T.C. Memo. 2002-284
UNITED STATES TAX COURT
EMMITT HASKELL PACK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7830-02. Filed November 19, 2002.
Emmitt Haskell Pack, pro se.
Michael J. O’Brien and Richard Charles Grosenick, for
respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s Motion to Dismiss for Lack of Jurisdiction. With
regard to the taxable year 1999, respondent contends that this
case should be dismissed on the ground that the petition was not
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timely filed pursuant to section 6213(a) or section 7502.1 With
regard to the taxable year 2000, respondent contends that this
case should be dismissed on the ground that no notice of
deficiency, as authorized by section 6212 and required by section
6213(a) to form the basis for a petition to this Court, has been
sent to petitioner, nor has respondent made any other
determination that would serve to confer jurisdiction on this
Court.
As discussed in detail below, we shall grant respondent’s
motion to dismiss.
Background
In January 1999, Emmitt Haskell Pack (petitioner) and Jennie
S. Pack (Ms. Pack) filed electronically a joint Federal income
tax return for the taxable year 1998. In conjunction with the
filing of their return, petitioner and Ms. Pack, as well as their
return preparer, executed Form 8453 (1998), U.S. Individual
Income Tax Declaration for Electronic Filing, on January 29,
1999. The address listed on the Form 8453 was Rt. 1, Box 2115,
Stilwell, OK 74960 (the Stilwell address).
In February 2000, petitioner filed electronically a Federal
income tax return for the taxable year 1999. In conjunction with
the filing of his return, petitioner, as well as his return
1
Unless otherwise indicated, 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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preparer, executed Form 8453 (1999), U.S. Individual Income Tax
Declaration for an IRS e-file Return, on February 4, 2000. The
address listed on the Form 8453 was the Stilwell address.
Petitioner’s return for 1999, which was filed on a head-of-
household basis, reported zero income tax and claimed a refund in
the amount of $4,231. The latter amount consisted of withholding
in the amount of $481 and an earned income credit in the amount
of $3,750. Respondent never issued a refund check but rather
“froze” petitioner’s account.
In March 2000, respondent commenced an examination of
petitioner’s 1999 return. The examination focused on filing
status, dependency exemption deductions, and the earned income
credit.
On or about September 1, 2000, respondent issued a 30-day
letter proposing a deficiency in petitioner’s Federal income tax
for 1999. The 30-day letter stated, in part, as follows:
Thank you for your replies dated April 4 and May 24,
2000. To follow is a list of what we received:
* * * These documents do not allow us to establish
that you meet the requirements for these issues
involved. * * *
On December 6, 2000, respondent sent a notice of deficiency
to petitioner. In the notice, respondent determined a deficiency
in petitioner’s Federal income tax for the taxable year 1999 in
the amount of $4,714. The deficiency was attributable
principally to the disallowance of the earned income credit
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($3,750); the balance of the deficiency ($964) was attributable
to a change in petitioner’s filing status (from head-of-household
to married filing separately) and the disallowance of two
dependency exemption deductions.
Respondent sent the notice of deficiency to petitioner by
certified mail addressed to him at the Stilwell address.
However, petitioner did not receive the notice, and, on or about
January 17, 2001, it was returned to respondent by the Postal
Service.2 Thereafter, on June 11, 2001, respondent assessed the
deficiency against petitioner.
On June 14, 2001, petitioner filed a Federal income tax
return (Form 1040) for the taxable year 2000. On his return,
petitioner listed his address as 13410 North Webster Road,
Tahlequah, Oklahoma 74464.3 On his return, petitioner reported
zero tax and claimed a refund in the amount of $401. The latter
amount consisted of withholding in the amount of $185 and an
earned income credit in the amount of $216. Respondent applied
$185 of the claimed refund against petitioner’s outstanding
2
It is not completely clear why the notice of deficiency
was returned to respondent by the Postal Service. A partial copy
of the envelope in which the notice was apparently mailed bears a
stamp “not deliverable as addressed”; however, a second (but
incomplete) stamp, together with handwriting, suggests that the
envelope was returned to respondent unclaimed after two attempts
at delivery.
3
Each of the three Forms W-2, Wage and Tax Statements,
that accompanied petitioner’s income tax return for 2000
identified the Stilwell address as petitioner’s address.
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liability for 1999.4
On April 24, 2002, the Court received and filed an
(imperfect) petition.5 The petition, which is dated April 12,
2002, and is little more than a request for forms to file a
petition for redetermination, does focus on the fact that “my
1999 Income Tax Refund check was stopped”. The petition arrived
at the Court by regular, first-class mail in an envelope bearing
a postmark date of April 15, 2002.
On May 31, 2002, petitioner filed an amended petition. In
his amended petition, petitioner purports to disagree with “tax
deficiencies for the years 1999 and 2000". The gist of
petitioner’s complaint, however, appears to be the nonreceipt of
tax refunds for 1999 and 2000 in the amounts of $4,231 and $401,
respectively. Petitioner attached to his amended petition a copy
of a letter to Commissioner Rossotti, the “in re” of which read:
1999 INCOME TAX REFUND CHECK ( 1040 1999 )
* * * What has happened to my Refund Check?
4
The record suggests that respondent may have disregarded
the portion of petitioner’s refund claim allocable to the earned
income credit because of sec. 32(c)(2)(B)(iv), which provides
that “no amount received for services provided by an individual
while the individual is an inmate at a penal institution shall be
taken into account” in determining the individual’s “earned
income”. In the absence of earned income, there is no basis for
an earned income credit. Sec. 32(a).
