T.C. Memo. 2003-242
UNITED STATES TAX COURT
WILLIAM R. DUREN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13566-01. Filed August 13, 2003.
William R. Duren, pro se.
Edwin A. Herrera and Hieu Nguyen, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This case is before the Court on
respondent’s motion to dismiss for lack of jurisdiction and to
strike as to the taxable years 1996, 1997, and 1999 (motion to
dismiss). 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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Background
Petitioner timely electronically filed his 1997 Federal
income tax return. On his 1997 tax return, petitioner listed his
address as 992 1/2 East 46th St., Los Angeles, CA 90011 (L.A.
address).
On or about March 13, 1999, petitioner was incarcerated in
California State prison. Petitioner was imprisoned in facilities
at the following locations: (1) Delano, California, from March
until May 1999, (2) Susanville, California, from May 1999 until
June 2000, (3) Soledad, California, from June 2000 until
September 2001, and (4) Norco, California, from September 2001
until February 2002.
Prior to his incarceration, petitioner obtained a post
office box for all his mail to be sent while he was incarcerated.
The post office box address was P.O. Box 1830, Hawthorne, CA
90251-1830 (Hawthorne address). Petitioner gave keys to the post
office box to his mother and sister so they could pick up his
mail for him. At the time he was incarcerated, however,
petitioner did not advise respondent of a change of address.
On June 23, 1999, respondent received a Form 1040, U.S.
Individual Income Tax Return, for 1998 bearing petitioner’s name
(1998 Form 1040). The front page of the 1998 Form 1040 listed
petitioner’s address as P.O. Box 1830, Los Angeles, California
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90011.1 The Schedule C, Profit or Loss From Business, and Form
1040V, Payment Voucher, attached to the 1998 Form 1040, however,
listed the L.A. address. The “P.O. Box 1830” on the front page
of the 1998 Form 1040 was handwritten; the remainder of the
return was filled in with a typewritten/computer generated font.
The handwritten “P.O. Box 1830” was not in petitioner’s
handwriting. Petitioner did not prepare or sign the 1998 Form
1040. Petitioner was not sure who prepared the 1998 Form 1040
for him, but believed it was either H&R Block or his mother.
On August 4, 1999, respondent mailed petitioner a statutory
notice of deficiency for 1997. Respondent mailed the notice of
deficiency for 1997 to the L.A. address.
On August 9, 1999, even though it was unsigned, respondent
processed the 1998 Form 1040, and entered it into respondent’s
computer system.
Sometime in late 1999, while imprisoned at the Susanville,
California, facility, petitioner contacted respondent by letter
because he was concerned about filing his 1999 income tax
returns.
On September 27, 1999, the Internal Revenue Service (IRS)
mailed a letter, dated September 21, 1999, to petitioner in
Susanville, California. In this letter, the IRS thanked
1
This address combined part of the L.A. address and part
of the Hawthorne address.
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petitioner for his cooperation. The letter was signed by Derome
Bratvold, Chief, Adjustments Branch. This was the first response
petitioner received from respondent. Petitioner was not sure
what year or what issues the September 21, 1999, letter regarded.
Petitioner, however, believed that this letter was in response to
his concerns regarding filing his 1999 income tax return.
In a November 16, 2000, letter from the IRS, mailed to
petitioner in Soledad, California, the IRS thanked petitioner for
his interest in paying his delinquent taxes and for submitting a
financial statement Form 433-F, Collection Information Statement.
The letter referenced petitioner’s 1997 tax year, acknowledged
that petitioner was in State prison, apologized for any
inconvenience the IRS caused petitioner, and thanked him for his
cooperation. This letter was signed by M. Brown, Chief, Accounts
Management Branch 2.
Petitioner never contacted respondent to specifically direct
respondent to use a different address than the L.A. address. On
July 26, 2001, however, respondent mailed petitioner a notice of
deficiency for 1998 to his prison address.
On November 28, 2001, petitioner filed a petition with the
Court disputing respondent’s determinations for 1997 and 1998.2
2
The envelope containing the petition bears a postmark of
Oct. 2, 2001. We have previously noted that during this time
period the Court was experiencing significant anthrax-related
mail delays. Gibson v. Commissioner, T.C. Memo. 2002-218.
