T.C. Memo. 2000-231
UNITED STATES TAX COURT
HOWARD M. MORGAN AND GLENICE S. MORGAN, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17424-99. Filed August 1, 2000.
Frank A. Weiser, for petitioners.
Edwin A. Herrera, for respondent.
MEMORANDUM OPINION
LARO, Judge: Respondent moves the Court to dismiss this
case for lack of jurisdiction arguing that petitioners failed to
petition this Court within the 90-day period of section 6213(a)1.
1
Unless otherwise indicated, section references are to the
Internal Revenue Code as applicable herein. Rule references are
to the Tax Court Rules of Practice and Procedure.
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See also Rules 13(c) and 40. On April 15, 1999, respondent
mailed to petitioners’ last known address and former address
notices of deficiency determining a $448,007 deficiency in their
1995 Federal income tax and an $89,601 accuracy-related penalty
under section 6662(a). Petitioners object to respondent’s
motion. Petitioners argue primarily that the notices mailed to
their last known address were invalid because, they assert, the
notices did not contain notice of their right to contact a local
office of the taxpayer advocate and the location and phone number
of the appropriate office. Petitioners contend that such
information is required by section 6212(a). Petitioners argue
alternatively that the petition they filed with this Court after
the 90-day period was timely because they challenged respondent’s
determination through a lawsuit filed in United States District
Court during the 90-day period.
We held an evidentiary hearing on respondent's motion and
shall grant it.
Background2
Petitioners filed a joint 1995 Federal income tax return.
On April 15, 1999, respondent mailed to each petitioner by
2
The Court directed each party to file an opening brief and
an answering brief, the latter limited to making any objection to
the opposing party’s proposed findings of fact. Petitioners have
not filed an answering brief. We conclude they have conceded
respondent's proposed findings as correct except to the extent
that their opening brief contains proposed findings inconsistent
therewith. See Fankhanel v. Commissioner, T.C. Memo. 1998-403,
affd. by unpublished opinion 205 F.3d 1333 (4th Cir. 2000).
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certified mail two notices of deficiency addressed to both
petitioners as to that year.3 Two of these notices were mailed
to petitioners’ last known address (the Collins address) and
received by them. The other two notices were mailed to
petitioners’ former address (the Willow address), which, at the
time, was the residence of petitioners' daughter and son-in-law;
petitioners claim not to have received the latter two notices.
All four notices are identical in all material regards, and each
notice was mailed separately with a copy of Notice 1214, Helpful
Contacts for Your “Notice of Deficiency”.4 None of respondent’s
mailings were returned to him as undeliverable.
During the first week of July 1999, Mr. Morgan retained Anne
Tahim, a certified public accountant, to appeal respondent’s
determination. On July 12, 1999, Ms. Tahim sent to the Internal
Revenue Service by facsimile an executed power of attorney
listing her and a colleague (collectively, the representatives)
as petitioners’ representatives for petitioners’ 1995 through
1998 taxable years. Upon receiving the facsimile, an employee of
respondent spoke to Ms. Tahim by telephone and, among other
3
An employee of respondent also hand delivered to Mr.
Morgan on that date a copy of one of these notices.
4
Notice 1214 is a 2-page document that informs a person
receiving a notice of deficiency that he or she may discuss the
notice with the Internal Revenue Service employee listed on the
face of the notice or with a local taxpayer advocate. The notice
lists a toll-free number for taxpayer advocate assistance and the
local phone numbers of the taxpayer advocate offices.
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things, informed her that petitioners had until July 14, 1999, to
petition this Court to redetermine respondent’s determination.
The employee also provided Ms. Tahim with the telephone number of
this Court’s petition section.
On July 14, 1999, 90 days after respondent mailed to
petitioners the notices of deficiency, petitioners filed a
lawsuit against the Internal Revenue Service and Does 1 through
40 (collectively, the defendants) in the United States District
Court, Central District of California, generally challenging
respondent’s determination. On September 29, 1999, the
defendants moved to dismiss the lawsuit without prejudice to
petitioners’ paying the tax and filing a proper refund action,
asserting primarily that the District Court lacked subject matter
jurisdiction. Following the District Court’s filing of
petitioners’ opposition to the defendant’s motion,5 the District
Court, on October 25, 1999, filed a stipulation of the parties
there stating that the court “may dismiss * * * [petitioners’]
Complaint and action on the sole ground that the Court lacks
subject matter jurisdiction, without prejudice to * * *
[petitioners] filing a subsequent suit in a court of competent
5
Petitioners agreed in their opposition that the District
Court lacked jurisdiction, but they went to great lengths to
maintain that the court should dismiss the case without rendering
judgment on the merits of the case. Petitioners’ opposition
states that they do not want the court’s dismissal to be given
res judicata effect in any further proceeding.
