T.C. Memo. 2005-148
UNITED STATES TAX COURT
DAVID BROOMFIELD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4849-03L. Filed June 21, 2005.
David Broomfield, pro se.
Mark D. Petersen, for respondent.
MEMORANDUM OPINION
GALE, 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
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6330(d)(1).1 Petitioner filed an objection to respondent's
motion. The parties then filed seriatim responses to
petitioner's objection. A hearing was held on respondent's
motion. Petitioner, who is incarcerated, did not appear but
instead submitted a statement under Rule 50(c). Respondent
offered the testimony of the settlement officer who handled
petitioner's request for a hearing under section 6330. We base
our findings on the facts that are not in dispute, petitioner's
submissions, and various documents from petitioner's
administrative file in the record. We rely on respondent's
witness's testimony only to the extent it contains admissions or
establishes the foundation for admitting the material in
petitioner's administrative file.
Background
Petitioner was incarcerated at Oakhill Correctional
Institution in Oregon, Wisconsin, at the time the petition was
filed.
On April 30, 2002, a Final Notice - Notice of Intent to Levy
and Notice of Your Right to a Hearing, was mailed to petitioner
at 3401 West Wanda Avenue, Milwaukee, Wisconsin ("Wanda Avenue
address"), regarding unpaid Federal income taxes for 1991. On
1
Unless otherwise indicated, all 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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May 29, 2002, petitioner timely requested a hearing by filing a
Form 12153, Request for a Collection Due Process Hearing, in
which he listed the Wanda Avenue address as his address.
On September 4, 2002, the settlement officer assigned to
petitioner's case mailed an acknowledgment letter and Appeals
process flyer to petitioner at the Wanda Avenue address. An
assignment letter, requesting that petitioner contact the Appeals
Office to schedule a hearing, was sent to petitioner's Wanda
Avenue address on September 12, 2002. After no response was
received with respect to the foregoing letters, the settlement
officer confirmed the Wanda Avenue address as the address of
petitioner recorded on respondent's Integrated Data Retrieval
System (IDRS), and sent a second assignment letter to the Wanda
Avenue address on October 2, 2002, requesting that petitioner
contact her by November 5, 2002. Petitioner responded to this
letter by telephoning the settlement officer on November 5, 2002;
they conducted a hearing over the telephone at that time.
Petitioner advised the settlement officer of his belief that
he was due a refund with respect to his 1991 tax year and of his
desire to file a corrected return for 1991. (Petitioner claimed
to have filed previously for 1991.) Petitioner requested that
the settlement officer provide him a return form for completion
and filing. Petitioner further requested return forms for 1997
and 2001 so that he could become current in his filing
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obligations. In the course of this discussion, petitioner
advised the settlement officer that he would be going to jail.
On the day after their telephone conversation (November 6,
2002), the settlement officer mailed a letter to petitioner at
the Wanda Avenue address which enclosed return forms for 1991 and
1997 through 2001, and set a December 11, 2002, deadline for
petitioner to submit completed returns for these years.
On November 14, 2002, petitioner was incarcerated in the
Wisconsin State prison system.
Petitioner did not submit the completed returns or any other
materials by the December 11 deadline.
On January 30, 2003, respondent mailed a notice of
determination, dated January 30, 2003, regarding the proposed
levy for 1991 to the Wanda Avenue address using certified mail,
return receipt requested. Respondent received a return receipt
card indicating that the notice of determination was accepted at
the Wanda Avenue address on January 31, 2003. The Wanda Avenue
address was also the address given in the most recent Federal
income tax return that petitioner filed prior to the mailing of
the notice of determination; namely, petitioner's return for 1996
received by respondent on August 21, 1997.
On March 11, 2003, the settlement officer received a letter
from petitioner, dated February 28, 2003, and postmarked March
10, 2003, advising that he had been incarcerated since November
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14, 2002, had had no mail forwarded to him by prison authorities,
and therefore had been unable to complete the 1991 return or any
of the other return forms as requested by the settlement officer.
Petitioner sought a "further extension of time" to file a return
for 1991. Petitioner further requested that all materials be
"retransmitted" to him at Oakhill Correctional Institution, 5212
County Hwy. M, P.O. Box 938, Oregon, Wisconsin.