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At the time he filed the petition, petitioner resided in
California. The petition did not comply with the Rules of the
Court as to the form and content of a proper petition.
On December 4, 2001, the Court ordered petitioner to file an
amended petition on or before February 4, 2002, on the form
enclosed with the order.
On February 5, 2002, petitioner was paroled.
On February 19, 2002, petitioner filed an amended petition,
dated January 28, 2002,3 with the Court on the form provided to
him disputing his tax liabilities for 1996, 1997, 1998, and 1999.
Discussion
Our jurisdiction to redetermine a deficiency depends on 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); Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988);
Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); Pyo v.
Commissioner, 83 T.C. 626, 632 (1984). The Court’s jurisdiction
is strictly limited by statute, and unless a petition is filed
within the time prescribed by statute, we lack jurisdiction and
must dismiss the case. See Estate of Moffat v. Commissioner, 46
T.C. 499, 501 (1966).
Section 6212(a) expressly authorizes the Commissioner, after
determining a deficiency, to send a notice of deficiency to the
3
See supra note 2.
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taxpayer by certified or registered mail. It is sufficient for
jurisdictional purposes if the Commissioner mails the notice of
deficiency to the taxpayer’s “last known address”. Sec.
6212(b)(1); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). The
taxpayer, in turn, has 90 days (or 150 days if the notice is
addressed to a person outside 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.
6213(a).
1996 and 1999
In the objection to the motion to dismiss, petitioner did
not object to the dismissal of 1996 and 1999. At the hearing,
petitioner agreed with respondent that he was not issued and did
not receive a notice of deficiency for 1996 or 1999 and that the
motion to dismiss should be granted for those years.
Accordingly, we shall grant the motion to dismiss with regard to
1996 and 1999.
1997
On August 4, 1999, respondent mailed the notice of
deficiency for 1997 to petitioner.4 On November 28, 2001,
4
As of the date of the mailing of the notice of
deficiency, sec. 301.6212-2, Proced. & Admin. Regs., regarding
the definition of “last known address”, was neither final nor
proposed. See 66 Fed. Reg. 2820 (Jan. 12, 2001) (final
regulation); 64 Fed. Reg. 63768 (Nov. 22, 1999) (proposed
regulation).
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petitioner filed the petition with the Court in an envelope
bearing a postmark of October 2, 2001. Accordingly, the Court
received and filed the petition, which was postmarked more than
90 days after the mailing of the notice of deficiency for 1997.
Thus, the issue is whether respondent sent the notice of
deficiency for 1997 to petitioner’s last known address.
A taxpayer can have only one last known address on the date
that a notice of deficiency is issued. Abeles v. Commissioner,
supra at 1030. What knowledge the Commissioner has acquired
concerning the taxpayer’s address is a question of fact. King v.
Commissioner, 857 F.2d 676, 678, 679 (9th Cir. 1988), affg. 88
T.C. 1042 (1987). The Commissioner must exercise reasonable
diligence in ascertaining the taxpayer’s correct address;
however, he is entitled to treat the address appearing on a
taxpayer’s return as the last known address in the absence of
clear and concise notification from the taxpayer directing the
Commissioner to use a different address. Id.; Abeles v.
Commissioner, supra at 1035. A subsequently filed tax return
with a new address may give the Commissioner notice of a change
of address. King v. Commissioner, supra at 679, 680.
“Correspondence bearing an address different from that on the
most recent return does not, by itself, constitute clear and
concise notice. * * * In order to supplant the address on
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his/her most recent return, the taxpayer must clearly indicate
that the former address is no longer to be used.” Id. at 681.
After becoming aware of a taxpayer’s change of address, the
Commissioner must exercise reasonable care and diligence in
ascertaining and mailing the notice of deficiency to the correct
address. Monge v. Commissioner, supra at 33. This obligation,
however, arises only if the Commissioner becomes aware of an
address change prior to mailing the deficiency notice. Id.
The taxpayer’s “most recently filed return” is the return
which has been properly processed by an IRS service center such
that the address appearing on the return was available to the
Commissioner’s agent when that agent prepared the notice of
deficiency concerning the previously filed return. Abeles v.
