T.C. Summary Opinion 2001-138
UNITED STATES TAX COURT
NANCI A. BERNARD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1601-01S. Filed September 5, 2001.
Nanci A. Bernard, pro se.
Julie A. Pals, for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463.1 The decision to be entered is
not reviewable by any other court, and this opinion should not be
cited as authority.
1
All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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This case is before the Court on respondent's Motion to
Dismiss for Lack of Jurisdiction, filed March 20, 2001. As
discussed in detail below, we shall grant respondent's motion.
Background
On January 19, 2000, respondent mailed a notice of
deficiency to petitioner determining a deficiency in her Federal
income tax for 1998 in the amount of $2,785 (the deficiency
notice for 1998). Also on January 19, 2000, respondent mailed a
notice of deficiency to petitioner determining a deficiency in
her Federal income tax for 1997 in the amount of $2,134 (the
deficiency notice for 1997).
Respondent sent both the deficiency notice for 1998 and the
deficiency notice for 1997 by certified mail addressed to
petitioner at 112 Bayview Drive, Grasonville, MD 21638 (the
Grasonville address). Petitioner received the deficiency notice
for 1997 shortly after it was mailed; in contrast, petitioner
does not recall receiving the deficiency notice for 1998 until
August 2000. According to respondent, the deficiency notice for
1998 was not returned to respondent by the U.S. Postal Service.
On April 20, 2000, petitioner timely filed a petition for
redetermination (assigned docket No. 4419-00S) contesting
respondent’s deficiency determination for 1997. Attached to the
petition as an exhibit was a copy of the deficiency notice for
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1997. The petition reflects petitioner’s address as 1462 Stoney
Point Way, Baltimore, Maryland 21226 (the Baltimore address).
On February 9, 2001, petitioner filed a petition for
redetermination (assigned docket No. 1601-01S, i.e., the instant
case) contesting respondent’s deficiency determination for 1998.
Attached to the petition as exhibits were copies of collection
notices relating to the taxable year 1998 that were sent to
petitioner at the Baltimore address. The petition reflects
petitioner’s address as 8103 Ventnor Road, Pasadena, Maryland
21122. The petition arrived at the Court in an envelope bearing
a U.S. Postal Service postmark date of February 7, 2001.
As indicated, respondent filed a Motion to Dismiss for Lack
of Jurisdiction on March 20, 2001. In the motion, respondent
contends that this case should be dismissed for lack of
jurisdiction on the ground that the petition was not filed within
the time prescribed by section 6213(a) or section 7502.
Petitioner filed an objection to respondent's motion to
dismiss. In her objection, petitioner contends that respondent
failed to mail the deficiency notice for 1998 to her at the
correct address.
This matter was called for hearing at the Court's motions
session in Washington, D.C., on May 30, 2001. Petitioner and
counsel for respondent appeared and presented evidence. In
particular, respondent introduced copies of petitioner’s Federal
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income tax returns, Forms 1040, for 1998 and 1999. The 1998
return, which was filed in April 1999, lists the Grasonville
address as petitioner’s then current address; in contrast, the
1999 return, which was filed in April 2000, lists the Baltimore
address as petitioner’s then current address.
At the hearing, petitioner stated that she moved from the
Grasonville address to the Baltimore address in late November
1999 and that she moved from the Baltimore address to the
Pasadena address in December 2000.
Discussion
This Court's jurisdiction to redetermine a deficiency
depends upon the issuance of a valid notice of deficiency and a
timely filed petition. See Rule 13(a), (c); Monge v.
Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.
Commissioner, 90 T.C. 142, 147 (1988). Section 6212(a) expressly
authorizes the Commissioner, after 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. See
sec. 6212(b)(1). If the notice is mailed to the taxpayer at the
taxpayer's last known address, actual receipt of the notice by
the taxpayer is immaterial. See King v. Commissioner, 857 F.2d
676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Yusko v.
Commissioner, 89 T.C. 806, 810 (1987); Frieling v. Commissioner,
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81 T.C. 42, 52 (1983). In turn, the taxpayer has 90 days (or 150
days if the notice is addressed to a person outside the United
States) from the date that the notice is mailed to file a
petition for redetermination of the deficiency. See sec.
6213(a); see also sec. 7502 (treating timely mailing as timely
filing).
It is clear in the present case that the deficiency notice
for 1998 was mailed to petitioner on January 19, 2000. It is
equally clear that the petition in respect of that notice was not
filed (or mailed) within the requisite 90-day period.
Accordingly, it follows that we must dismiss this case for lack
of jurisdiction. However, in view of petitioner's contention
that the deficiency notice for 1998 was not mailed to the correct
address, which contention we regard as tantamount to a contention
that the deficiency notice for 1998 was not mailed to her at her
last known address, the issue for decision is whether the
dismissal of this case should be based on petitioner's failure to
file a timely petition under section 6213(a) or whether dismissal
should be based on respondent's failure to issue a valid notice
of deficiency under section 6212. If jurisdiction is lacking
because of respondent's failure to issue a valid notice of
deficiency, we shall dismiss on that ground, rather than for lack
of a timely filed petition. Pietanza v. Commissioner, 92 T.C.