On March 21, 2003, 50 days after respondent mailed the
notice of determination, the Court received a document from
petitioner that was filed as his petition for lien or levy
action. The document was in an envelope postmarked March 15,
2003. Respondent subsequently filed a motion to dismiss for lack
of jurisdiction.
Discussion
Section 6330 establishes the procedures for administrative
and judicial review of actions to collect by levy. Section
6330(a) provides that no levy may be made on any property or
right to property of any person unless the Secretary has notified
such person in writing of the right to a hearing before the levy
is made.
If a hearing is requested, it is held by the Internal
Revenue Service Office of Appeals. Sec. 6330(b). Following the
hearing, the Appeals officer will issue a written determination
setting forth his findings and decisions. Sec. 301.6330-
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1(e)(3)(Q&A-E8)(i), Proced. & Admin. Regs. Section 6330(d)(1)
provides that a person may, within 30 days of a determination,2
appeal the determination to the Tax Court or, if the Tax Court
does not have jurisdiction over the underlying tax liability, to
a Federal District Court.
The Tax Court 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 under section 6330 depends on the issuance
of a valid notice of determination and the filing of a timely
petition for review. See Sarrell v. Commissioner, 117 T.C. 122,
125 (2001); Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
It follows that when a petition is not timely filed, we are
obliged to dismiss the case for lack of jurisdiction. See McCune
v. Commissioner, 115 T.C. 114, 118 (2000).
In his motion, respondent argues that the petition is
untimely and that the Court therefore lacks jurisdiction.
Petitioner maintains that his incarceration and subsequent
transfers within the Wisconsin prison system prevented him from
receiving mail from November 14, 2002, through at least March 2,
2003. Therefore, petitioner argues that he did not receive the
2
Sec. 301.6330-1(f)(1), Proced. & Admin. Regs., clarifies
that this 30-day period commences on the day after the date of
the notice of determination.
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notice of determination with sufficient time to file a timely
petition with this Court.3
Although, section 6330(d) does not specify the means by
which the Commissioner is required to give notice of a
determination made under section 6330, we have held that use of
the method authorized in section 6212(a) and (b) for notices of
deficiency is sufficient. Weber v. Commissioner, 122 T.C. 258,
261-262 (2004). Thus, if a notice of determination is sent by
certified or registered mail to the taxpayer at his last known
address, it is sufficient and valid for purposes of commencing
the 30-day period in which the petition must be filed, regardless
of whether the taxpayer actually receives the notice in time to
petition the Court. Id. at 262-263.
3
Petitioner argues in the alternative that we should extend
the period for him to file his petition under Fed. R. Civ. P.
6(b). Although the Federal Rules of Civil Procedure may be
instructive in the interpretation and application of our Rules,
see, e.g., Evans Publg., Inc. v. Commissioner, 119 T.C. 242, 249
(2002); Estate of Fulmer v. Commissioner, 83 T.C. 302, 309
(1984), this Court is governed by its own Rules, see sec. 7453.
This Court's counterpart to Fed. R. Civ. P. 6(b) is Rule 25(c).
See Explanatory Note to Rule 25(c), 60 T.C. 1080. Rule 25(c)
provides that the Court "in its discretion may make longer or
shorter any period provided by these Rules." (Emphasis added.)
Rule 25(c) then distinguishes the period "fixed by statute"
within which to file a petition with the Court to redetermine a
deficiency or a liability, and provides that such periods "cannot
be extended by the Court." Fed. R. Civ. P. 6(b) does not address
time periods fixed by statute and thus has little relevance here.
Consistent with Rule 25(c), we lack authority to extend the
period for filing a petition fixed by sec. 6330(d)(1).
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Respondent sent the notice of determination, dated January
30, 2003, by certified mail to the Wanda Avenue address on
January 30, 2003. The petition in this case was received by the
Court on March 21, 2003, in an envelope postmarked March 15, 20034
– that is, 50 and 44 days, respectively, after the date the
notice of determination was issued and mailed. Accordingly, our
jurisdiction depends on whether the Wanda Avenue address was
petitioner's last known address at the time the notice was
mailed.
