T.C. Memo. 2000-347
UNITED STATES TAX COURT
DOUGLAS T. BUSBY & VALARIE E. BUSBY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10998-99. Filed November 8, 2000.
Usha Ravi, for respondent.
MEMORANDUM OPINION
CARLUZZO, Special Trial Judge: This deficiency proceeding,
filed pursuant to section 6213(a),1 is before the Court on
respondent’s Motion to Dismiss for Lack of Jurisdiction, filed
December 6, 1999, upon the ground that the petition was not filed
within the period prescribed by that section. In his response to
respondent’s motion, filed January 18, 2000, Douglas T. Busby
1
Section references are to the Internal Revenue Code of
1986, as amended.
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suggests that the notice of deficiency upon which this case is
based was not mailed to him at his last known address.2 Hearings
on respondent’s motion were conducted in San Francisco,
California, on May 9 and 12, 2000.
The issue for decision is whether the notice of deficiency
upon which this case is based was sent to petitioners at their
last known address.
Background
In a notice of deficiency issued and sent by certified mail
on December 16, 1998 (the notice), respondent determined a
deficiency of $3,412 in petitioners’ 1996 Federal income tax.
The petition in this case was filed on June 10, 1999, which is
more than 90 days after the date that the notice was mailed. On
the date that the petition was filed, petitioners resided at
separate addresses in California. References to petitioner are
to Valarie E. Busby.
The notice is addressed to petitioners at 1622 Cherokee
Drive, Salinas, CA 93906 (the Cherokee Drive address). The
address listed for petitioners on their joint 1996 Federal income
tax return, filed as husband and wife, is 556 Leslie Drive,
Salinas, CA 93906 (the Leslie Drive address). This address is
2
Valarie E. Busby’s response, filed February 15, 2000,
focuses more upon the merits of the adjustments contained in the
notice of deficiency than on the merits of respondent’s
jurisdictional motion.
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also the address they listed on their 1997 joint return, filed on
or before April 15, 1998. Petitioner’s 1997 joint return is the
most recently filed return before the notice was issued.
The examination of petitioners’ 1996 return began sometime
before June 24, 1998. On that date, a notice of proposed
adjustments (the 30-day letter) relating to 1996 was sent to
petitioners at the Leslie Drive address. By that time,
petitioner had moved to the Cherokee Drive address.
Nevertheless, she received the 30-day letter, forwarded to the
Cherokee Drive address by the U.S. Postal Service, and noticed it
was mailed to an address no longer current. This prompted her to
notify respondent of her change of address to Cherokee Drive.
She did so by placing a telephone call to an IRS Service Center
and speaking with one of its employees sometime between June 24
and September 23, 1998. On the latter date, a duplicate of the
30-day letter was mailed to petitioners at the Cherokee Drive
address.
During the telephone call with the IRS Service Center
employee, petitioner was asked to provide the Social Security
number of her spouse, which she did. The information was
necessary because the return under examination and the return
filed most recently before the telephone call were joint returns.
Based upon the information provided by petitioner during the
telephone call, the IRS Service Center employee changed
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petitioners’ address from the Leslie Drive address, the address
listed on their most recently filed return, to the Cherokee Drive
address. Based upon her response to respondent’s motion, it
appears that petitioner was still living at the Cherokee Drive
address on the date the notice was issued but moved from that
address shortly thereafter.
As it turned out, petitioners had separated sometime in
1998, and Douglas T. Busby was not living at either the Leslie
Drive address or the Cherokee Drive address on the date that the
notice was mailed. It is unclear where he was living on the date
of the above-described telephone conversation between petitioner
and an IRS Service Center employee. Nevertheless, Douglas T.
Busby was apparently aware of the then ongoing examination. In
his response to respondent’s motion, he states that, at the time,
he was making “support” payments to petitioner, who told him that
the payments were “also to help pay for any back taxes owed”.
Discussion
The petition in this case, filed June 16, 1999, was not
filed within 90 days from the date that the notice was issued and
mailed to petitioners. That being so, we are without
jurisdiction, and the case must be dismissed. See sec. 6213(a);
Monge v. Commissioner, 93 T.C. 22, 27 (1989). The specific basis
for doing so, however, requires further discussion because
Douglas T. Busby questions, albeit in an unfocussed manner,
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whether the notice was mailed to his last known address. For the
following reasons, we find that it was.
Having determined a deficiency in petitioners’ 1996 Federal
income tax, respondent was authorized to send by certified or
registered mail a notice of deficiency to petitioners at their
“last known address”. Sec. 6212(a) and (b). Petitioners filed a
joint Federal income tax return for 1996. Section 6212(b)(2)
states that: “In the case of a joint income tax return filed by
husband and wife, such notice of deficiency may be a single joint
notice, except that if the Secretary has been notified by either
spouse that separate residences have been established, then, in
lieu of the single joint notice, a duplicate original of the
joint notice shall be sent by certified mail or registered mail
to each spouse at his last known address.” (Emphasis added.)
Petitioners do not contend, and nothing in the record
demonstrates, that either of them notified respondent that they
had established separate residences.
In general, a taxpayer’s last known address is the address
shown on the most recently filed return, absent clear and concise
notice of a change in address. See King v. Commissioner, 857
F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Abeles
v. Commissioner, 91 T.C. 1019, 1035 (1988).
In this case, the notice was not mailed to petitioners at
the address listed on their most recently filed joint return.
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Instead, the notice was mailed to them at an address provided to
respondent by petitioner in a telephone conversation that
occurred sometime between June 24 and September 23, 1998. As a
result of that telephone call, respondent’s records were changed
not only with respect to petitioner’s address, but also with
respect to Douglas T. Busby.
Respondent’s internal procedures allow for other than
written “clear and concise” notice of a change of address if such
notice is received by, or provided to, respondent during the
course of an income tax examination. See 4 Examination, Internal
Revenue Manual, sec. 4243.1(2)(b) (Nov. 14, 1994); see also
Westphal v. Commissioner, T.C. Memo. 1992-599. During the course
of the examination of petitioners’ 1996 joint return, petitioner
notified respondent of a change of address over the telephone,
and petitioners’ address was changed as a result. As previously
noted, neither of the petitioners notified respondent that they
had established separate residences.
According to his response to respondent’s motion, Douglas T.
Busby, who apparently was aware of the then ongoing examination
of his 1996 return, moved several times during the relevant
period. Nothing in the record suggests that he notified
respondent of any change of address. Under the circumstances, we
are satisfied that petitioner’s telephone conversation providing
notification of a new address to an IRS Service Center employee
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constituted “clear and concise” notice of a change of address not
only for petitioner, a point not really in dispute, but for
Douglas T. Busby as well. The Cherokee Drive address is
therefore petitioners’ last known address within the meaning of
section 6212, and the notice was properly mailed to them at that
address. See Abeles v. Commissioner, 91 T.C. 1019 (1988).
Because the petition in this case was not filed within the
period prescribed by section 6213(a), respondent’s motion will be
granted and the case will be dismissed for lack of jurisdiction
upon that ground.
To reflect the foregoing,
An appropriate order
dismissing this case for lack
of jurisdiction will be
entered.