T.C. Summary Opinion 2007-171
UNITED STATES TAX COURT
MICHAEL EISLER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16470-06S. Filed September 27, 2007.
Michael Eisler, pro se.
Jason M. Kuratnik, for respondent.
CHABOT, Judge: This matter is before us 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
6330(d)1 or section 7502. The instant case is a collection case
1
Unless indicated otherwise, all section references are to
sections of the Internal Revenue Code of 1986 as in effect for
proceedings commenced on the day the petition in the instant case
was filed.
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brought under section 6330(d), and petitioner requested that
proceedings be conducted pursuant to the provisions of section
7463. Pursuant to section 7463(b), the decision to be entered is
not reviewable by any other court, and this opinion shall not be
treated as precedent for any other case.
The issue for decision is whether the notice of
determination was sent to petitioner’s last known address.
Background
When the petition was filed in the instant case, petitioner
resided in Philadelphia, Pennsylvania. Petitioner’s address in
Philadelphia, Pennsylvania, is, and at all times pertinent to the
instant proceeding has been, in ZIP Code 19111.
The notice of determination was sent to petitioner by
certified mail on June 20, 2006, and addressed to the correct
street and number in Philadelphia, but the ZIP Code in the
address was shown as 19114. As a result of the U.S. Postal
Service’s computer-assisted procedures, that notice of
determination was processed as though the ZIP Code was 19111.
Delivery was attempted, unsuccessfully, on June 23, 2006, and a
notice of attempted delivery was left at petitioner’s correct
address. The notice of determination was returned to respondent
as “unclaimed” on July 8, 2006.
Petitioner was hospitalized from about June 10 to about July
20, 2006, and so did not receive the notice of determination.
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The petition is dated August 9, 2006, and was received by
the Court and filed on August 22, 2006. The envelope in which
the petition was enclosed bears a U.S. Postal Service postmark of
August 15, 2006.
The notice of determination was sent to petitioner’s last
known address.
The petition was filed more than 30 days after respondent
sent the notice of determination.
Discussion
Section 6330(d)(1) provides that this Court has jurisdiction
to review a determination under section 6330 if the taxpayer
appeals “within 30 days of [the] determination”.
This Court’s jurisdiction in such cases depends on the
issuance of a valid notice of determination and the filing of a
timely petition for review. Weber v. Commissioner, 122 T.C. 258,
261 (2004).
Section 6330(d) does not specify how the Commissioner is to
give notice of a determination under that section. We have held
the method that the Congress specifically authorized in
subsections (a) and (b) of section 6212 for sending notices of
deficiency should suffice for section 6330(d) notices of
determination. Id. Accordingly, a section 6330(d) notice of
determination is sufficient if it is sent by certified or
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registered mail to the taxpayer at the taxpayer’s last known
address. Id. at 261-262. The effect of the “shall be
sufficient” language in section 6212(b)(1) is to provide a safe
harbor assuring the Commissioner that the notice of deficiency is
valid for these purposes even if the notice is not received by
the taxpayer before the end of the petition period. Mulvania v.
Commissioner, 81 T.C. 65, 67-68 (1983); Zenco Engineering Corp.
v. Commissioner, 75 T.C. 318, 321-322 (1980), affd. without
published opinion 673 F.2d 1332 (7th Cir. 1981).
Because of the Court’s concern about jurisdiction, we
directed the parties to consider whether respondent’s use of an
incorrect ZIP Code in addressing the notice of determination
affected the validity of the notice of determination. See
Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142,
146-147 (1988).
The unrebutted evidence submitted by respondent is that in
the instant case the notice of determination was attempted to be
delivered to the correct address and ZIP Code. The error in the
ZIP Code shown on the notice of determination envelope was
corrected by the U.S. Postal Service and did not affect the
timely attempted delivery of the notice of determination.
Consequently, we find that the notice of determination was
sent to petitioner’s last known address.
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The petition in the instant case was filed on August 22,
2006, more than 30 days after June 20, 2006, the date the notice
of determination was sent. The petition was untimely even taking
into account the possible effect of section 7502, relating to
timely mailing being treated as timely filing. The postmark date
is August 15, 2006, well past the 30-day period for timely
petitions. This statutory 30-day period is jurisdictional and
cannot be extended. McCune v. Commissioner, 115 T.C. 114 (2000).
Accordingly, the petition was not filed timely, and we must
dismiss the petition for lack of jurisdiction.
To reflect the foregoing,
Respondent’s motion to
dismiss will be granted, and
an appropriate order will be
entered dismissing the instant
case for lack of jurisdiction.