146 T.C. No. 4
UNITED STATES TAX COURT
ISAIAH BONGAM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20104-14L. Filed February 11, 2016.
In an effort to collect P’s unpaid liabilities, R issued P a Notice
of Federal Tax Lien Filing and Your Right to a Hearing (NFTL No-
tice). The NFTL Notice was sent by certified mail to P at an address
in Bowie, Maryland (Maryland address). At all relevant times, the
Maryland address was P’s last known address. P timely requested a
collection due process (CDP) hearing, showing as his address an
address in Washington, D.C. (Washington address).
The CDP hearing was held, and R determined that P was not
entitled to relief. R then sent P by certified mail a Notice of Determi-
nation (Notice) denying relief. The Notice was mailed to P at the
Washington address and was returned to R as undeliverable. Without
changing the date listed on the Notice, R’s office remailed it to P by
regular mail to the Maryland address. P received the Notice and peti-
tioned this Court within 30 days of the date on which he actually re-
ceived the Notice and also of the date on which the Notice was re-
mailed to him.
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“[T]his Court’s jurisdiction under [I.R.C.] sections 6320 and
6330 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). R contends that we lack jurisdiction
because the Notice originally sent to P was not mailed to his “last
known address” and was therefore invalid.
1. Held: The Notice as originally mailed to P at his Washing-
ton address, which was returned to R as undeliverable, was invalid
and did not start the 30-day period for petitioning this Court.
2. Held, further, the Notice as subsequently remailed to P at his
Maryland address was valid because it was actually received by P
without prejudicial delay, that is, in time to file a timely petition in
this Court.
3. Held, further, even though the date listed on the Notice was
earlier than the date of mailing, the critical date for the running of the
30-day period is not the date listed on the Notice, but the subsequent
date on which the notice was mailed to or actually received by P.
Isaiah Bongam, pro se.
John D. Ellis, for respondent.
OPINION
LAUBER, Judge: On September 16, 2015, the Internal Revenue Service
(IRS or respondent) moved to dismiss this case for lack of jurisdiction. The case
was called and recalled from the calendar at the Court’s trial session in Washing-
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ton, D.C., on November 2, 2015. Both parties appeared, and an evidentiary hear-
ing was held. In light of the evidence introduced at that hearing, we will deny the
motion to dismiss.
Background
This collection due process (CDP) case involves petitioner’s liability for
civil penalties under section 6672 for various calendar quarters from 2005 through
2009.1 The IRS assessed this liability, totaling $772,282, on April 9, 2009. In an
effort to collect this unpaid liability, the IRS issued petitioner, on October 1, 2013,
a Notice of Federal Tax Lien Filing and Your Right to a Hearing (NFTL Notice).
The NFTL Notice was sent by certified mail to petitioner at an address in Bowie,
Maryland (Maryland address). At all relevant times, the Maryland address was
petitioner’s last known address as shown in IRS records. Respondent concedes
that the Maryland address was petitioner’s last known address, and petitioner in
fact received the NFTL Notice at that address.
On October 9, 2013, petitioner timely filed Form 12153, Request for a
Collection Due Process or Equivalent Hearing. The Form 12153 showed as
petitioner’s address an address in Washington, D.C. (Washington address).
1
All statutory references are to the Internal Revenue Code (Code) in effect at
all relevant times. We round all monetary amounts to the nearest dollar.
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Petitioner testified that this house belonged to his daughter and that he and other
relatives also resided there. At no time did petitioner file a change-of-address
form with the IRS or indicate to the IRS that he wished to have his last known
address changed to the Washington address. See Rev. Proc. 2010-16, 2010-19
I.R.B. 664 (listing requirements for taxpayer to change his last known address).
Petitioner testified that he generally used the Maryland address for his tax filings.
The CDP hearing was held, and the settlement officer determined that
petitioner was not entitled to relief. On April 30, 2014, the IRS sent petitioner, by
certified mail, a Notice of Determination Concerning Collection Action(s) (Notice
of Determination or Notice) denying relief. That letter was mailed to petitioner at
the Washington address. On May 3, 2014, the U.S. Postal Service attempted to
deliver the letter to petitioner’s Washington address but was unable to do so. On
June 6, 2014, the letter was returned as undeliverable to the IRS office in Mem-
phis, Tennessee (IRS Memphis office).