729, 735-736 (1989), affd. without published opinion 935 F.2d
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1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430, 435
(1980); Keeton v. Commissioner, 74 T.C. 377, 379-380 (1980).
Although the phrase "last known address" is not defined in
the Internal Revenue Code or in the regulations, we have held
that absent clear and concise notice of a change of address, a
taxpayer's last known address is the address shown on the
taxpayer’s return that was most recently filed at the time that
the notice was issued. King v. Commissioner, supra at 681;
Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988). In deciding
whether the Commissioner mailed a notice to a taxpayer at the
taxpayer's last known address, the relevant inquiry “pertains to
[the Commissioner’s] knowledge rather than to what may in fact be
the taxpayer's most current address." Frieling v. Commissioner,
supra at 49. The burden of proving that the notice was not sent
to the taxpayer at the taxpayer's last known address is on the
taxpayer. See Yusko v. Commissioner, supra at 808.
Respondent mailed the deficiency notice for 1998 to the
address listed on petitioner's 1998 return--the last return filed
by petitioner prior to the mailing of such notice on January 19,
2000.2 Consequently, the deficiency notice for 1998 was mailed
to petitioner at her last known address unless petitioner can
2
It should be recalled that petitioner’s 1999 return,
which listed the Baltimore address as petitioner’s address, was
not filed with respondent until April 2000.
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demonstrate: (1) She provided respondent with clear and concise
notice of a change of address; or (2) prior to the mailing of the
deficiency notice for 1998, respondent knew of a change in
petitioner's address and did not exercise due diligence in
ascertaining petitioner's correct address. See Abeles v.
Commissioner, supra; Keeton v. Commissioner, supra at 382; Alta
Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974),
affd. without published opinion 538 F.2d 334 (9th Cir. 1976).
There is nothing in the record to suggest that petitioner
gave respondent clear and concise notice of her change of address
from the Grasonville address to the Baltimore address.3 Nor is
there anything in the record to suggest that respondent knew
about such change of address. Indeed, given the short interval
between petitioner’s relocation in late November 1999 and the
issuance of the deficiency notice for 1998 on January 19, 2000,
there would have been limited opportunity for respondent to have
learned about petitioner’s change of address. Moreover, we take
3
The fact that petitioner may have provided notification
of her change of address to the U.S. Postal Service does not, in
and of itself, mean that petitioner provided notification to
respondent. See Adams v. Commissioner, T.C. Memo. 1994-365 (the
filing of a forwarding order with the Postal Service is not clear
and concise notification to the Commissioner of the taxpayer’s
change of address), affd. without published opinion sub nom.
Miller v. Commissioner, 61 F.3d 916 (10th Cir. 1995). In other
words, a taxpayer who does not notify the Commissioner of his or
her change of address but merely relies on the Postal Service to
forward mail bears the risk of any failure of the Postal Service
to properly forward such mail. Id.
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note of the fact that petitioner received the deficiency notice
for 1997, which was also mailed to her at the Grasonville address
on January 19, 2000, within sufficient time to file a timely
petition in respect of that notice. We also take note of
respondent’s representation that the deficiency notice for 1998
was not returned to respondent by the U.S. Postal Service.
Conclusion
In view of the foregoing, we hold that the deficiency notice
for 1998 was valid because it was sent to petitioner at her last
known address. Accordingly, because petitioner did not file her
petition within the time prescribed by section 6213(a) or section
7502, we lack jurisdiction to redetermine petitioner’s tax
liability for 1998, and we are left with no alternative but to
grant respondent's motion to dismiss for lack of jurisdiction.4
4
Although petitioner cannot pursue her case for 1998 in
this Court, she is not without a judicial remedy. Specifically,
petitioner may pay the tax, file a claim for refund with the
Internal Revenue Service, and, if her claim is denied, sue for a
refund in the appropriate Federal District Court or the U.S.
Court of Federal Claims. See McCormick v. Commissioner, 55 T.C.
138, 142 (1970). Moreover, if petitioner did not receive the
deficiency notice for 1998 within such time as to file a timely
petition with this Court, petitioner may have administrative and
judicial remedies before respondent may legally commence enforced
collection action against her. See secs. 6330(c)(2)(B), 6320(c).
Finally, we note that the granting of respondent’s motion to
dismiss for lack of jurisdiction will in no way preclude the
parties from administratively resolving the substantive issues
for 1998.
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Reviewed and adopted as the report of the Small Tax Case
Division.
In order to give effect to the foregoing,
An order granting respondent's
motion and dismissing this case for lack
of jurisdiction will be entered.