T.C. Memo. 1998-293
UNITED STATES TAX COURT
WALTER J. HOYT, IV AND CYNTHIA M. WITT-HOYT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13648-97. Filed August 10, 1998.
Raymond Jackson and Michael D. Culy, for petitioners.
Alan E. Staines, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
RUWE, Judge: This case is before the Court on respondent's
motion to dismiss for lack of jurisdiction. Respondent bases his
motion on the ground that the petition was not filed within the
period prescribed by section 6213(a).1
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended and in effect
during the relevant period, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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The issue for decision is whether a notice of deficiency was
issued and properly mailed to petitioners for the year 1992.
According to respondent, on October 2, 1996, a notice of
deficiency in which a deficiency, additions to tax, and a penalty
with respect to petitioners' 1992 Federal income tax were
determined was issued and sent to petitioners by certified mail.
Petitioners admit that a document sent by respondent by certified
mail was received in October 1996 but they claim that the
document was not a notice of deficiency. According to
petitioners, the document was a statement of income tax changes
that they had previously received from the revenue agent
conducting the examination of their 1992 year.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
Petitioners were husband and wife during 1992. They filed a
timely joint Federal income tax return for the year 1992 on or
about October 15, 1993. References to petitioner are to Walter
J. Hoyt IV. Petitioners resided in Willows, California, at the
time their 1992 return was filed and continued to reside there at
least until the petition was filed in this case. The parties
have stipulated, and we find as a fact, that for purposes of
section 6212, petitioners' last known address as of October 2,
1996, was P.O. Box 642, Willows, California 95988.
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At some point prior to December 1995, respondent was
examining petitioners' 1992 Federal income tax return. The
revenue agent conducting the examination mailed a copy of the
proposed statement of income tax changes to petitioners with a
letter dated December 1, 1995, that invited petitioners to
discuss the matter further. Petitioners responded that further
discussion would be a "waste of time" and requested that a notice
of deficiency be issued to them for the year under examination.
Sometime in 1996, the revenue agent forwarded petitioners'
1992 administrative file to Joseph Pierce, the Internal Revenue
Service (IRS) employee generally responsible for the preparation
of notices of deficiency in the district and specifically
responsible for the preparation of the notice of deficiency
relevant here.
The process that preceded the issuance of a notice of
deficiency in Mr. Pierce's district was as follows. Upon receipt
of a taxpayer's administrative file, Mr. Pierce would review the
revenue agent's report for mathematical errors and prepare a
draft of the notice of deficiency, which typically included a
cover letter, waiver, and supporting schedules. Mr. Pierce
researched the taxpayer's last known address. After he
determined the taxpayer's last known address, Mr. Pierce added it
to the draft of the notice of deficiency. Mr. Pierce's work was
checked by other IRS employees, and an original and three copies
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of the notice of deficiency were then produced. Mr. Pierce would
next sign the original and copies of the notice of deficiency on
behalf of the appropriate IRS official. The original and one
copy of the notice of deficiency were mailed to the taxpayer.
Two copies of the notice of deficiency were retained in the
taxpayer's administrative file.
After a notice of deficiency was completed, IRS employee
Dusty Rhoades was responsible for preparing the envelope in which
the document was to be mailed and inserting the document into
that envelope. Mr. Pierce and Mr. Rhoades worked alongside one
another. Before the envelope was sealed, a series of checks took
place in order to ensure the integrity of the process.
Because a notice of deficiency is sent by certified mail,
each one contains a unique certified mailing number which is
placed on the first page of the document. The mailing of each
notice of deficiency is recorded on U.S. Postal Service Form
3877. The form contains the name and address of the taxpayer(s),
the certified mailing number, and the year(s) for which the
notice was issued. The form is postmarked on the date of mailing
and signed by the Postal Service employee who received the items.
Mr. Pierce personally prepared a notice of deficiency
addressed to petitioners for the year 1992. The procedures
outlined above were followed in connection with the preparation
of that notice. All the relevant records maintained by either
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respondent or the U.S. Postal Service indicate that a notice of
deficiency for the year 1992 was sent by certified mail to
petitioners on October 2, 1996.
During the relevant period, petitioner's father served as a
tax matters partner in a number of partnerships that he
(petitioner's father) promoted. Petitioner was employed by his
father in connection with some of the partnerships and was a
partner in some of them as well. As a result, petitioner had
previously seen "volumes" of notices of final partnership
administrative adjustment (FPAA) but only a "handful" of notices
of deficiency. Petitioner considers a notice of deficiency and
an FPAA to be "basically the same".
OPINION
Having determined a deficiency in petitioners' 1992 Federal
income tax, respondent was authorized to notify petitioners of
such by certified mail. Sec. 6212(a). A review of the records
that are typically generated when a notice of deficiency is
prepared and mailed to a taxpayer indicates that a notice of
deficiency for the year 1992 was issued and mailed to petitioners
on October 2, 1996. The records are consistent with the
recollection of Mr. Pierce, the IRS employee who actually
prepared the notice of deficiency and supervised its mailing,
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although he did not actually observe the document being inserted
into an envelope.
Petitioner recalls receiving a document by certified mail
from respondent in October 1996, but, according to his testimony,
after
[going] back through all the different things I signed
for that fall from the IRS * * * I've decided that the
thing that was in that envelope that day was another
copy of that examination report.
We weigh the evidence that indicates a notice of deficiency
was issued and properly mailed to petitioners on October 2, 1996,
against petitioner's testimony that he "decided" it was some
other document. On balance, we are not persuaded by petitioner's
vague recollection and testimony on the point. We find that a
notice of deficiency for the year 1992 was issued and sent to
petitioners by certified mail on October 2, 1996. Under the
circumstances, the statutory period for filing a petition with
this Court in response to that notice of deficiency expired on
December 31, 1996. Sec. 6213(a). The petition in this case was
filed on June 27, 1997, which is well beyond the period
prescribed for doing so. Consequently, we have no jurisdiction
in this case, and respondent's motion to dismiss for lack of
jurisdiction on that ground will be granted. Rule 13(a), (c);
Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.
Commissioner, 90 T.C. 142, 147 (1988).
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It follows that petitioners' motion to restrain assessment
and collection, filed June 27, 1997, and petitioners' motion for
leave to file an amended petition, filed August 22, 1997, must be
denied, as moot.
In order to reflect the foregoing,
An appropriate order
and order of dismissal for
lack of jurisdiction will
be entered.