T.C. Memo. 1998-179
UNITED STATES TAX COURT
DEBORAH F. ROBINSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10673-97. Filed May 13, 1998.
Deborah F. Robinson, pro se.
Brendan G. King, 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 (1) Petitioner's Motion to Restrain Assessment or Collection;
and (2) Respondent's Motion to Dismiss for Lack of Jurisdiction.
Background
On August 26, 1991, respondent sent petitioner a notice of
deficiency for the taxable year 1988 (the notice of deficiency
for 1988). In the notice of deficiency for 1988, respondent
determined the following deficiency in petitioner's Federal
income tax and additions to tax:
Additions to Tax
Year Deficiency Sec. 6651(a) Sec. 6653(a)(1)
1988 $9,713 $320 $486
On February 23, 1993, respondent sent petitioner a notice of
deficiency for the taxable year 1989 (the notice of deficiency
for 1989). In the notice of deficiency for 1989, respondent
determined the following deficiency in petitioner's Federal
income tax and additions to tax:
Additions to Tax
Year Deficiency Sec. 6651(a) Sec. 6654
1989 $27,822 $4,291.75 $1,080.24
1
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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On October 1, 1993, respondent sent petitioner a notice of
deficiency for the taxable year 1991 (the notice of deficiency
for 1991). In the notice of deficiency for 1991, respondent
determined the following deficiency in petitioner's Federal
income tax and addition to tax:
Addition to Tax
Year Deficiency Sec. 6651(a)
1991 $14,120 $623
The notices of deficiency for 1988, 1989, and 1991 were sent
by certified mail and were addressed to petitioner at 1554 Summit
Avenue, Hillside, New Jersey 07205 (the Summit Avenue address).
Each such notice was returned to respondent by the Postal Service
marked "unclaimed".
Respondent's records do not indicate that a notice of
deficiency was sent to petitioner for the taxable year 1990.
Petitioner filed income tax returns claiming refunds for the
following taxable years on the indicated dates:
Year Date Filed Refund Claimed
1988 10/21/92 $1,725
1989 06/20/94 7,317
1990 07/02/96 1,254
1991 11/19/96 10,650
Petitioner did not file an income tax return for the taxable
year 1992.
Petitioner's 1988 and 1989 income tax returns listed the
Summit Avenue address as petitioner's address. Petitioner's 1990
and 1991 income tax returns listed a different address; namely,
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P.O. Box 5072, Hillside, New Jersey 07205 (the P.O. Box 5072
address).
At the time that the notice of deficiency for 1988 was
mailed, respondent's files pertaining to petitioner's 1988
taxable year included correspondence from petitioner dated June
15, 1991. That correspondence reflected the Summit Avenue
address as petitioner's address.2
Petitioner filed a petition for redetermination with the
Court on May 27, 1997.3 The petition arrived at the Court by
certified mail in an envelope bearing a U.S. Postal Service
postmark date of May 21, 1997.
The petition, which does not bear petitioner's original
signature and which was not accompanied by the filing fee,4 seeks
to place in issue the taxable years 1988, 1989, 1990, and 1991.
The petition does not include a copy of any notice of deficiency
for 1990. See Rule 34(b)(8).
Subsequent to the filing of the petition, petitioner filed a
Motion to Restrain Assessment or Collection. Petitioner attached
to her motion copies of approximately 40 letters, virtually all
2
The record does not include a copy of petitioner's income
tax return for 1987, and the record is otherwise silent regarding
what address was listed thereon.
3
The petition lists the P.O. Box 5072 address as
petitioner's address.
4
Rules 33(a), 23(a)(3), and 34(b)(7) require that a
petition bear the original signature of a petitioner. Rule 20(b)
requires that a petition be accompanied by a $60 filing fee.
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of which were sent by certified mail,5 to various Internal
Revenue Service offices. Letters dated June 15, 1991, October 5,
1992, October 18, 1992, December 12, 1992, March 14, 1995, July
23, 1995, October 4, 1995, and November 15, 1995, list the Summit
Avenue address as petitioner's address. The remaining letters
list the P.O. Box 5072 address as petitioner's address.
Of the letters attached to petitioner's motion that list the
P.O. Box 5072 address as petitioner's address, the earliest is
dated January 11, 1994. The second earliest is dated November
29, 1995.
