T.C. Memo. 1998-292
UNITED STATES TAX COURT
WALTER J. HOYT, III AND BETTY J. HOYT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12536-97. Filed August 10, 1998.
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 upon 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 issues for decision are: (1) Whether a notice of
deficiency was issued and properly mailed to petitioners for the
year 1987; and, if so (2) whether respondent had an obligation to
remail the notice of deficiency after it was returned.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
Petitioners are husband and wife. They filed a joint Federal
income tax return for the year 1987. Petitioners resided in
Burns, Oregon, at the time the petition was filed in this case.
References to petitioner are to Walter J. Hoyt III.
During the relevant period, Joseph Pierce was employed by
the Internal Revenue Service (IRS) in Sacramento, California. He
was generally responsible in that district for the preparation of
notices of deficiency, and he was specifically responsible for
the preparation of the notices of deficiency here under
consideration. Mr. Pierce was also responsible for the
preparation of final notices of partnership administrative
adjustment (FPAA's).
Mr. Pierce personally prepared two notices of deficiency
addressed to petitioners for the year 1987. Records maintained
by respondent and the U.S. Postal Service indicate that notices
of deficiency for the year 1987 were sent by certified mail to
petitioners on May 3, 1996. One of the notices was addressed to
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petitioners at HC 71 Lone Pine Creek Road, Burns, OR 97720; the
other was addressed to them at HC 71 Lone Pine Road, Burns, OR
97720.2
The post office in Burns, Oregon, received the envelopes
containing the notices of deficiency. On May 9, 1996, the Postal
Service delivered notification forms to petitioners at the
address designated on the envelopes, stating that certified mail
from the IRS was being held and could be signed for and picked up
at the local post office. After 5 days, a second set of such
notices was delivered. Neither notice of deficiency was picked
up or received by petitioners. Each notice of deficiency was
returned to respondent on or about May 29, 1996. The envelopes
containing the notices were stamped "Unclaimed" by the U.S.
Postal Service. The originals and copies of the notices of
deficiency that were mailed to petitioners on May 3, 1996, were
placed in petitioners' administrative file, along with the
envelopes in which they had been mailed.
On their Federal income tax return for the period beginning
on October 1, 1993, and ending September 30, 1994, which was
received by respondent on June 27, 1995, petitioners listed their
address as HC 71 Lone Pine Creek Road, Burns, OR 97720. They
2
According to the testimony of the postmaster for Burns,
Oregon, any envelope addressed to Burns, Oregon, bearing the name
Hoyt and HC 71 would have been delivered to the proper mailbox.
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listed the same address on their 1994 Federal income tax return,
which was received by respondent on June 11, 1996.
Petitioner served as the tax matters partner in numerous
partnerships. As such, he was sent numerous FPAA's, many of
which were prepared by Mr. Pierce. During the period from March
25 through May 3, 1996, respondent sent by certified mail at
least 10 FPAA's to petitioner in his capacity as a tax matters
partner. The FPAA's were addressed to petitioner at various
locations and were either claimed or unclaimed and returned to
respondent.
OPINION
We first address petitioners' suggestion that a notice of
deficiency for the year 1987 was not issued or sent by certified
mail to them on May 3, 1996. Petitioners point out that they, or
individuals acting on their behalf, were almost on a daily basis
claiming numerous letters mailed to them by respondent during
that period. As petitioners view the situation, the fact that
neither notice of deficiency was claimed raises questions of
whether those notices were actually issued and mailed.
Petitioners maintain that they had no reason not to claim any
notice of deficiency that might have been issued and mailed to
them in May 1996. According to petitioners, if a notice of
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deficiency had been issued and mailed, it would have been claimed
by them or someone authorized to do so on their behalf.
Petitioners request that we find that neither notice of
deficiency was issued and mailed merely because neither was
claimed. Petitioners' failure to claim other items sent to them
by certified mail during the same period, however, undermines
their argument on the point. Furthermore, to accept petitioners'
contention would require us to reject not only the testimony of
the IRS employee actually responsible for the preparation and
mailing of the relevant notices of deficiency, but the testimony
of the U.S. Postal Service employee as well.
A review of the records that typically reflect when a notice
of deficiency is prepared and mailed to a taxpayer indicates that
two notices of deficiency for the year 1987 were mailed to
petitioners on May 3, 1996. We reject petitioners' implicit
suggestion that respondent and the U.S. Postal Service fabricated
records to make it appear that the notices were mailed on May 3,
1996. Accepting petitioners' contention implies some form of
conspiracy between respondent and the U.S. Postal Service a
proposition that we are unwilling to accept on the basis of the
record before us.