The Court of Appeals for the Seventh Circuit, where an
appeal in this case would ordinarily lie, has indicated that a
taxpayer's last known address is the address which in light of
the circumstances the Commissioner reasonably believes is the
address at which the taxpayer wishes to be reached at the time
the notice of deficiency is sent. Eschweiler v. United States,
946 F.2d 45, 49-50 (7th Cir. 1991); Goulding v. United States,
929 F.2d 329, 331 (7th Cir. 1991). The Commissioner may rely on
the address found in the return being audited5 or the most recent
4
See sec. 7502(a)(1) and (2)(A); Rule 25(a).
5
The Court of Appeals for the Seventh Circuit has not
adopted the position of this Court and other Courts of Appeals
that the address on the taxpayer's most recently filed return
generally constitutes the last known address. Instead, the
address on a subsequently filed return is relevant but not
dispositive concerning the last known address. Compare Ward v.
Commissioner, 907 F.2d 517, 521 (5th Cir. 1990) (most recent tax
return filed), revg. 92 T.C. 949 (1989); Cylcone Drilling Inc. v.
(continued...)
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address in his files, unless there is "'clear and concise
notification from the taxpayer directing the Commissioner to use
a different address.'" Goulding v. United States, supra (quoting
McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981));
Eschweiler v. United States, supra; Abeles v. Commissioner, 91
T.C. 1019, 1035 (1988).
The burden falls on the taxpayer to give clear and concise
notification to the Commissioner of a change in address.
Eschweiler v. United States, supra at 48; Goulding v. United
States, supra at 331; Alta Sierra Vista, Inc. v. Commissioner, 62
T.C. 367 (1974). The Commissioner need only exercise reasonable
diligence in attempting to discover the taxpayer's last known
address. Eschweiler v. United States, supra at 48. Indeed, in
the view of the Court of Appeals for the Seventh Circuit, even
where the Commissioner has become aware that the address obtained
from the taxpayer may not be where he is currently residing, the
Commissioner is entitled to use such address absent clear and
concise notification from the taxpayer of a new address. Id. at
49 (even though aware that taxpayer's lease had expired for the
address Commissioner used, Commissioner entitled to use such
5
(...continued)
Kelley, 769 F.2d 662, 664 (10th Cir. 1985)(most recent tax return
filed); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984)
(most recent tax return filed); Abeles v. Commissioner, 91 T.C.
1019, 1035 (1988)(most recent tax return filed), with Eschweiler
v. United States, 946 F.2d 45, 48 (7th Cir. 1991); McPartlin v.
Commissioner, 653 F.2d 1185, 1190 (7th Cir. 1981).
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address absent clear and concise notification by taxpayer). In
determining whether the Commissioner acted with reasonable
diligence to identify the taxpayer's last known address, the
focus of the inquiry is the information the Commissioner had
available to him at the time the notice was mailed. Follum v.
United States, 128 F.3d 118, 119 (2d Cir. 1997); Eschweiler v.
United States, supra at 48. Whether the Commissioner has
discharged his obligation of reasonable diligence is a question
to be resolved upon the facts and circumstances of each case.
McPartlin v. Commissioner, supra.
When the taxpayer is incarcerated, we and other courts have
generally held that the Commissioner is entitled to treat an
address given in the return under audit, or in the return most
recently filed, as the last known address, even where the
Commissioner has some knowledge of the incarceration, absent
clear and concise notification by the taxpayer that the place of
incarceration or some other address should be used. See, e.g.,
Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); Snell v.
Commissioner, T.C. Memo. 1993-470, affd. without published
opinion 50 F.3d 16 (9th Cir. 1995); Agustin v. Commissioner, T.C.
Memo. 1992-167; Tirado v. Commissioner, T.C. Memo. 1979-448; cf.
United States v. Eisenhardt, 437 F. Supp. 247 (D. Md. 1977) (last
known address was place of incarceration where taxpayer advised
Commissioner of place and commencement date of incarceration).
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The exceptions have generally arisen where the knowledge that the
Commissioner possesses regarding the taxpayer’s incarceration is
quite specific and there is an infirmity in the last known
address on which the Commissioner seeks to rely. See DiViaio v.