Shortly after petitioner filed her motion to restrain,
respondent filed a Motion to Dismiss for Lack of Jurisdiction.6
Respondent's motion is premised on the ground that, for the
taxable years 1988, 1989, and 1991, the petition was not timely
filed within the time prescribed by section 6213(a) or section
7502. For the taxable year 1990, respondent's motion is premised
on the ground that respondent is unaware of any notice of
deficiency having been sent to petitioner for that year.7
5
The exhibits to petitioner's motion include copies of 41
domestic return receipts (PS Forms 3811) for certified mail sent
to various IRS offices.
6
Respondent also filed a Notice of Objection to
petitioner's motion on the ground that the Court lacks
jurisdiction in this case.
7
The record suggests that respondent accepted petitioner's
1990 return as filed and applied the refund claimed thereon to an
outstanding liability for some other taxable year.
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Petitioner filed an objection to respondent's motion. In
her objection, petitioner alleges that the notices of deficiency
for 1988, 1989, and 1991 were not sent to her at her last known
address. In this regard, petitioner attached to her objection
copies of purported letters dated April 10, 1988, and March 3,
1989, that direct respondent to use the P.O. Box 5072 address,
rather than the Summit Avenue address. Neither letter lists
petitioner's tax identification number nor does either reference
a particular taxable year. Further, neither letter purports to
have been sent by certified mail.8
Respondent has no record of having received either the
purported letter dated April 10, 1988, or the purported letter
dated March 3, 1989.
Pursuant to notice, petitioner's motion to restrain and
respondent's motion to dismiss were called for hearing at the
Court's Trial Session in New York, New York, on March 20, 1998.
8
The purported letter dated Apr. 10, 1988, reads as
follows:
For security reasons, please forward my refund check to
the below listed address. Please also forward any and
all other correspondence to my below listed address.
All correspondence from your offices, if any, need also
be delivered by regular mail. My work related travel
does not afford me the opportunity to collect
deliveries other than that forwarded by regular mail.
Thank you.
The purported letter dated Mar. 3, 1989, is essentially the same,
except that the phrase "Second Notice" appears twice above the
date on that letter.
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Counsel for respondent appeared at the hearing and presented
argument in support of the pending motion. There was no
appearance by or on behalf of petitioner.
Discussion
The Court's jurisdiction to redetermine a deficiency depends
on 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 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); Keado v.
United States, 853 F.2d 1209, 1211-1212 (5th Cir. 1988); 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).
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Respondent's Motion To Dismiss: Taxable Years 1988, 1989,
and 1991
There is no question that the notices of deficiency for
1988, 1989, and 1991 were mailed to petitioner on August 26,
1991, February 23, 1993, and October 1, 1993, respectively.
Further, there is no question that the petition was not filed
until May 27, 1997, well after the expiration of each of the 90-
day periods for filing a timely petition. Accordingly, it
follows that we must dismiss this case for lack of jurisdiction
insofar as the 1988, 1989, and 1991 taxable years are concerned.
However, in view of petitioner's assertion that the notices of
deficiency for those years were not mailed to petitioner at her
last known address, the issue presented is whether the dismissal
of those 3 years 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 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).
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As indicated, the parties disagree whether the notices of
deficiency for 1988, 1989, and 1991 were mailed to petitioner at
her 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 Summit Avenue address was
petitioner's last known address. In contrast, petitioner
contends that the P.O. Box 5072 address was her last known
address.
The record in this case convincingly demonstrates that the
Summit Avenue address was petitioner's last known address on each
of the three dates on which a notice of deficiency was mailed.
At the times that the notices of deficiency were sent to
petitioner, respondent's files included correspondence from
petitioner reflecting the Summit Avenue address as petitioner's
address. Also, at the times that the notices of deficiency for
1989 and 1991 were sent to petitioner, respondent possessed
petitioner's income tax return for 1988, petitioner's most
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recently filed return, which also listed the Summit Avenue
address as petitioner's address.
To counter the foregoing, petitioner alleges that she
directed respondent by letters dated April 10, 1988, and March 3,
1989, to change her address from the Summit Avenue address to the
P.O. Box 5072 address. For the following reasons, however, we do
not find that the purported letters served to give respondent
clear and concise notice of a change of address.