On August 4, 2014, someone from the IRS Memphis office remailed the
April 30, 2014, Notice of Determination, including the envelope in which it had
originally been posted, to petitioner at his Maryland address. This document was
sent to petitioner by regular mail, not by certified or registered mail. Petitioner
received the Notice of Determination a few days later and, on August 22, 2014,
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mailed to the Tax Court a petition seeking review of the Notice. This petition was
filed within 30 days of the date on which petitioner actually received the Notice
and of August 4, 2014, the date on which the Notice was remailed to him.
Discussion
This Court always has jurisdiction to determine whether it has jurisdiction.
Cooper v. Commissioner, 135 T.C. 70, 73 (2010). The Tax Court is a court of
limited jurisdiction, and we must ascertain whether the case before us is one that
Congress has authorized us to consider. See sec. 7442; Estate of Young v. Com-
missioner, 81 T.C. 879, 881 (1983). In determining whether we have jurisdiction
over a given matter, this Court and the Courts of Appeals have given our juris-
dictional provisions a broad, practical construction rather than a narrow, technical
one. Lewy v. Commissioner, 68 T.C. 779, 781 (1977). When a statutory provi-
sion is capable of two interpretations, “we are inclined to adopt a construction
which will permit us to retain jurisdiction without doing violence to the statutory
language.” Traxler v. Commissioner, 61 T.C. 97, 100 (1973).
Sections 6320 (pertaining to Federal tax liens) and 6330 (pertaining to lev-
ies) establish procedures for administrative and judicial review of certain collec-
tion actions. The Commissioner must provide the taxpayer with written notice of
lien filing or the proposed levy action and inform the taxpayer of his right to
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challenge it at an administrative hearing. See Davis v. Commissioner, 115 T.C.
35, 37 (2000). The Code requires that such written notice be given in one of three
specified ways. It must be “given in person,” be “left at the [taxpayer’s] dwelling
or usual place of business,” or be “sent by certified or registered mail * * * [to the
taxpayer’s] last known address.” Secs. 6320(a)(2)(A)-(C), 6330(a)(2)(A)-(C).
After receiving the written notice specified above, the taxpayer may request
a CDP hearing under section 6320(b) or 6330(b). If dissatisfied with the outcome
of that hearing the taxpayer “may, within 30 days of a determination under this
section, appeal such determination to the Tax Court (and the Tax Court shall have
jurisdiction with respect to such matter).” See sec. 6330(d)(1) (cross-referenced in
section 6320(c)). We have repeatedly held “that this Court’s jurisdiction under
sections 6320 and 6330 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); see Sarrell v. Commissioner, 117 T.C. 122, 125 (2001).
In this case, petitioner actually received the Notice of Determination as re-
mailed to him on August 4, 2014, and within 30 days he filed a timely petition for
review. Respondent nevertheless contends that we lack jurisdiction because the
Notice originally sent to petitioner on April 30, 2014, was not mailed to his “last
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known address.” Respondent argues that the Notice was therefore invalid and
cannot serve as a basis for jurisdiction in this Court.