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jurisdiction.” The District Court dismissed petitioners’ lawsuit
on or after that date.
Petitioners petitioned this Court on November 16, 1999, to
redetermine respondent’s determination. Petitioners resided in
Orange, California, at that time.
Discussion
Our jurisdiction requires a valid notice of deficiency and a
timely filed petition, and when one or both of these items is
missing, we must dismiss a case for lack of jurisdiction. See
sec. 6213(a); Cross v. Commissioner, 98 T.C. 613, 615 (1992); Pyo
v. Commissioner, 83 T.C. 626, 632 (1984). Section 6213(a)
provides that where a notice of deficiency is addressed to an
individual within the United States, he or she may petition this
Court within 90 days of the mailing of the notice of deficiency
to redetermine the deficiency.
Petitioners argue primarily that the notices of deficiency
mailed to their last known address were invalid because, they
assert, the notices failed to include all information required by
section 6212(a). We disagree with this assertion. We find as a
fact that the notices of deficiency mailed to petitioners’ last
known address contain all statutorily required information.
Petitioners point to the fact that respondent’s files contain one
copy of the notices of deficiency mailed to the Collins address,
one copy of the notices mailed to the Willow address, and one
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copy of Notice 1214, which is attached to the copy of the notices
mailed to the Willow address. Petitioners draw from this fact
that Notice 1214 was mailed only to the Willow address. Contrary
to petitioners’ assertion, the mere fact that respondent’s file
contains only one copy of Notice 1214 does not mean that
respondent sent only one copy of that notice to them. Certain of
respondent’s employees testified credibly that only one copy of
Notice 1214 is kept in the file of a taxpayer (or taxpayers in
the case of a joint return), notwithstanding the number of copies
of that notice that are actually sent to the taxpayer(s). We
conclude and hold that the notices of deficiency mailed to
petitioners’ last known address were valid. In so concluding, we
reject without further discussion petitioners’ assertion that all
information required by section 6212(a) must be included on the
face of the notice of deficiency in order to comply with that
section.
Petitioners argue alternatively that their petition to this
Court was timely because they filed the lawsuit in the District
Court within the applicable 90-day period. We disagree. The
fact that a taxpayer files a lawsuit in a Federal District Court
challenging a notice of deficiency does not mean that a later
petition to this Court is considered filed as of the earlier
filing in District Court. See Brave v. Commissioner, 65 T.C.
1001 (1976); see also exhibit 3 (Notice of deficiency issued to
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petitioners at the Collins address), which states on its face
that: (1) “you have 90 days from the date of this letter * * *
to file a petition with the United States Tax Court for a
redetermination of the deficiency” and (2) the “Last Day To File
A Petition With The United States Tax Court” is “July 14 1999".
Nor does it matter that the parties to the District Court
proceeding agreed to dismiss that case without prejudice to
petitioners’ challenging respondent’s determination in the
appropriate forum. Petitioners’ reliance on the equitable powers
of this and the equitable powers of the District Court to extend
or otherwise toll the 90-day statutory period is unfounded under
the facts herein.6
We hold that we lack jurisdiction over this case because
petitioners failed to petition this Court within the applicable
90-day period; accordingly, we shall dismiss this case for that
reason. Our dismissal does not leave petitioners without a right
to contest respondent's determination in the appropriate forum.
Petitioners may, if they desire, pay the tax claimed due by
respondent, file with respondent a claim for refund of any amount
purportedly overpaid, and if and when respondent denies that
claim, sue respondent for a refund in a United States District
6
We find nothing in the record to support petitioners’
naked assertion that the District Court remanded their case to
this Court or otherwise allowed them to petition this Court
effective as of the date of their District Court filing. Thus,
we need not and do not decide petitioners’ argument that the
District Court has the power to do so.
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Court or the Court of Federal Claims. Our dismissal means that
petitioners are unable to contest respondent's determination in
this Court. See Budlong v. Commissioner, 58 T.C. 850, 854 n.2
(1972); McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
To reflect the foregoing,
An appropriate order will
be entered.