T.C. Memo. 1998-221
UNITED STATES TAX COURT
GUSTAVO and MARIA GUERRERO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23492-97. Filed June 24, 1998.
Gustavo and Maria Guerrero, pro se.
Stuart Spielman and Jason M. Silver, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Chief Special
Trial Judge Peter J. Panuthos, pursuant to the provisions of
- 2 -
section 7443A(b)(4) and 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
PANUTHOS, Chief Special Trial Judge: This matter is before
the Court on respondent's Motion To Dismiss For Lack Of
Jurisdiction. Although respondent contends that this case must
be dismissed on the ground that Gustavo and Maria Guerrero
(petitioners) failed to file their petition within the time
prescribed by section 6213(a), petitioners argue that dismissal
should be based on respondent's failure to issue a valid notice
of deficiency under section 6212. There being no dispute that we
lack jurisdiction over the petition filed herein, we must resolve
the parties' dispute respecting the proper ground for dismissal.
See Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989), affd.
without published opinion 935 F.2d 1282 (3d Cir. 1991).
Background
On April 15, 1996, petitioners filed a joint Federal income
tax return for the taxable year 1995 listing their address as
731 East 52d Street, Los Angeles, California 90011 (the Los
Angeles address). On May 14, 1996, respondent sent a letter to
petitioners at the Los Angeles address notifying petitioners
1
All section references are to the Internal Revenue Code
as amended. All Rule references are to the Tax Court Rules of
Practice and Procedure.
- 3 -
that their tax return for 1993 had been selected for
examination. On October 4, 1996, respondent sent a so-called
30-day letter to petitioners at the Los Angeles address
providing petitioners with notice of respondent's proposed
changes to their tax liability for 1993. Respondent did not
receive either of the above-described letters back from the U.S.
Postal Service undelivered.
On or about September 27, 1996, petitioners wrote to the
Internal Revenue Service Center in Fresno, California,
requesting a copy of their 1993 tax return. Although
petitioners' September 27, 1996, letter is not part of the
record in this case, it appears that petitioners listed their
address as 10426 Adella Ave., Southgate, California 90280 (the
Southgate address). On December 31, 1996, the operations
manager for the Document Services Branch at the Internal Revenue
Service Center, Western Region, mailed a letter to petitioners
at the Southgate address seeking additional information
regarding petitioners' request for a copy of their 1993 tax
return.
In the meantime, one day earlier, on December 30, 1996,
respondent had mailed a joint notice of deficiency to
petitioners at the Los Angeles address determining a deficiency
in their Federal income tax for 1993 in the amount of $18,339
and an accuracy-related penalty in the amount of $3,668 pursuant
- 4 -
to section 6662(a). On January 31, 1997, the envelope bearing
the notice of deficiency was returned to respondent undelivered
and marked "UNCLAIMED".
Petitioners filed a joint petition for redetermination with
the Court on December 1, 1997. The petition was delivered to
the Court in an envelope bearing a U.S. Postal Service postmark
date of November 26, 1997. At the time the petition was filed,
petitioners resided at the Southgate address.
As indicated, respondent filed a Motion to Dismiss for Lack
of Jurisdiction asserting that the petition was not timely
filed. Petitioners filed an objection to respondent's motion
asserting that the notice of deficiency was not mailed to their
last known address which petitioners identify as the Southgate
address. Respondent filed a response to petitioners' objection
asserting: (1) Petitioners' September 27, 1996 letter to the
Fresno Service Center requesting a copy of their 1993 tax return
did not constitute clear and concise notice of petitioners'
change of address; and (2) a review of respondent's computer
records revealed that petitioners' address did not change
between 1988 and 1997.
This matter was called for hearing at the Court's motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and presented argument in support of the pending
motion. No appearance was entered by or on behalf of
- 5 -
petitioners at the hearing, nor did petitioners file a statement
with the Court pursuant to Rule 50(c).
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 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 a 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 (or 150 days under circumstances not present
herein) from the date that the notice of deficiency is mailed to
file a petition with the Court for a redetermination of the
deficiency. Sec. 6213(a).
Respondent mailed the notice of deficiency in question to
petitioners at the Los Angeles address on December 30, 1996.
- 6 -
The petition arrived at the Court in an envelope postmarked
November 26, 1997, and was filed by the Court on December 1,
1997. Given that the petition was neither mailed nor filed
before the expiration of the 90-day statutory period for filing
a timely petition, it follows that we lack jurisdiction over the
petition. Secs. 6213(a) and 7502; Rule 13(a), (c); see Normac,
Inc. v. Commissioner, supra.
The question presented is whether dismissal of this case
should be premised on petitioners' failure to file a
timely petition under section 6213(a) or on respondent's failure
to issue a valid notice of deficiency under section 6212.
Petitioners contend that they did not receive the notice of
deficiency and that the notice is invalid because it was not
mailed to their last known address.
Although the phrase "last known address" is not defined in
the Internal Revenue Code or in the regulations thereunder, we
have held that a taxpayer's last known address is the address
shown on the taxpayer's most recently filed return, absent clear
and concise notice of a change of address. Abeles v.
Commissioner, 91 T.C. 1019, 1035 (1988); see King v.
Commissioner, supra at 681. Although a taxpayer is obliged to
provide respondent with clear and concise notice of a change of
address, respondent must exercise reasonable care and due
diligence in ascertaining the taxpayer's correct address. King
- 7 -
v. Commissioner, supra at 681. Once respondent has mailed the
notice of deficiency to the taxpayer's last known address, that
is all that is required, and respondent's reasonable care and
due diligence obligation has been satisfied. Id. The burden of
proving that a notice of deficiency was not sent to the
taxpayer's last known address is on the taxpayer. Yusko v.
Commissioner, supra at 808.
Respondent mailed the notice of deficiency to the Los
Angeles address listed on petitioners' 1995 joint tax return
filed April 15, 1996, the last tax return filed by petitioners
prior to the mailing of the notice of deficiency. Consequently,
the notice of deficiency was mailed to petitioners' last known
address unless petitioners can demonstrate that they provided
respondent with clear and concise notice of their change of
address.
Petitioners' assertion that the notice of deficiency is
invalid appears to be based on the contention that respondent
received clear and concise notice of petitioners' change of
address by virtue of petitioners' September 27, 1996 letter to
the Fresno Service Center. However, petitioners failed to
submit the letter to the Court for consideration. In any event,
insofar as the letter merely served as petitioners' request for
a copy of their 1993 tax return, it follows that the letter
would not constitute clear and concise notice of petitioners'
- 8 -
change of address. See King v. Commissioner, supra at 681;
Monge v. Commissioner, supra at 31-32; Cantu v. Commissioner,
T.C. Memo. 1990-354; James v. Commissioner, T.C. Memo. 1990-128;
Pritchett v. Commissioner, T.C. Memo. 1986-559.
Considering all of the facts and circumstances, we hold
that respondent exercised due diligence and mailed the notice of
deficiency to petitioners' last known address. Consequently, we
will grant respondent's Motion to Dismiss for Lack of
Jurisdiction.2
In order to reflect the foregoing,
An order will be entered
granting respondent's Motion to
Dismiss for Lack of Jurisdiction.
2
Although petitioners cannot pursue their case in this
Court, they are not without a legal remedy. In short,
petitioners 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).