Section 6330(d) does not specify the means by which the IRS shall notify
the taxpayer of a “determination” made after a CDP hearing. Indeed, section
6330(d) does not explicitly require that the taxpayer be notified at all; it simply
states that there must be a “determination” and permits the taxpayer to appeal to
this Court within 30 days after the “determination” has been made. See Lunsford
v. Commissioner, 117 T.C. 159, 161 (2001) (interpreting the statute to require a
“determination” to be in the form of a written notice). In Weber, 122 T.C. at 261,
we reasoned that “the method that Congress specifically authorized for sending
notices of deficiency * * * certainly should suffice” in the CDP context. We ac-
cordingly held in Weber that “a notice of determination issued pursuant to sections
6320 and/or 6330 is sufficient if such notice is sent by certified or registered mail
to a taxpayer at the taxpayer’s last known address.” Id. at 261-262; see Sebastian
v. Commissioner, T.C. Memo. 2007-138, 93 T.C.M. (CCH) 1302, 1304. We had
no occasion in Weber to decide whether notice to the taxpayer would be effective
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if delivered in some other way. We address that question now, again by analogy
to our deficiency jurisdiction.2
Section 6212(b)(1) provides that a notice of deficiency “shall be suffici-
ent” if it is “mailed to the taxpayer at his last known address.” The language of
this section is clearly permissive: “Congress did not create a mandatory address to
which a notice of deficiency must be mailed, but rather provided the Commission-
er a ‘safe harbor’ address to which he could send the notice.” McKay v. Commis-
sioner, 89 T.C. 1063, 1068 (1987), aff’d, 886 F.2d 1237 (9th Cir. 1989). By using
this safe harbor, the IRS can ensure that a notice of deficiency will be valid regard-
less of whether the taxpayer actually receives it. The “last known address” rule
thus comes into play when the taxpayer does not receive the notice of deficiency
or receives it with insufficient time to file a timely petition for redetermination.
However, a notice of deficiency need not be sent to the taxpayer’s last
known address in order to be valid. Rather, the notice will be valid if it is actually
received by the taxpayer “without prejudicial delay,” that is, generally in time to
2
The Treasury Regulations appear to specify notice by certified or registered
mail as the preferred form of notice. See sec. 301.6330-1(e)(3), Q&A-E8, Proced.
& Admin. Regs. (“Taxpayers will be sent a dated Notice of Determination by cer-
tified or registered mail.”). Respondent does not argue that these regulations limit
our jurisdiction. See Harris v. Commissioner, 32 T.C. 1216, 1217 (1959) (“[O]ne
litigant cannot write into the law limitations on the jurisdiction of the Court as to
the other party by his own regulations.”).
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file a timely petition in this Court. McKay, 89 T.C. at 1068; Mulvania v. Commis-
sioner, 81 T.C. 65, 68 (1983); Looper v. Commissioner, 73 T.C. 690 (1980).
Actual notice from the IRS to a taxpayer, whether transmitted by certified mail,
ordinary mail, or hand delivery, will suffice. See Tenzer v. Commissioner, 285
F.2d 956 (9th Cir. 1960) (personal delivery of notice of deficiency); Boren v. Rid-
dell, 241 F.2d 670 (9th Cir. 1957) (mailing of notice of deficiency by ordinary
mail).
Section 6330(d) does not require that the Commissioner send a notice of de-
termination by certified mail to the taxpayer’s last known address or that he deli-
ver it in any particular way. In this respect, section 6330(d)(1) stands in sharp
contrast to sections 6320(a) and 6330(a), which specify three permissible modes of
notifying the taxpayer of liens and levies, and other Code provisions that mandate
mailing to the taxpayer’s “last known address. ” See secs. 6015(e)(1)(A)(i)(I),
6110(f)(3)(B), 6331(d)(2), 7603(b)(1). If Congress had intended that a similar re-
striction would govern our review of CDP cases, Congress could easily have so
specified. Instead, section 6330(d)(1) provides that this Court shall have jurisdic-
tion if a taxpayer files a petition “within 30 days of a determination.” This lan-
guage does not limit the manner in which the IRS may notify the taxpayer that a
determination has been made.
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We agree with respondent that the Notice of Determination, as originally
mailed to petitioner on April 30, 2014, was invalid. That document was not sent
to petitioner’s “last known address” and it was not actually received by him; ra-
ther, it was returned to the IRS Memphis office as undeliverable. See Looper, 73
T.C. at 699 (holding notice of transferee liability invalid when it was not mailed to
taxpayer’s last known address and taxpayer was unable to file a timely petition
despite the exercise of due diligence). The April 30, 2014, mailing therefore did
not start the clock for petitioning this Court.