Commissioner, supra at 1035. The address from the more recently
filed return is available to the agent issuing the notice of
deficiency concerning the previously filed return if such address
could be obtained by a computer generation of an IRS computer
transcript using the taxpayer’s identification number. Id.
Petitioner’s contention that the notice of deficiency for
1997 was not sent to his last known address is incorrect for
several reasons.
First, petitioner did not file a “return” for 1998. The
1998 Form 1040 that petitioner sent to the IRS was unsigned.
“[I]n order for a Form 1040 to constitute a valid income tax
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return it must be signed by the taxpayer under penalties of
perjury.” Cupp v. Commissioner, 65 T.C. 68, 78 (1975), affd.
without published opinion 559 F.2d 1207 (3d Cir. 1977).
Accordingly, petitioner’s most recently filed “return” at the
time of the mailing of the notice of deficiency for 1997 appears
to be his 1997 return. Cf. King v. Commissioner, supra at 681.
Second, even if the 1998 Form 1040 is considered to be a
subsequently filed tax return, it did not operate to change
petitioner’s last known address for purposes of the notice of
deficiency for 1997. Even though the 1998 Form 1040 was not
signed, respondent processed the 1998 Form 1040. Respondent
entered the 1998 Form 1040 into his computer system on August 9,
1999--5 days after the mailing of the notice of deficiency for
1997. Accordingly, respondent was not aware of a change of
address prior to mailing the notice of deficiency for 1997.
In Williams v. Commissioner, 935 F.2d 1066 (9th Cir. 1991),
affg. T.C. Memo. 1989-439, the taxpayer filed a return showing a
new address on April 15, 1987. This new return, however, had not
been processed by the IRS so as to be available through a
computer inquiry by the agent who sent the notice of deficiency
on June 17, 1987. The U.S. Court of Appeals for the Ninth
Circuit agreed with us that: (1) The reasonable business
requirements of the IRS necessitated time for the processing of
the filed return through its computer facilities in order for the
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new address to be “available”; (2) the amount of time between the
filing of the return and the date of the notice of deficiency--63
days--did not exceed a reasonable time for processing the
information; and (3) the change of address was not reasonably
available to the agent sending the notice of deficiency. Id. at
1068.
In the case at bar, respondent processed the 1998 Form 1040,
even though it was unsigned, in 47 days. The amount of time
between the receipt of the 1998 Form 1040 and the date of the
notice of deficiency--only 42 days--did not exceed a reasonable
time for processing the information. Accordingly, the change of
address was not reasonably available to the agent sending the
notice of deficiency for 1997.5 Id.
Third, petitioner’s correspondence with respondent was
insufficient to alert respondent of a change of address. King v.
Commissioner, supra at 681. Petitioner testified at the hearing:
“Oh, no, I never wrote them specifically stating that here is my
change of address. I just wrote them from different addresses
with different issues.” Petitioner never provided a clear and
concise notification of a change of address to respondent.
5
We note that if this change of address had been
available, it was unlikely that petitioner would have received
the notice of deficiency for 1997. The address on the front of
the 1998 Form 1040 was a combination of the L.A. address and the
Hawthorne address. Additionally, two letters respondent sent to
this address were returned to respondent by the U.S. Postal
Service as undeliverable because there was no such address.
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With regard to the notice of deficiency for 1997, this is
not an instance of repeated contact by a taxpayer from a single
address over a long period of time prior to the issuance of the
notice of deficiency.6 In this case, it is not clear whether
petitioner contacted the IRS prior to the mailing of the notice
of deficiency for 1997.7 Furthermore, petitioner’s first letter
to the IRS concerned questions regarding filing his income tax
return for 1999.
We hold that respondent mailed the notice of deficiency for
1997 to petitioner’s last known address and petitioner failed to
timely file a petition for 1997. Accordingly, we shall grant the
motion to dismiss with regard to 1997.
To reflect the foregoing,
An appropriate order
will be issued.
6
In fact, after petitioner had established regular contact
with respondent for a period of almost 2 years, respondent mailed
the notice of deficiency for 1998 to petitioner at his prison
address.
7
The Sept. 21, 1999, letter to petitioner in Susanville,
Calif., is the earliest letter petitioner received from
respondent.