T.C. Memo. 1998-153
UNITED STATES TAX COURT
THEOLIA MILLSAP, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20029-97. Filed April 27, 1998.
Theolia Millsap, pro se.
Richard S. Goldstein and Roslyn D. Grand, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(4) of the Internal Revenue Code of 1986, as amended, and
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Rules 180, 181, and 183.1 The Court agrees with and adopts the
Opinion of the Special Trial Judge, which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: This case is before the Court
on respondent's Motion to Dismiss for Lack of Jurisdiction on the
ground that the petition was not filed within the time prescribed
by section 6213(a) or section 7502.
Background
On June 11, 1993, respondent sent petitioner duplicate
original notices of deficiency for the taxable years 1985, 1986,
1987, and 1989 (the first notices of deficiency). In the first
notices of deficiency, respondent determined the following
deficiencies in petitioner's Federal income taxes and additions
to tax:
Additions to Tax
Sec. Sec. Sec. Sec.
1
Year Deficiency 6651(a)(1) 6653(a)(1) 26653(a)(2) 6654
1985 $9,930 $2,483 $497 applicable $569
1986 10,714 2,679 536 applicable 519
1987 8,159 2,040 408 applicable 439
1989 53,364 13,341 --- --- 3,609
1
For 1986 and 1987, sec. 6653(a)(1)(A).
2
For 1986 and 1987, sec. 6653(a)(1)(B).
Also on June 11, 1993, respondent sent petitioner and his
wife Bertha Millsap duplicate original notices of deficiency for
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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the taxable years 1988, 1990, 1991 (the second notices of
deficiency). In the second notices of deficiency, respondent
determined the following deficiencies in petitioner's and Mrs.
Millsap's Federal income taxes and penalties and additions to
tax:
Additions to Tax
Sec. Sec. Sec. Sec.
Year Deficiency 6651(a)(1) 6653(a)(1) 6661 6662
1988 $13,554 --- $678 $3,389 ---
1990 2,728 $610 --- --- $531
1991 4,962 1,225 --- --- 992
The first notices of deficiency were sent by certified mail
and were addressed to petitioner at 14 Atteiram Drive, Rome,
Georgia 30161 (the Atteiram Drive address) and at 178 East 11th
Street, Rome, Georgia 30161 (the East 11th Street address). The
second notices of deficiency were also sent by certified mail and
were addressed to petitioner and Mrs. Millsap at the Atteiram
Drive address and at the East 11th Street address.
The notices of deficiency that were mailed to the East 11th
Street address were returned to respondent by the Postal Service
marked "attempted, not known, Rome, GA 30161". The notices of
deficiency that were mailed to the Atteiram Drive address were
not returned to respondent.
On April 19, 1993, prior to the mailing of the first and
second notices of deficiency, respondent sent petitioner a
"Notice of Jeopardy Assessment and Right of Appeal" for the
taxable years 1985, 1987, 1989, and 1991 (the first jeopardy
notice). On the following day, April 20, 1993, respondent sent
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petitioner and Mrs. Millsap a "Notice of Jeopardy Assessment and
Right of Appeal" for the taxable years 1988 and 1990 (the second
jeopardy notice).
Both the first and second jeopardy notices were sent by
certified mail and were addressed to petitioner and Mrs. Millsap
at the Atteiram Drive address. Both such notices were delivered
to, and receipted by, "Bertha Millsap" on April 24, 1993.
Petitioner and Mrs. Millsap filed joint Federal income tax
returns for 1989 and 1991 in January 1993. Both returns listed
the East 11th Street address as petitioner's and Mrs. Millsap's
home address.2
Petitioner did not file an income tax return for 1992.
In mailing the first and second notices of deficiency on
June 11, 1993, respondent utilized the East 11th Street address
because that was the address listed on petitioner's most recently
filed income tax returns. In mailing duplicate original notices,
respondent utilized the Atteiram Drive address because
respondent's agents, acting on information furnished by a third-
party earlier in the year, had actually observed petitioner at
2
Respondent's records indicate that petitioner did not
file an income tax return for 1990. However, petitioner attached
a copy of a purported joint return for that year to his Rule
50(c) statement. That copy, however, does not bear the signature
of either petitioner or Mrs. Millsap. In contrast, that copy
does bear a preparer's signature and the date of Aug. 14, 1991.
Further, that copy lists the East 11th Street address as
petitioner's and Mrs. Millsap's home address.
