T.C. Memo. 2011-129
UNITED STATES TAX COURT
NAMHI LEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21200-10. Filed June 9, 2011.
Antar P. Jones, for petitioner.
Michael DeMatos and Rose R. Gole, for respondent.
MEMORANDUM OPINION
JACOBS, Judge: This matter is before the Court on
respondent’s motion to dismiss for lack of jurisdiction.
Respondent’s motion is premised on the ground that petitioner did
not file her petition within the time prescribed in section
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6213(a).1 Petitioner filed an objection to respondent’s motion
alleging that respondent’s notice of deficiency on which this
case is based is invalid because it was not properly addressed to
her.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in New
York when her petition was filed.
Respondent determined a deficiency in income tax of $27,604,
an addition to tax pursuant to section 6651(a)(1) of $6,720, and
a section 6662(a) penalty of $5,521 with respect to the year
2004. On May 20, 2010, respondent mailed, via certified mail,
three duplicate notices of deficiency for 2004 to petitioner.
One duplicate (Notice 1) bore the address 48-50 West 56th Street,
Suite 2A, New York, NY 10036 (the 56th Street location). The ZIP
Code was incorrect. The correct ZIP Code for the 56th Street
location is 10019. The certified mail tracking number for this
notice is 7005-0390-0000-8134-9610. The parties stipulated that
the 56th Street location was petitioner’s last known address.2
1
All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
2
Petitioner is a family primary care doctor. Since 2007 she
has leased the entire second floor of the 56th Street location
(continued...)
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Another duplicate (Notice 2) was mailed to 37 West 46th
Street, 2nd Floor, New York, NY 10036 (the 46th Street location).
And a third duplicate (Notice 3) was mailed to an address in New
Jersey where petitioner had once lived. Petitioner never
received Notice 1 or Notice 3. She eventually received Notice 2.
According to the U.S. Post Office tracking database, the
post office corrected the Notice 1 ZIP Code error and there were
several attempts to deliver Notice 1 to petitioner.3 The
tracking database further shows that Notice 1 was declared
unclaimed on June 11, 2010, and was returned to the Internal
Revenue Service.
Petitioner regularly checked her mailbox at the 56th Street
location. “On and off” she had a receptionist at her office who
would sign for packages and certified mail. Petitioner maintains
that she never received notification of an attempted delivery of
Notice 1.
As stated supra, petitioner received Notice 2. Notice 2 was
mailed to the 46th Street location on the same day respondent
2
(...continued)
for her medical practice. During 2010 she also used the 56th
Street location as her residence.
3
A post office customer service supervisor testified that
standard post office procedures provide that when there is an
initial failure to deliver a certified mail item, two additional
deliveries are to be attempted.
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mailed Notice 1. That notice was signed for upon delivery, but
the signature on the domestic return receipt is illegible.
Petitioner previously had an office suite on the second
floor of the 46th Street location. In May 2010 that office was
occupied by an unrelated party and petitioner’s mother lived on
the fourth floor and ran a business from the third floor.
Petitioner’s mail was often delivered to her mother.
Petitioner’s mother would bundle the mail and, at irregular
intervals, forward it to petitioner. In an affidavit of
petitioner’s mother attached to petitioner’s objection to
respondent’s motion to dismiss, petitioner’s mother asserts that
she received Notice 2 from the unrelated party who was a tenant
of the second floor of the 46th Street location. Petitioner’s
mother is elderly, is not fluent in English, does not sort her
own mail, and frequently is away from her residence at the 46th
Street location, working in upstate New York.
Petitioner received Notice 2 from her mother at the “end of
August, sometime in late August.” Petitioner attached Notice 2
to her petition, which was untimely filed on September 17, 2010.
The last date to file a timely petition was August 18, 2010.
Respondent concedes that the New Jersey address to which
Notice 3 was mailed was not petitioner’s last known address when
that notice was mailed.
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Petitioner maintains that respondent’s notice of deficiency
was not “properly served” and “consequently * * * [she] did not
receive the notice via any mailing.” Petitioner asserts that
respondent’s assumption that petitioner’s mother sees petitioner
frequently and therefore was able to deliver Notice 2 to
petitioner timely is erroneous.
Discussion
Section 6212(a) provides that if the Secretary determines
that there is a deficiency in income tax “he is authorized to
send notice of such deficiency to the taxpayer by certified mail
or registered mail.” The notice of deficiency is “sufficient” if
mailed to the taxpayer at his last known address, unless the
Secretary has been properly notified under section 6903 of the
existence of a fiduciary relationship. Sec. 6212(b)(1); Frieling
v. Commissioner, 81 T.C. 42, 52 (1983); Pickering v.
Commissioner, T.C. Memo. 1998-142. If the notice of deficiency
is mailed to the taxpayer at the taxpayer’s last known address,
actual receipt of the notice is immaterial. King v.
Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C.
1042 (1987); Frieling v. Commissioner, supra at 52; see Tadros v.