First, respondent has no record of ever having received
either the purported letter dated April 10, 1988, or the
purported letter dated March 3, 1989. Although we can imagine
that one such letter might be misfiled by respondent, we question
whether two such letters would be misfiled, particularly in view
of the fact that petitioner's other correspondence seems to have
found its way into respondent's hands.
Second, it is petitioner's practice to send correspondence
to respondent by certified mail. However, there is no indication
that either the purported letter dated April 10, 1988, or the
purported letter dated March 3, 1989, was sent by certified mail.
We find this odd, given the fact that "for security reasons",
petitioner allegedly wanted her refund checks to be sent to the
P.O. Box 5072 address and not to the Summit Avenue address.
Third, petitioner's income tax returns for 1988, 1989, 1990,
and 1991 all listed petitioner's address as the Summit Avenue
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address.9 Surely petitioner must have realized that respondent
was likely to use the address appearing on her returns in
corresponding with her. And surely petitioner must have realized
that respondent was likely to use the address appearing on her
returns in issuing her a refund check.10 After all, it was "for
security reasons" that petitioner allegedly notified respondent
of a change of address.
Fourth, in corresponding with respondent, petitioner
continued to use the Summit Avenue address as late as November
1995. Thus, correspondence attached to petitioner's motion to
restrain shows that petitioner used the Summit Avenue address in
letters dated June 15, 1991, October 5, 1992, October 18, 1992,
December 12, 1992, March 14, 1995, July 23, 1995, October 4,
1995, and November 15, 1995.
Fifth, based on petitioner's motion to restrain, petitioner
first used the P.O. Box 5072 address in January 1994 and then not
again until late November 1995. Between those times, petitioner
used the Summit Avenue address in letters to respondent dated
9
It will be recalled that petitioner's tax returns for
1988, 1989, 1990, and 1991 were filed on Oct. 21, 1992, June 20,
1994, July 2, 1996, and Nov. 19, 1996. Thus, all four returns
listing the Summit Avenue address were filed after the purported
letter dated Apr. 10, 1988, and the purported letter dated Mar.
3, 1989.
10
It will be recalled that petitioner's tax returns for
1988, 1989, 1990, and 1991 claimed refunds in the amounts of
$1,725, $7,317, $1,254, and $10,650, respectively.
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March 14, 1995, July 23, 1995, October 4, 1995, and November 15,
1995.
Sixth, we think it odd that petitioner did not include
copies of the purported letters dated April 10, 1988, and March
3, 1989, as exhibits to her motion to restrain in view of the
fact that she attached approximately 40 of her other letters,
which presumably constituted all of her correspondence with
respondent. Indeed, the purported letter dated April 10, 1988,
and the purported letter dated March 3, 1989, first came to light
only after the filing of respondent's motion to dismiss.
Respondent's Motion To Dismiss: Taxable Year 1990
Respondent asserts that a diligent search of respondent's
records has not disclosed the existence of any notice of
deficiency for the taxable year 1990. Petitioner has not given
us any reason to question respondent's assertion. If no notice
of deficiency was issued for 1990, then we lack jurisdiction over
that year. See Rule 13(a), (c); Monge v. Commissioner, 93 T.C.
at 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. at 147
(1988).
Petitioner's Motion To Restrain
Pursuant to section 6213(a), this Court has jurisdiction to
restrain assessment and collection of a deficiency if the
deficiency is the subject of a timely filed petition pending
before the Court. Powell v. Commissioner, 96 T.C. 707, 711
(1991). Stated otherwise, we have no jurisdiction to enjoin
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assessment or collection of a deficiency if respondent's
collection efforts relate to a taxable year over which we have no
jurisdiction. Schlosser v. Commissioner, 94 T.C. 816, 823
(1990); Kamholz v. Commissioner, 94 T.C. 11, 15 (1990).
Because we lack jurisdiction over all 4 of the taxable years
that petitioner wishes to place in issue, we are constrained to
deny petitioner's motion to restrain.
Conclusion
In view of the foregoing, we hold that the notices of
deficiency for 1988, 1989, and 1991 were sent to petitioner at
her last known address.11 We also hold that no valid notice of
deficiency for 1990 was sent to petitioner.
To give effect to the foregoing,
An order will be entered
denying petitioner's motion to
restrain assessment or
collection, and granting
respondent's motion to dismiss
for lack of jurisdiction.
11
Although petitioner cannot pursue her case in this
Court, she 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).