Commissioner, 539 F.2d 231 (D.C. Cir. 1976)(notice not sent to
last known address where Commissioner aware that taxpayer had
been incarcerated in Atlanta penitentiary for 2 years and mailed
notice to warden there for service on taxpayer); Keeton v.
Commissioner, 74 T.C. 377 (1980)(Commissioner participated in
prosecution resulting in taxpayers' conviction for Federal tax
crimes, therefore taxpayers' whereabouts in Federal prison system
readily available to Commissioner; address on which Commissioner
relied not given on returns for years involved); O’Brien v.
Commissioner, 62 T.C. 543 (1974)(deficiency determined as a
result of Commissioner’s agent’s interview of taxpayer in jail;
neither address on which Commissioner relied had been provided by
taxpayer).
For the reasons discussed below, we conclude that the Wanda
Avenue address was petitioner’s last known address when
respondent mailed the notice of determination. The Wanda Avenue
address was the address reported by petitioner in the last return
he filed before respondent’s mailing of the notice of
determination; namely, his 1996 Federal income tax return,
received by respondent on August 21, 1997. Moreover, petitioner
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listed the Wanda Avenue address as his address on his Form 12153
submitted on May 29, 2002.6 See Schake v. Commissioner, T.C.
Memo. 2002-262 (address listed on request for hearing considered
in determining last known address for section 6330 purposes).
As the Wanda Avenue address was both the address reported in
petitioner’s most recently filed return and that listed in his
request for a hearing under section 6330, we conclude that it was
his last known address as of the commencement of his section 6330
hearing.7 The question becomes whether petitioner’s informing the
settlement officer of his pending incarceration caused any change
in the address that respondent was entitled to rely on as the
last known address when the notice of determination was mailed.
We conclude, in the circumstances of this case, that it does not.
According to the settlement officer's case notes and
correspondence with petitioner, in a telephone conference
6
In addition, petitioner responded to the settlement
officer’s followup letter of Oct. 2, 2002, sent to the Wanda
Avenue address. We note that the settlement officer sent the
Oct. 2, 2002, letter to the Wanda Avenue address only after
verifying that address in respondent's computerized IDRS file
listings of taxpayer addresses, as petitioner had failed to
respond to two earlier letters sent to the Wanda Avenue address
as followups to his request for a hearing.
7
Because the address reported in the most recently filed
return and that listed in the request for the sec. 6330 hearing
were the same, we have no occasion to consider whether the last
known address standard employed by the Court of Appeals for the
Seventh Circuit, which accords greater weight to the address on
the return currently under audit, should result in greater weight
being given to the address listed on the hearing request rather
than any different address in the most recently filed return.
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conducted on November 5, 2002, petitioner and the settlement
officer agreed that petitioner would submit tax returns for 1991
and 1997 through 2001, pursuant to a time frame that the
settlement officer would establish in her letter to petitioner
forwarding the necessary return forms. On November 6, 2002, the
settlement officer sent petitioner a letter (at the Wanda Avenue
address) forwarding the return forms and setting December 11,
2002, as the deadline for returning the completed forms.
Petitioner clearly received this letter, as he references the
December 11, 2002 deadline and acknowledges his agreement to
submit a 1991 return by then in his various submissions to the
Court. Petitioner was incarcerated on November 14, 2002, but he
did not contact the settlement officer before then or, indeed,
until his letter of February 28, 2003, advising of his new
address at the Oakhill Correctional Institution.8
We do not believe petitioner was unaware that his
incarceration would commence on November 14, 2002, when he spoke
with the settlement officer on November 5, 2002, or when he
received her November 6, 2002, letter shortly thereafter. The
8
In his various submissions, petitioner has at no point
claimed that he advised respondent of the date or place of his
incarceration prior to his Feb. 28, 2003, letter, notwithstanding
the fact that respondent claimed in support of his motion to
dismiss that petitioner "did not notify respondent of a new
address until March 11, 2003, when respondent's Appeals Office
received * * * [petitioner's] letter dated February 28, 2003, in
which petitioner notified respondent of a change of address."