Commissioner, 763 F.2d 89, 91-92 (2d Cir. 1985). If the notice
is addressed to a person in the United States, the taxpayer has
90 days after the mailing of the notice to file a petition in
this Court to redetermine the deficiency. Sec. 6213(a).
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This Court’s jurisdiction to redetermine tax deficiencies
exists only when the Commissioner issues a notice of deficiency
and the taxpayer files a timely petition to redetermine that
deficiency. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22,
27 (1989); Hunter v. Commissioner, T.C. Memo. 2004-81. In the
case at bar, the petition was not filed within the 90-day period
prescribed by section 6213(a); thus, we lack jurisdiction to
decide the substance of this case.
Petitioner asserts that the notice of deficiency is invalid
because respondent used an incorrect ZIP Code in mailing Notice 1
to her. If we conclude that the notice of deficiency is invalid,
we must dismiss this case on that basis and not for lack of a
timely filed petition. Keeton v. Commissioner, 74 T.C. 377, 379-
380 (1980); Pickering v. Commissioner, supra.
This Court has long held that an inconsequential error in
the address used in mailing a notice of deficiency does not
render the notice invalid. See Frieling v. Commissioner, supra;
Sebastian v. Commissioner, T.C. Memo. 2007-138; Pickering v.
Commissioner, supra. An error in the address used in mailing a
notice of deficiency is inconsequential where the error is so
minor that it would not prevent delivery of the notice. See
McMullen v. Commissioner, T.C. Memo. 1989-455; Kohilakis v.
Commissioner, T.C. Memo. 1989-366.
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This is not the first time we have had to decide the
validity of a notice of deficiency addressed with an incorrect
ZIP Code. In Pickering v. Commissioner, supra, the notice of
deficiency was addressed to the taxpayer using his correct name,
post office box number, city, and State, but with a wrong ZIP
Code. In that case, the Commissioner introduced into the record
a statement from the acting Postmaster in the taxpayer’s city
that the incorrect ZIP Code would not have affected the proper
delivery of the notice of deficiency. The taxpayer offered no
evidence that the notice of deficiency was not delivered, and we
found it significant that the envelope bearing the notice of
deficiency was returned to the Commissioner marked “unclaimed”,
as opposed to “address unknown” or “no such street or number”.
Similarly, in Boothe v. Commissioner, T.C. Memo. 1986-361, we
stated:
Although petitioners’ names, street number and name, city
and state were all correct, the zip code was for
petitioners’ former California address. Petitioners did not
establish that the U.S. Postal Service failed to comply with
postal regulations or that a zip code is an element
essential to delivery of the notice in question. Failure of
petitioners to actually receive the notice does not vitiate
it.
Respondent addressed Notice 1 with petitioner’s correct
name, street number and name, floor number, city, and State.
Moreover, the record demonstrates that the post office discovered
the mistaken ZIP Code and corrected it. The post office tracking
database shows that Notice 1 was delivered to the proper ZIP Code
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and that it was eventually declared unclaimed. Petitioner did
not present any evidence that the post office failed to comply
with postal regulations. And it is well recognized that “Once
the notice of deficiency is mailed to the taxpayer’s last known
address, nothing in the Code requires respondent to take
additional steps to effectuate delivery.” Howard v.
Commissioner, T.C. Memo. 1993-315 (citing Pomeroy v. United
States, 864 F.2d 1191, 1195 (5th Cir. 1989)); see Sebastian v.
Commissioner, supra. Considering the totality of the evidence,
we are satisfied that the use of an incorrect ZIP Code in the
mailing of Notice 1 to petitioner constitutes an inconsequential
error that did not adversely affect the proper delivery of Notice
1 to petitioner.
This is not a case where the Commissioner failed to exercise
reasonable diligence in ascertaining the taxpayer’s last known
address following the return of the notice of deficiency. See
Ward v. Commissioner, 907 F.2d 517 (5th Cir. 1990), revg. 92 T.C.
949 (1989); Mulder v. Commissioner, 855 F.2d 208 (5th Cir. 1988),
revg. T.C. Memo. 1987-363; Wallin v. Commissioner, 744 F.2d 674
(9th Cir. 1984), revg. T.C. Memo. 1983-52; Crum v. Commissioner,
635 F.2d 895 (D.C. Cir. 1980). Here, the notice of deficiency
was properly addressed to petitioner’s last known address, but
for the improper ZIP Code, and the notice of deficiency was
returned to the Internal Revenue Service stamped “unclaimed”, not
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“address unknown” or with notification that the taxpayer had
moved. See Tadros v. Commissioner, 763 F.2d 89 (2d Cir. 1985).
In sum, we find that Notice 1 is a valid notice of
deficiency. Hence, we need not address the validity of Notice 2.
To reflect the foregoing,
An order of dismissal
will be entered granting
respondent’s motion to dismiss
for lack of jurisdiction.