T.C. Memo. 1998-118
UNITED STATES TAX COURT
PATRICK ANTHONY MASINO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14987-96. Filed March 25, 1998.
Patrick A. Masino, pro se.
Steven M. Roth, for respondent.
MEMORANDUM OPINION
GERBER, Judge: This case is before the Court on
respondent’s Motion to Dismiss for Lack of Jurisdiction, filed
August 13, 1997. Respondent contends that this case should be
dismissed because the petition was not filed within 90 days after
the notice of deficiency was mailed pursuant to section 6213(a).1
1
All section references are to the Internal Revenue Code in
(continued...)
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Petitioner contends that the notice of deficiency was not mailed
to his last known address pursuant to section 6212(b) and that
the 90-day filing period should not begin to run until he
received actual notice.
Respondent determined deficiencies in petitioner's Federal
income taxes and additions to tax as follows:
Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654(a)
1989 $24,015 $5,325 $1,421
1990 1,620,549 404,870 106,623
Background
At the time the petition in this case was filed, petitioner
resided in Van Nuys, California.
The notice of deficiency was mailed on April 9, 1996.
Respondent mailed copies of the notice of deficiency to
petitioner at each of the following seven addresses: (1) 5030
West 131st Street, Hawthorne, California 90250-5021; (2) 117 24th
Street, Manhattan Beach, California 90266; (3) 708 Concord
Street, Glendale, California 91202; (4) 720 Concord Street,
Glendale, California 91202; (5) 1500 Turks Head Building,
Providence, Rhode Island 02903; (6) 311½ Winnepeg Place, Long
Beach, California 90814-2564; and (7) c/o Patricia Masino, 311½
Winnepeg Place, Long Beach, California 90814-2564. Petitioner
has lived at five of these addresses.
1
(...continued)
effect for the years at issue.
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At the time the notice of deficiency was mailed, petitioner
was living at 14767 Delano Street #204, Van Nuys, California (Van
Nuys address). It is unclear from the record when petitioner
moved to this address. Petitioner actually received a copy of
the notice of deficiency in late April 1996. A friend of
petitioner who was residing at the 720 Concord Street address
received the notice of deficiency mailed to that address and gave
it to petitioner in late April 1996. Ninety days from the date
the notice was mailed was July 8, 1996. The petition was dated
June 19, 1996; however, it was not mailed until July 9, 1996, 91
days after the notice was mailed to petitioner, and was filed on
July 12, 1996.
Petitioner did not file tax returns for taxable year 1989
through 1995. Respondent became aware of a change of address for
petitioner in mid-1992, before petitioner had moved to the Van
Nuys address. In 1997, petitioner filed a tax return for the
1996 taxable year which updated petitioner's address in
respondent's computer files and deleted the address notification
received by respondent in 1992.
Petitioner was arrested on Federal money-laundering charges
in 1991 and convicted in 1993. Following his arrest, petitioner
was required to report any changes of address to the office of
pretrial services of the U.S. District Court for the Central
District of California. Petitioner's reporting requirement was
in effect in April 1996. Sometime before April 9, 1996, the date
that the notice of deficiency was mailed, petitioner notified the
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office of pretrial services of his Van Nuys address. Petitioner
was not incarcerated when the notice of deficiency was issued.
Petitioner contends that for purposes of section 6212(b)(1),
his last known address is the Van Nuys address. Respondent
argues that the Van Nuys address is not petitioner's last known
address and that a notice of deficiency was mailed to
petitioner's last known address. Alternatively, respondent
contends that petitioner actually received the notice of
deficiency without prejudicial delay and had ample time to file a
petition within 90 days from the date the notice of deficiency
was mailed.
Discussion
The jurisdiction of this Court to redetermine a tax
deficiency depends upon the issuance of a valid notice of
deficiency and the timely filing of a petition. Secs. 6212 and
6213; Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988); Pyo v.
Commissioner, 83 T.C. 626, 632 (1984). A petition is timely if
it is filed within 90 days after the notice of deficiency was
mailed to a person within the United States. Sec. 6213(a).
Under conditions set forth in section 7502, for purposes of
computing the 90-day filing period, timely mailing of the
petition by the taxpayer is timely filing. When a petition is
not filed within the 90-day period, the case must be dismissed
for lack of jurisdiction if the notice of deficiency is valid.
Pugsley v. Commissioner, 749 F.2d 691, 692 (11th Cir. 1985).
Petitioner did not mail the petition in this case within 90 days
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from the date the notice of deficiency was mailed. Therefore, we
must consider whether the notice of deficiency was valid.
Section 6212(a) authorizes the Commissioner to send a notice
of deficiency to the taxpayer by certified or registered mail.
The notice is valid if it is mailed to the last known address of
the taxpayer. Sec. 6212(b)(1). If the address to which the
notice is mailed is not the taxpayer’s last known address, the
notice is generally invalid. Clodfelter v. Commissioner, 57 T.C.
102, 104-105 (1971), affd. 527 F.2d 754 (9th Cir. 1975).
However, a notice of deficiency that is not mailed to the
taxpayer's last known address will be valid from the date of
mailing if the taxpayer actually receives the notice in
sufficient time to file a timely petition without prejudicial
delay. Clodfelter v. Commissioner, 527 F.2d at 757; Mulvania v.
Commissioner, 81 T.C. 65, 68 (1983). Providing the taxpayer with
actual notice of the deficiency determination in a timely manner
is the essence of the statutory scheme. Mulvania v.
Commissioner, supra.