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settlement officer concedes that petitioner had made her aware of
his pending incarceration in their November 5, 2002, conversation
but claims that petitioner did not advise her of any specifics
concerning the date or place. On the basis of the November 6,
2002, letter (which evidences the settlement officer's lack of
awareness of petitioner's imminent incarceration), and
petitioner's failure to claim otherwise,9 we find that petitioner
did not advise respondent of the date or place of his
incarceration prior to his letter of February 28, 2003. Indeed,
by his silence in the face of imminent incarceration, petitioner
allowed the settlement officer to be misled about his
whereabouts.
The caselaw concerning last known address generally places
the burden on the taxpayer to apprise the Commissioner through
clear and concise notification of any change of address,
including circumstances where the taxpayer has been incarcerated.
See Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); Snell
v. Commissioner, T.C. Memo. 1993-470; Agustin v. Commissioner,
T.C. Memo. 1992-167; Tirado v. Commissioner, T.C. Memo. 1979-448.
The rationale is that the place of incarceration may constitute a
temporary place of abode, and to require the Commissioner to keep
track of a taxpayer's whereabouts in these circumstances would
impose an "impossible administrative burden" on him. Cohen v.
9
See supra note 8.
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Commissioner, supra at 773. The exceptions to the taxpayer's
burden to provide clear and concise notification have occurred
where the Commissioner had at his disposal specific information
concerning the whereabouts of an incarcerated taxpayer. See
DiViaio v. Commissioner, 539 F.2d 231 (D.C. Cir. 1976); Keeton v.
Commissioner, 74 T.C. 377 (1980); O’Brien v. Commissioner, 62
T.C. 543 (1974).
Here, petitioner does not allege, and we do not find, that
he notified respondent that he wished any correspondence to be
sent to him at his place of incarceration prior to respondent's
mailing the notice of determination on January 30, 2003. While
petitioner informed the settlement officer that he would be going
to jail, this information "was not of sufficient clarity and
precision to fulfill petitioner's duty of providing clear and
concise notice of a definite change of address." Tirado v.
Commissioner, supra. Moreover, there is no allegation or
suggestion that respondent had some other means of knowing the
specifics of petitioner's incarceration, such that petitioner
might be relieved of his duty to provide clear and concise
notification of any change in address. Keeton v. Commissioner,
supra, is instructive. In that case, the Commissioner had
participated in the prosecution that led to the taxpayer's
conviction for Federal tax crimes. Thus, we concluded that the
Commissioner knew the taxpayer was in Federal prison and could
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have readily ascertained his whereabouts. Similarly, in DiViaio
v. Commissioner, supra, on which petitioner relies, the
Commissioner's knowledge of the taxpayer's place of incarceration
was patent, as the Commissioner mailed the notice of deficiency
to the warden at the Federal penitentiary in Atlanta for service
on the taxpayer. Here, there is no allegation or suggestion that
respondent knew, at the time the notice of determination was
mailed, whether petitioner was in the Federal or State penal
system, much less the precise location where petitioner was
incarcerated. Finally, we note that the notice of determination
mailed on January 30, 2003 to petitioner at the Wanda Avenue
address was accepted there on January 31, 2003, which suggests
that petitioner had made arrangements to receive mail there and
intended for mail to be sent there. See Snell v. Commissioner,
supra.
We accordingly hold that petitioner's last known address
when the notice of determination was mailed was the Wanda Avenue
address, to which the notice was mailed on January 30, 2003. The
notice was therefore sufficient to commence the 30-day period
within which petitioner could appeal the determination to the Tax
Court under section 6330(d). Weber v. Commissioner, 122 T.C.
258, 261-262 (2004). As the petition was postmarked on March 15,
2003 and delivered to the Court on March 21, 2003, or 44 and 50
days, respectively, after the issuance and mailing of the notice
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of determination, we are obliged to grant respondent's motion to
dismiss for lack of jurisdiction. Sarrell v. Commissioner, 117
T.C. 122 (2001); McCune v. Commissioner, 115 T.C. 114 (2000).
To reflect the foregoing,
An order of dismissal
for lack of jurisdiction
will be entered.