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that address. Moreover, respondent's collection officer and
other agents had executed a writ of entry at the Atteiram Drive
address on April 19, 1993, and Mrs. Millsap was present at such
time.
In October 1993, respondent's collection officer seized an
automobile operated by Mrs. Millsap. At the time of the seizure,
which occurred on the premises of Mrs. Millsap's employer in
Rome, Georgia, the collection officer first learned that Mrs.
Millsap and/or petitioner had purportedly moved to 12 Landrum
Place, Rome, Georgia 30161 (the Landrum Place address).
Petitioner filed a petition for redetermination with the
Court on October 3, 1997.3 The petition arrived at the Court in
an envelope bearing a U.S. Postal Service postmark date of
September 29, 1997.
As indicated, respondent filed a Motion to Dismiss for Lack
of Jurisdiction on the ground that the petition was not timely
filed. Petitioner filed an Objection to respondent's motion in
which he stated that he had moved in June 1993 from the Atteiram
Drive address to the Landrum Place address and did not receive
any notice of deficiency. In his objection, petitioner also
stated that respondent's collection officer knew of the change of
address because the officer had seized Mrs. Millsap's automobile.
3
At the time that the petition was filed, petitioner
resided in Atlanta, Georgia.
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In a subsequent document filed with the Court, petitioner
admitted that he was living at the Atteiram Drive address on June
11, 1993, but that he did not receive any notice of deficiency at
that address. Petitioner stated further that he had moved from
the East 11th Street address in 1989 and that his last known
address was "114 Nourcross Way, Rome, Georgia".4
This matter was called for hearing at the Court's motions
session in Washington, D.C., on April 8, 1998. Counsel for
respondent appeared at the hearing and presented argument and
exhibits in support of the pending motion.
Petitioner did not appear at the hearing on April 8, 1998.
However, he did file a Rule 50(c) statement, attached to which
were "some copies of my tax." These documents include copies of:
Purported Federal and State corporate income tax returns for
petitioner's company Millsap Construction for 1990, purported
Federal and State income tax returns for petitioner and Mrs.
Millsap for 1990 (see supra note 2), the Federal income tax
return for petitioner and Mrs. Millsap for 1991 (see supra p. 4),
4
The 1994 edition of Publication 65, the National Five-
Digit ZIP Code and Post Office Directory, published by the U.S.
Postal Service does not list any "Nourcross Way" in Rome,
Georgia. There is, however, a "Norcross Way" in Rome, Georgia
30165. We note that documents pertaining to the 1989 taxable
year that were attached to petitioner's Rule 50(c) statement,
viz, Forms 1099-MISC purportedly issued by Millsap Construction,
repeatedly reference "114 N. Crossway St., Rome, GA 30161". The
ZIP Code directory does not list "N. Crossway" or "Crossway" in
Rome, Georgia.
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a purported State income tax return for petitioner and Mrs.
Millsap for 1991, and purported Federal and State income tax
returns for petitioner and Mrs. Millsap for 1988. All of these
documents list the East 11th Street address as the applicable
address. The remaining documents attached to petitioner's Rule
50(c) statement include a purported Form 4868 (Application for
Automatic Extension of Time to File U.S. Individual Income Tax
Return) for 1988 (dated April 17, 1989) and 9 Forms 1099-MISC
(with transmittal Form 1096) for Millsap Construction for 1989.5
All of these remaining documents (except for those described
supra note 5) list "114 N. Crossway St., Rome, Georgia 30161" as
the applicable address. See supra note 4.
Discussion
The 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
5
Three of the 9 Forms 1099 purportedly issued to a Terry
Satterfield, a Joshua Watkins, and a Phil Johnson list as the
recipients' address 12 Landrum Place, Rome, Georgia 30161; i.e.,
the Landrum Place address. Two of the remaining Forms 1099 list
13 Landrum Place and 16 Landrum Place as the recipients' address.
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of deficiency to the taxpayer at 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
by the taxpayer 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, generally has 90 days from
the date that the notice of deficiency is mailed to file a
petition in this Court for a redetermination of the deficiency.
Sec. 6213(a).
There is no question that the first and second notices of
deficiency were mailed to petitioner on June 11, 1993. Further,
there is no question that the petition was not filed until
October 3, 1997, well after the expiration of the critical 90-day
period for filing a timely petition. Accordingly, it follows
that we must dismiss this case for lack of jurisdiction.