Petitioner maintains that his last known address is the Van
Nuys address. Petitioner contends that he reported his Van Nuys
address to the office of pretrial services of the U.S. District
Court in connection with the Federal money laundering case prior
to the date that the notice of deficiency was mailed. Petitioner
argues that because respondent was involved in his criminal
prosecution, the address notification to the office of pretrial
services should be imputed to respondent for purposes of
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determining his last known address, citing Keeton v.
Commissioner, 74 T.C. 377 (1980). Petitioner argues that because
the notice was not mailed to his last known address, the filing
period should not begin until he actually received the notice of
deficiency in late April 1996. On brief, petitioner maintains
that agents for respondent were involved in the Federal criminal
case and testified against petitioner at trial. Petitioner also
contends that the Internal Revenue Service (IRS) supplied bank
records and cash transaction reports to the Federal Bureau of
Investigation and the U.S. attorney's office to prosecute the
Federal money laundering case. There is no evidence in the
record to either support or refute petitioner's allegations.
Neither the Code nor the regulations 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, respondent reasonably believed the taxpayer wished
the notice of deficiency to be sent. Monge v. Commissioner, 93
T.C. 22, 27-28 (1989). It is the taxpayer’s obligation to
provide "clear and concise notification" to the IRS of any change
of address. Alta Sierra Vista, Inc. v. Commissioner, 62 T.C.
367, 374-375 (1974), affd. without published opinion 538 F.2d 334
(9th Cir. 1976). Absent a clear and concise notification of a
change in address, respondent is entitled to treat the address
shown on the taxpayer’s most recently filed tax return as the
last known address. Abeles v. Commissioner, supra at 1035. When
notified of a change of address, respondent must exercise
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reasonable care and diligence in ascertaining and mailing the
notice of deficiency to the correct address. Looper v.
Commissioner, 73 T.C. 690, 696 (1980); Alta Sierra Vista, Inc. v.
Commissioner, supra at 374. Whether respondent has exercised
reasonable care and diligence must be determined in light of the
facts and circumstances of each case. Alta Sierra Vista, Inc. v.
Commissioner, supra.
In Keeton v. Commissioner, supra, we found that information
concerning the taxpayer's address in the possession of the U.S.
Department of Justice (DOJ) was imputed to respondent. The DOJ
had obtained the taxpayer's address in criminal tax proceedings.
We reasoned that the IRS was inextricably connected with the U.S.
Government's investigation, prosecution, and conviction of the
taxpayer and, therefore, was on notice of the taxpayer's
incarceration. The Court further reasoned that the DOJ and the
IRS are both administrative agencies of the executive branch of
the Federal Government and work in conjunction to enforce Federal
income tax laws. Respondent argues that this case is
distinguishable from Keeton v. Commissioner, supra, because the
office of pretrial services is part of the judicial branch. In
this regard, respondent argues that information possessed by a
judicial office should not be imputed to respondent. Respondent
contends that information obtained by the office of pretrial
services is not available to respondent without approval from the
U.S. District Court, citing 18 U.S.C. sec. 3153 (1994).
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Petitioner concedes that he received the deficiency notice
in late April 1996, after the notice was mailed on April 9, 1996.
Actual receipt of a notice of deficiency by the taxpayer, without
prejudicial delay, eliminates the need for us to determine
whether the notice was mailed to the taxpayer's last known
address. Mulvania v. Commissioner, supra. Accordingly, we need
not decide whether notice of address changes to the U.S. District
Court's office of pretrial services was clear and concise
notification to respondent of petitioner's change of address.
Rather, we consider whether or not there was prejudicial delay in
petitioner's receipt of the deficiency notice in late April 1996.
Assuming that petitioner received the notice of deficiency
on the last day of the month, April 30, 1996, he would have had
at least 69 days remaining in the 90-day filing period to file a
petition. We have held that receipt of a notice of deficiency
that was incorrectly addressed with 69 or fewer days before the
expiration of the filing period is not prejudicial. Bonty v.
Commissioner, T.C. Memo. 1997-372 (69 days remaining); Bowers v.
Commissioner, T.C. Memo. 1991-609 (69 days remaining); George v.
Commissioner, T.C. Memo. 1990-147 (52 days remaining); Loftin v.
Commissioner, T.C. Memo. 1986-322 (30 days remaining). However,
8 days remaining in the filing period when the notice is received
has been held to be insufficient time to file a petition. Sicker
v. Commissioner, 815 F.2d 1400, 1401 (11th Cir. 1987); see Looper
v. Commissioner, supra at 699 (17 days remaining was
prejudicial).
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Petitioner argues that 69 days was not sufficient time to
file a petition in this case because he was heavily involved in
the posttrial and sentencing phase of his Federal money
laundering conviction at the time the notice of deficiency was
issued. In addition, petitioner contends that the deficiency was
determined using information from the Federal money laundering
case and it was necessary for him to review the large volume of
evidence in the money laundering case to verify the accuracy of
the statements in the petition before filing it. In this regard,
petitioner argues that the delay in receiving the notice was
prejudicial.
Despite petitioner's explanations, we find that petitioner's
own inaction was responsible for the late filing. The
substantive issues in this case do not appear complex and involve
petitioner's failure to report income from illegal activities.
Petitioner completed the one-page petition over 2 weeks before he
mailed it. The petition does not contain any factual allegations
as to the correct amount of petitioner's taxable income for the
years in issue. On the facts of this case, we find that
petitioner received the notice of deficiency with sufficient time
to file a petition. Petitioner's failure to file a timely
petition was not the result of any possible error in the address
to which the notice of deficiency was mailed. Accordingly, we
find that the notice was valid and grant respondent's motion to
dismiss for lack of jurisdiction.
To reflect the foregoing,
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An order of dismissal for lack
of jurisdiction will be entered.