
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Revenue Service to petitioner's employer on August 14, 1983. On

August 16, 1983, petitioner's employer, the Nuview Union School

District, completed and returned Form 3242 to the Internal

Revenue Service in San Diego, California. As completed, the Form

3242 identified petitioner's "current" address as the Apricot

address. Petitioner presented no evidence that she ever sent a

copy of the bankruptcy petition to respondent.

This Court repeatedly has held that notification by a third

party of a taxpayer's new address is not sufficient to provide

respondent with clear and concise notification of a taxpayer's

change of address. See Monge v. Commissioner, 93 T.C. 22 (1989)

(different addresses on Forms 4868 and 2688); Roy v.

Commissioner, T.C. Memo. 1992-559 (different address on a

bankruptcy cover sheet); Oak Center v. Commissioner, T.C. Memo.

1990-633 (Form 2848 where the Form did not expressly provide that

the taxpayers' address had changed); Grencewicz v. Commissioner,

T.C. Memo. 1990-597 (Forms 1099 and various other interest

statements filed by third parties); White v. Commissioner, T.C.

Memo. 1990-528 (a Form W-2 reflecting a different address);

Greenstein v. Commissioner, T.C. Memo. 1990-405 (Forms W-2 and

1099-DIV filed by third party payers). In United States v.

Zolla, 724 F.2d 808 (9th Cir. 1984), the Court of Appeals

indicated that third party notification would be adequate,

stating that "where the taxpayer himself did not communicate the

change of address to the IRS, the taxpayer would not be estopped
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from arguing that a change of address noted by the IRS was

incorrect." Id. at 811.

The documents introduced by respondent in this case

establish to our satisfaction that in February 1983, when

petitioner and her husband filed their 1978 joint Federal income

tax return, they were using the Bell Avenue address as their

residence address and apparently listed that address on their

return. Considering all the evidence available concerning

petitioner's ownership of the Bell Avenue property and repeatedly

claiming it as a residence address in contrast to her temporarily

occupying quarters at her place of employment, the Apricot

address, some time in 1983, we conclude that, on the date the

deficiency notice was mailed, respondent reasonably believed that

the Bell Avenue address was the address this taxpayer wished to

have respondent use in sending mail to her. Thus, petitioner's

last known address was the Bell Avenue address. Respondent

mailed the subject notice of deficiency to the Bell Avenue

address. That address would have been satisfactory to assure

delivery to petitioner even if she had moved elsewhere in the

Lakeview-Nuevo area. Respondent was not given clear and concise

notification of a change of address. Therefore, we hold that the

notice of deficiency with respect to petitioner's taxable years

1979 through 1981 was properly sent by respondent by certified

mail to petitioner's last known address on April 13, 1984.

Accordingly,
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An order will be entered granting

respondent's motion to dismiss for lack

of jurisdiction on the ground that the

petition was untimely filed.