However, in view of petitioner's assertion that the notices of
deficiency were not mailed to petitioner at his last known
address, the issue presented is whether the dismissal of this
case should be based on petitioner's failure to file a timely
petition under section 6213(a) or respondent's failure to issue a
valid notice of deficiency under section 6212. If jurisdiction
is lacking because of respondent's failure to issue a valid
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notice of deficiency, we will dismiss on that ground, rather than
for lack of a timely filed petition. Pietanza v. Commissioner,
92 T.C. 729, 735-736 (1989), affd. without published opinion 935
F.2d 1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430,
435 (1980); Keeton v. Commissioner, 74 T.C. 377, 379-380 (1980).
As indicated, the parties disagree whether the first and
second notices of deficiency were mailed to petitioner at his
last known address as required by section 6212(b). The phrase
"last known address" is not defined in the Code or in the
regulations. We have held that a taxpayer's last known address
is the address shown on his or her most recently filed return,
absent clear and concise notice of a change of address. Abeles
v. Commissioner, 91 T.C. 1019, 1035 (1988). The burden of
proving that the 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.
Respondent contends that the Atteiram Drive address was
petitioner's last known address. If the Atteiram Drive address
was not petitioner's last known address, respondent submits that
the East 11th Street address was petitioner's last known address.
In either event, respondent contends that the notices of
deficiency are valid because they were sent to petitioner at his
last known address.
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In contrast, petitioner contends that his last known address
was either the Landrum Place address or "114 Nourcross Way".
Because no notice of deficiency was sent to him at either such
address, and further because he allegedly did not receive any
notice of deficiency, petitioner contends that the notices of
deficiency that were issued by respondent are invalid.6
The record in this case convincingly demonstrates that
either the Atteiram Drive address or the East 11th Street address
was petitioner's last known address. In view of the fact that
respondent mailed duplicate original notices of deficiency to
each such address, we need not decide whether the Atteiram Drive
address or the East 11th Street address was petitioner's last
known address.
In January 1993, petitioner filed his 1989 and 1991 income
tax returns. Both of those returns listed the East 11th Street
address as petitioner's home address, and those returns were the
ones that most recently preceded the mailing of the notices of
deficiency on June 11, 1993. Therefore, in the absence of clear
and concise notice of a change of address, the East 11th Street
6
As previously mentioned, actual receipt of a notice of
deficiency by a taxpayer is immaterial if the notice is mailed to
the taxpayer at the taxpayer's last known address. 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, 81 T.C. 42, 52 (1983).
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address was petitioner's last known address under the rationale
of Abeles v. Commissioner, supra at 1035.
Although there is no indication that petitioner himself ever
gave respondent clear and concise notice of a change of address,
respondent was advised by a third party, early in 1993, that
petitioner was residing at the Atteiram Drive address.
Respondent's agents confirmed this fact by actual observation of
petitioner at the Atteiram Drive address and by executing a writ
of entry at that address on April 19, 1993. Moreover, the
jeopardy notices that were mailed to the Atteiram Drive address
were delivered to, and receipted by, "Bertha Millsap" on April
24, 1993. Accordingly, it was reasonable for respondent to mail
duplicate original notices of deficiency to the Atteiram Drive
address.
The foregoing analysis, coupled with petitioner's admission
that he was actually living at the Atteiram Drive address on June
11, 1993, leads us to reject petitioner's contention that his
last known address was either the Landrum Place address or "114
Nourcross Way". Insofar as the Landrum Place address is
concerned, we observe that that address first came to light in
October 1993, 4 months after the mailing of the notices of
deficiency, when respondent's collection officer seized an
automobile operated by Mrs. Millsap. And insofar as "114
Nourcross Way" is concerned, we observe that no document in the
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record supports the existence of such an address and, to the
extent that such address may actually be "114 N. Crossway St.",
such latter address does not appear on any document in the record
for a taxable year after 1989.
Conclusion
In view of the foregoing, we hold that a notice of
deficiency for the taxable years 1985, 1986, 1987, and 1989 and a
notice of deficiency for 1988, 1990, 1991 were each sent to
petitioner at his last known address. Accordingly, those notices
are valid, and we must, therefore, dismiss this case for lack of
jurisdiction on the ground that the petition was not timely
filed.7
To reflect the foregoing,
An order of dismissal
will be entered granting
respondent's Motion to
Dismiss for Lack of
Jurisdiction.
7
Although petitioner cannot pursue his case in this Court,
he is not without a remedy. In short, 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).