T.C. Memo. 2001-156
UNITED STATES TAX COURT
MICHAEL RISING SUN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1524-00. Filed June 28, 2001.
Michael Rising Sun, pro se.
Christa Gruber and Ann M. Welhaf, for respondent.
MEMORANDUM OPINION
PAJAK, Special Trial Judge: This case is before the Court
on respondent's motion to dismiss for lack of jurisdiction on the
ground that the petition was not filed within the time prescribed
by section 6213(a) and section 7502. Unless otherwise indicated,
section references are to the Internal Revenue Code in effect for
the years in issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
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Respondent determined deficiencies and additions to tax in
petitioner's Federal income taxes as follows:
Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654
1988 $1,523 $381 $96
1989 1,790 448 121
1990 3,837 959 252
1991 3,869 967 222
1992 2,614 654 114
1993 2,363 591 96
At the time the petition was filed with this Court,
petitioner resided in Ottumwa, Iowa. Petitioner filed an
objection to respondent's motion to dismiss. Respondent filed a
response to petitioner's objection.
Petitioner did not file tax returns for the taxable years
1988 through 1993. The last year for which he filed a return
prior to 1988 was 1986.
On April 4, 1996, respondent mailed petitioner a notice of
deficiency for the years 1988 through 1993. The notice was sent
by certified mail to petitioner at 713 7th St., SW, Albuquerque,
NM 87102-3813 (Albuquerque address). Respondent also sent a
duplicate notice of deficiency on the same day by certified mail
to petitioner at 73 Forest St., Attleboro, MA 02703 (Attleboro
address). The notice of deficiency sent to the Albuquerque
address was returned by the U.S. Postal Service with a notation
of "Unclaimed". The notice of deficiency sent to the Attleboro
address was returned by the U.S. Postal Service with a notation
of "NOT DELIVERABLE AS ADDRESSED – UNABLE TO FORWARD".
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On September 24, 1999, petitioner contacted the Internal
Revenue Service and inquired about his tax account. On October
28, 1999, respondent responded to petitioner and sent a copy of
the notice of deficiency, which petitioner received on November
5, 1999. The petition was mailed on January 11, 2000, and filed
on February 8, 2000.
Respondent moved to have this case dismissed for lack of
jurisdiction upon the ground that the petition was not filed
within the time prescribed by section 6213(a) and section 7502.
Petitioner contends that he filed the petition on January 11,
2000, within the 90-day period from October 28, 1999, the date
that the copy of the notice was mailed to him after he contacted
the Internal Revenue Service.
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). Pursuant to section 6213(a), the taxpayer has 90
days (or 150 days if the notice is addressed to a person outside
of the United States) from the date that the notice of deficiency
is mailed to file a petition with the Court for a redetermination
of the deficiency. If the petition is not filed within 90 days,
then it is untimely, and we have no jurisdiction to redetermine
the deficiency. Sec. 6213(a).
Section 6212(a) expressly authorizes the Commissioner, after
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determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail. A notice of deficiency
is sufficient if it is mailed to the taxpayer at the taxpayer's
"last known address". Sec. 6212(b)(1); 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).
Although the phrase "last known address" is not defined in
the Code or 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 different address. Abeles v. Commissioner, 91 T.C.
1019, 1035 (1988). A taxpayer is obliged to provide the
Commissioner with clear and concise notice of a change of
address, but the Commissioner must exercise reasonable care and
diligence in ascertaining the taxpayer's correct address.
Frieling v. Commissioner, supra at 49. In deciding whether the
Commissioner mailed a notice to a taxpayer at the taxpayer's last
known address, the relevant inquiry "pertains to respondent's
knowledge rather than to what may in fact be the taxpayer's most
current address." Id. Once the Commissioner has mailed the
notice of deficiency to the taxpayer's last known address, the
Commissioner’s reasonable diligence obligation has been
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satisfied. King v. Commissioner, supra at 679. The taxpayer
bears the burden of proving that the notice was not sent to the
taxpayer's last known address. Yusko v. Commissioner, 89 T.C.
806, 808 (1987).
On January 6, 1994, respondent's records showed petitioner's
last known address as the Albuquerque address based upon
petitioner's latest and most recently filed Federal tax return
which was for the 1986 taxable year. Respondent's records also
showed the Attleboro address based upon third party payer
information reported by American Auto Transporters, Inc.
regarding Forms 1099-Misc issued to petitioner for the years 1992
and 1993.
On July 26, 1994, respondent sent Address Information
Request Forms 4759 to the U.S. Post Offices of Albuquerque and
Attleboro to verify whether mail was deliverable to the
respective addresses. The Albuquerque post office returned the
form stating "Mail Is Delivered To Address Given". The Attleboro
post office returned the form stating "Not Known At Address
Given".
On February 29, 1996, prior to mailing the notice of
deficiency, respondent verified that petitioner's last known
address (Albuquerque address) had not changed. The Internal
Revenue Service computer records which were printed on February
29, 1996, show that the Albuquerque and Attleboro addresses were
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still the two addresses listed for petitioner. Respondent then
sent the notice of deficiency to both addresses.
On these facts it is clear that respondent exercised
reasonable care and diligence in ascertaining petitioner's
correct address. Armstrong v. Commissioner, 15 F.3d 970, 975-976
(10th Cir. 1994), affg. T.C. Memo. 1992-328. Prior to April 4,
1996, petitioner had not filed a return since 1986, nor had he
filed a change of address with respondent. Prior to that date,
petitioner never gave clear and concise notification that he had
moved to a new, permanent address. Absent the proper notice,
respondent correctly relied upon the address used on petitioner's
most recently filed tax return, which the post office verified as
"Mail Is Delivered To Address Given". We find that the notice of
deficiency was mailed to petitioner’s last known address when
mailed to petitioner at the Albuquerque address on April 4, 1996.
Thus, the petition, which was mailed on January 11, 2000, and
which was filed on February 8, 2000, was not filed within the 90-
day period under section 6213(a) and section 7502.
We hold that petitioner did not file his petition for
redetermination with this Court within the time prescribed by
section 6213(a) and section 7502. Therefore, we lack
jurisdiction to redetermine petitioner's 1988 through 1993 tax
liabilities and additions to tax. We grant respondent's motion
to dismiss for lack of jurisdiction.
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Petitioner is not without a judicial remedy. Petitioner may
pay the tax and file a claim for refund with the Internal Revenue
Service. If the claim for refund is denied, then petitioner may
pursue his case in the appropriate Federal District Court or the
U.S. Court of Federal Claims. McCormick v. Commissioner, 55 T.C.
138, 142 (1970).
To reflect the foregoing,
An order granting respondent's
motion to dismiss for lack of
jurisdiction will be entered.