5
At the time that the petition was filed, petitioner was
in the custody of the Oklahoma Department of Corrections in
Helena, Oklahoma.
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As indicated, respondent filed a Motion to Dismiss for Lack
of Jurisdiction on the ground that the petition, insofar as it
relates to the taxable year 1999, was not timely filed, and
insofar as it relates to the taxable year 2000, was not filed in
respect of a notice of deficiency or other determination that
would serve to confer jurisdiction on the Court.
Petitioner filed a Reply to respondent's motion, asserting
that he had not received the notice of deficiency and that he had
been incarcerated since “February or March 2000", perhaps
implying that the notice of deficiency had not been mailed to him
at his last known address. Petitioner also expressed continuing
concern regarding “the taxable year 1999 refund check”. Finally,
petitioner alleged that he never authorized the electronic filing
of any return for 1999.
This matter was called for hearing at the Court's Motions
Sessions in Washington, D.C., on September 25, 2002, and October
23, 2002. Counsel for respondent appeared at the hearings and
offered argument and exhibits in support of respondent's motion.
There was no appearance by or on behalf of petitioner at the
hearings, nor did petitioner file a written statement with the
Court pursuant to Rule 50(c), the provisions of which were noted
in the Court’s orders calendaring respondent’s motion for
hearing.
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Discussion
The Tax Court, like all Federal courts, is a court of
limited jurisdiction, and we may exercise our jurisdiction only
to the extent authorized by Congress. Naftel v. Commissioner, 85
T.C. 527, 529 (1985). 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); 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. It is sufficient for jurisdictional purposes if
the Commissioner mails the notice of deficiency to the taxpayer
at the taxpayer's "last known address". Sec. 6212(b); Frieling
v. Commissioner, 81 T.C. 42, 52 (1983). If a notice of
deficiency is mailed to the taxpayer at the taxpayer's last known
address, actual receipt of the notice by the taxpayer is
immaterial. 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, supra at 52. The
taxpayer, in turn, 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 in
this Court for a redetermination of the deficiency. Sec.
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6213(a). Pursuant to section 7502(a), a timely mailed petition
will be treated as though it were timely filed.
A. Taxable Year 1999
There is no question that respondent mailed the notice of
deficiency for 1999 to petitioner on December 6, 2000. However,
the petition was not filed with the Court until April 24, 2002, a
date more than 16 months after the mailing of the notice of
deficiency. Moreover, the envelope in which the petition was
mailed to the Court bears a U.S. Postal Service postmark date of
April 15, 2002. Under these circumstances, it follows that the
petition was not filed within the 90-day period prescribed by
section 6213(a) and that we must dismiss this case for lack of
jurisdiction.
Notwithstanding the foregoing, because of the suggestion
that the notice of deficiency for 1999 was not mailed to
petitioner at his 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
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published opinion 935 F.2d 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, 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); see sec. 301.6212-2, Proced. & Admin. Regs.
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 notice of deficiency for 1999 to the
address listed on petitioner's 1999 return--the last return filed
by petitioner prior to the mailing of such notice on December 6,
2000.6 Consequently, the notice of deficiency for 1999 was
6
Petitioner’s allegation that he never authorized the
filing of an electronic return for 1999 is inconsistent with his
(continued...)
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mailed to petitioner at his last known address unless petitioner
can demonstrate: (1) He provided respondent with clear and
concise notice of a change of address; or (2) prior to the
mailing of the notice of deficiency, 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 any change of
address. Nor is there anything in the record to suggest that
respondent knew about such change of address. Indeed, the record
indicates that during the examination phase of this case,
respondent communicated with petitioner at the Stilwell address.
In view of the foregoing, we hold that the notice of
deficiency was valid because it was sent to petitioner at his
last known address. Accordingly, because petitioner did not file
6
(...continued)
concern, expressed throughout this case, about the status of his
refund for that year. Petitioner has not suggested, much less
demonstrated, that he filed some other return for 1999 claiming a
refund for that year. However, assuming arguendo that petitioner
did not authorize the filing of an electronic return for 1999,
the fact remains that petitioner’s 1998 return lists the Stilwell
address, which would still constitute petitioner’s last known
address. See Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988);
sec. 301.6212-2, Proced. & Admin. Regs.
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his petition within the time prescribed by section 6213(a) or
section 7502, we lack jurisdiction to redetermine the deficiency
for 1999, and we must grant respondent's motion to dismiss for
lack of jurisdiction as to that year.7
B. Taxable Year 2000
Petitioner admits that he “has never received any notice of
deficiency” for 2000, and respondent adamantly asserts that no
notice of deficiency or other jurisdictionally-relevant notice
has been issued to petitioner for that taxable year. There is
nothing in the record to belie respondent’s assertion.
In the absence of a valid notice, this Court lacks
jurisdiction. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22
(1989); Normac, Inc. v. Commissioner, 90 T.C. 142 (1988). Thus,
in the present case, we lack jurisdiction over the taxable year
2000, and we must therefore grant respondent's motion to dismiss
for lack of jurisdiction as to that year.
7
Although petitioner cannot pursue his case for 1999 in
this Court, he is not without a judicial remedy. Specifically,
petitioner may pay the tax, file a claim for refund with the
Internal Revenue Service, and, if his 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). 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 1999, an approach that respondent has
offered to pursue.
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Conclusion
To give effect to the foregoing,
An order granting respondent’s
motion and dismissing this case for
lack of jurisdiction will be entered.