T.C. Memo. 2006-18
UNITED STATES TAX COURT
KIMBERLEY A. PARLIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4904-05. Filed February 6, 2006.
Stephen K. Midgley, for petitioner.
Louise R. Forbes, for respondent.
MEMORANDUM OPINION
THORNTON, Judge: This case is before us on respondent’s
motion to dismiss for lack of jurisdiction. For the reasons
stated below, we must grant respondent’s motion.
Background
On February 11, 2004, petitioner executed Form 2848, Power
of Attorney and Declaration of Representative, appointing
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Stephen K. Midgley (Mr. Midgley) as her attorney in fact. The
Form 2848 states that “Original notices and other written
communications will be sent to you and a copy” to the listed
representative, unless a box were checked indicating that the
taxpayer wanted a different arrangement. Petitioner left
unchecked the box on the Form 2848 whereby she could have
indicated that she wanted Mr. Midgley to receive the original,
and herself a copy, of such notices or communications.1
By Final Notice dated November 29, 2004, respondent denied
petitioner’s request for relief from joint and several liability
pursuant to section 6015.2 Respondent sent the Final Notice to
petitioner’s last known address, the address shown on the Final
Notice, by certified mail. On December 10, 2004, petitioner
faxed a partial copy of the Final Notice to Mr. Midgley.
On March 14, 2005, petitioner filed her petition, postmarked
March 7, 2005, challenging respondent’s adverse determination in
the Final Notice. On June 28, 2005, respondent filed a motion to
dismiss this case for lack of jurisdiction. On August 3, 2005,
petitioner filed her objection to respondent’s motion. On
October 17, 2005, a hearing was held on respondent’s motion.
1
Petitioner also left unchecked the box whereby she could
have indicated that she wanted no notices or communications sent
to Mr. Midgley.
2
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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Discussion
The jurisdiction of this Court depends on the timely filing
of a petition. Rule 13(c). Section 6015(e)(1)(A) requires that
a petition to determine relief from joint and several liability
must be filed no later than the close of the 90th day after “the
date the Secretary mails, by certified or registered mail to the
taxpayer’s last known address, notice of the Secretary’s final
determination of relief available to the individual”.
It is undisputed that the Final Notice denying petitioner’s
administrative request for relief from joint and several
liability was sent to petitioner’s last known address by
certified mail on November 29, 2004. Thus, pursuant to section
6015(e)(1)(A)(ii), the petition was required to be filed by the
close of February 27, 2005. The petition was postmarked March 7,
2005, and was not filed until March 14, 2005. Accordingly, the
petition was untimely, and this case must be dismissed for lack
of timely filing of a petition.
In opposing respondent’s motion to dismiss, petitioner
alleges various procedural defects in respondent’s issuance of
the Final Notice. Any such procedural defects, however, would
not operate to give this Court jurisdiction where the petition
was not filed in the 90-day period prescribed by section
6015(e)(1)(A); at most, such procedural defects might implicate
an issue as to whether this case should be dismissed for
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respondent’s failure to issue a valid Final Notice, rather than
for lack of timely filing of a petition. See Keeton v.
Commissioner, 74 T.C. 377, 379 (1980) (involving failure to file
a timely petition challenging a notice of deficiency under
section 6213(a)). As discussed below, petitioner has not shown
that respondent failed to issue a valid Final Notice.
Petitioner alleges that respondent never sent a copy of the
Final Notice directly to Mr. Midgley, as directed on petitioner’s
Form 2848. Petitioner contends that pursuant to Massachusetts
law, respondent’s alleged failure to give notice to petitioner’s
counsel was “an unfair and deceptive trade practice”.
The Form 2848, as executed by petitioner, did not authorize
respondent to mail an original document to Mr. Midgley, nor did
it indicate that she had moved to a new address. Accordingly, it
did not change petitioner’s last known address for purposes of
section 6015(e)(1)(A)(ii) or otherwise affect the mailing
requirements of that section. See Houghton v. Commissioner, 48
T.C 656, 661 (1967) (similarly construing mailing requirements
for notices of deficiency under section 6212). Respondent’s
alleged failure to send a copy of the Final Notice to
petitioner’s attorney did not extend the 90-day filing period.
See id.; Allen v. Commissioner, 29 T.C. 113, 117 (1957).
Petitioner acknowledges that she received the Final Notice
dated November 29, 2004, but complains vaguely that she did not
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receive it “until later in time”. Under the statute, however, it
is the mailing and not the taxpayer’s receipt (which almost
inevitably will be later) of the Final Notice that starts the
running of the 90-day period. In any event, petitioner obviously
had received the Final Notice by December 10, 2004, when she
faxed at least part of it to Mr. Midgley.
Petitioner alleges that the Final Notice failed to state a
90-day time period for filing a petition in the Tax Court. The
evidence on this point is inconclusive.3 Section 6015, however,
contains no requirement that the notice of the Secretary’s final
determination of relief specify the time period in which the
taxpayer must petition the Tax Court.4 Accordingly, failure to
specify such a time period does not render the Final Notice
3
The only copy of the Final Notice that has been submitted
to the Court appears to be the partial copy that petitioner faxed
to Mr. Midgley on Dec. 10, 2004. At the hearing, Mr. Midgley
indicated that petitioner had failed to “fax both sides of the
page. Apparently, she wasn’t aware that there were two sides to
the page”.
4
By contrast, in notices of deficiency mailed after Dec.
31, 1998, the IRS is required to specify the date determined by
the IRS as the last day on which the taxpayer may file a petition
with the Tax Court. Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3463(a), 112 Stat. 767.
Respondent’s failure to provide the petition date as required,
however, has not been construed to render the notice of
deficiency invalid. Rochelle v. Commissioner, 116 T.C. 356
(2001), affd. 293 F.3d 740 (5th Cir. 2002); Smith v.
Commissioner, 114 T.C. 489 (2000), affd. 275 F.3d 912 (10th Cir.
2001).
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invalid or alter the 90-day filing period pursuant to section
6015(e)(1)(A).
Mr. Midgley contends that an IRS employee informed him that
he had until March 17, 2005, to petition the Tax Court.
Erroneous legal advice by an IRS employee, however, does not
generally bind the Commissioner and does not affect, by estoppel
or otherwise, the jurisdictional requirement for a timely filed
petition. See Elgart v. Commissioner, T.C. Memo. 1996-379 (and
cases cited therein).
In any event, it was petitioner’s and Mr. Midgley’s
responsibility to file the petition on time. When petitioner
faxed him the partial copy of the Final Notice, Mr. Midgley had
79 days left to file a petition in the Tax Court. Mr. Midgley
holds himself out as an experienced attorney who has “filed many
applications for innocent spouse relief in the past”. We do not
find convincing or satisfactory Mr. Midgley’s unquestioning
reliance on informal advice provided by an IRS employee as to the
critical date for filing the Tax Court petition. Nor is
petitioner availed by Mr. Midgley’s proffered explanation that he
was unable to file the petition on time because of his
“workload”.
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Accordingly, we must grant respondent’s motion to dismiss
for lack of jurisdiction for lack of timely filing of a petition.
An appropriate order
of dismissal will be entered.