We are satisfied from the evidence that on May 3, 1996, two
notices of deficiency for the year 1987 were issued and sent by
certified mail to petitioners. One of the notices of deficiency
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was mailed to an address that is identical to the address
petitioners listed on the Federal income tax return they filed
most recently before the mailing of the notices of deficiency.
The other notice of deficiency was mailed to petitioners at a
similar address except the word "Creek" was omitted. Petitioners
never provided clear and concise notice to respondent that they
wanted to be contacted at a different address. During cross-
examination, petitioner testified as follows:
Q. Okay. Have you ever sent the Internal Revenue
Service a notice or requested in any way that they not
send notices of deficiency related to your personal tax
situation? Have you ever requested they send those
notices to any address other than HC 71 Lone Pine Road,
Burns, Oregon, 97720?
A. I've never requested they send them to any address
so the answer is no.
We are further satisfied that at least one of the notices of
deficiency was addressed to petitioners at their last known
address (according to the testimony of the U.S. Postal Service
employee, both addresses were proper). See King v. Commissioner,
857 F.2d 676 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Abeles
v. Commissioner, 91 T.C. 1019, 1035 (1988).
Petitioners argue that respondent was aware of numerous
other addresses used by petitioner as a tax matters partner in
various partnerships. According to petitioners, any of these
other addresses should be considered their last known address
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within the meaning of section 6212, and respondent's failure to
mail the notice of deficiency to any of these other addresses
renders the notice invalid. We disagree. First of all, the
argument has no application to Betty J. Hoyt. There is nothing
in the record that suggests respondent was aware of any other
address for her during the relevant period. Secondly, we find no
authority that supports petitioners' proposition that an address
used to contact a tax matters partner in connection with an FPAA
would, other than by coincidence, be considered the tax matters
partner's last known address for purposes of a notice of
deficiency. For a discussion on this point, see Lueck v.
Commissioner, T.C. Memo. 1990-334. Furthermore, contrary to
petitioners' contention, as we have pointed out previously, a
taxpayer can have only one last known address for purposes of
section 6212. Abeles v. Commissioner, supra at 1030; Cantu v.
Commissioner, T.C. Memo. 1990-354; Lueck v. Commissioner, supra.
Petitioners further argue that respondent's failure to
remail the notice of deficiency to the same or different
addresses violated respondent's duty of due diligence.
Respondent's obligation to exercise due diligence, however,
applies to the process of ascertaining a taxpayer's last known
address. King v. Commissioner, supra at 679, 681. In this case,
as indicated, at least one of the notices of deficiency was
addressed to petitioners at their last known address. That being
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so, the fact that the notice of deficiency was not received by
petitioners is of no consequence. See King v. Commissioner,
supra; United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).
Lastly, petitioners argue that respondent's failure to
remail the notice of deficiency violated certain provisions of
the Internal Revenue Manual. In this regard, petitioners point
out in their brief that respondent is required to mail duplicate
original notices of deficiency "where there might be some doubt
as to the correctness of the last known address." Respondent
apparently did exactly that in this case. Nevertheless,
petitioners go on to argue that if "a notice of deficiency is
returned to the respondent, IRM 4462.1(5) instructs revenue
agents to remail notices of deficiency to the correct addresses."
(Emphasis added.) The section of the manual cited by petitioners
states:
(5) If a notice of deficiency is returned to the
District Director because of an incorrect address, it
will be remailed to the correct address by certified
mail; in such cases, the date of remailing is the
effective date of the notice.
Returned mail should put the sender on notice that the letter
might have been incorrectly addressed. The above-referenced
manual provision was no doubt designed to cover those situations
and implies that respondent should recheck his records in order
to ascertain the taxpayer's correct address. In this case,
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however, the notices of deficiency were not returned to
respondent because of incorrect addresses. The notices of
deficiency were correctly addressed. They were returned because
petitioners did not claim either of them. Consequently, the
above-referenced manual provision has no application. Because
respondent did not violate his own directive, we need not
consider whether any such violation would have had any
consequences.
Under the circumstances, it would have taken little effort
on respondent's part simply to remail the notices of deficiency
to the same addresses. Nevertheless, respondent's failure to do
so does not invalidate the notices of deficiency. Neither the
statute, the relevant cases, nor respondent's internal procedures
impose any obligation upon respondent to remail a notice of
deficiency that has been properly mailed to a taxpayer but
returned unclaimed.
In this case, a notice of deficiency for the year 1987 was
issued and sent to petitioners at their last known address by
certified mail on May 3, 1996. That being so, under the
circumstances, the statutory period for filing a petition with
this Court in response to that notice of deficiency expired on
August 1, 1996. Sec. 6213(a). The petition in this case was
filed on June 16, 1997, which is well beyond the period
prescribed for doing so. Consequently, we have no jurisdiction
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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).
It follows that petitioners' motion to restrain assessment
and collection, filed June 16, 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.