However, the IRS Memphis Office remailed the Notice of Determination to
petitioner on August 4, 2014, and he actually received that Notice in time to file a
timely petition. We find that the Notice of Determination, as remailed on August
4, 2014, was properly mailed and valid and that petitioner’s 30-day period for
petitioning this Court did not start to run before that date. Cf. Terrell v. Commis-
sioner, 625 F.3d 254 (5th Cir. 2010) (holding that 90-day window for seeking
review of IRS innocent spouse determination did not begin to run when notice was
sent to incorrect address but began to run when notice was remailed to taxpayer’s
correct address); Kasper v. Commissioner, 137 T.C. 37, 42 (2011) (“Requiring the
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Whistleblower Office to provide the whistleblower with notice of the determi-
nation is the logical first step to establish the starting date for the period of
appeal.”).
Our conclusion is unaffected by the fact that the date appearing on the No-
tice of Determination does not match the date on which the Notice was success-
fully mailed to petitioner. As we have held in analogous situations, when the date
appearing on a deficiency notice is earlier than the date of mailing, “[t]he critical
date is the date the deficiency notice was ‘mailed.’” August v. Commissioner, 54
T.C. 1535, 1536 (1970).3 After the Notice of Determination was returned as unde-
liverable, the IRS Memphis Office could have crossed out the original date on the
letter and replaced it with the current date, or it could have retyped the Notice
using the remailing date. The IRS’ failure to do one of these things does not
3
Compare Lundy v. Commissioner, T.C. Memo. 1997-14, 73 T.C.M. (CCH)
1693, 1695 (the date of mailing is generally “the date that the Commissioner actu-
ally places the notice of deficiency in the mail”), with Loyd v. Commissioner, T.C.
Memo. 1984-172, 47 T.C.M. (CCH) 1450, 1453-1454 (date of mailing deemed to
be the date appearing on the notice of deficiency when it postdates the date of
actual mailing). Cf. sec. 301.6330-1(e)(3), Q&A-E10, Proced. & Admin. Regs.
(“The 30-day period within which the taxpayer is permitted to seek judicial review
of Appeals’ determination commences the day after the date of the Notice of
Determination.”).
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deprive us of jurisdiction, so long as the Notice of Determination was actually
received by petitioner in time to seek our review.4
We see no reason why the above-described rules governing our deficiency
jurisdiction should not also govern our jurisdiction in CDP cases, thus allowing
taxpayers the greatest opportunity, consistently with the statutory language, to
obtain jurisdiction in our Court. We accordingly hold that the 30-day window
prescribed by section 6330(d)(1) is calculated by reference to the Notice of Deter-
mination that was successfully sent to petitioner’s Maryland address by regular
mail on August 4, 2014. Because petitioner actually received that Notice and filed
his petition within 30 days, we have jurisdiction to hear this case. See, e.g., Pugs-
ley v. Commissioner, 749 F.2d 691 (11th Cir. 1985) (even though notice of defi-
ciency was not sent to last known address, taxpayer was not prejudiced because he
received actual notice of deficiency in ample time to petition this Court); Clod-
felter v. Commissioner, 527 F.2d 754, 757 (9th Cir. 1975) (notice of deficiency
4
Because petitioner filed his petition within 30 days of the remailing date
and also of the date on which he actually received the Notice of Determination, we
need not decide which date triggered the start of the 30-day filing period. Com-
pare Powell v. Commissioner, 958 F.2d 53, 57 (4th Cir. 1992) (“When notice of a
deficiency is not sent to a taxpayer’s last known address, subsequent actual notice
of the deficiency will commence the running of the ninety-day period.”), and
Crum v. Commissioner, 635 F.2d 895 (D.C. Cir. 1980) (time begins to run on date
of receipt), with Pugsley v. Commissioner, 749 F.2d 691, 692-693 (11th Cir.
1985) (time begins to run on date of mailing if ample time to file a petition).
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not sent to last known address is valid “if mailing results in actual notice without
prejudicial delay”), aff’g 57 T.C. 102 (1971); Frieling v. Commissioner, 81 T.C.
42, 57 (1983) (“[S]o long as the notice of deficiency is timely mailed by the Com-
missioner and is received without prejudicial delay by the taxpayer * * *, the no-
tice is effective for all purposes from the time of its mailing.”).5
To reflect the foregoing,
An order will be issued denying
respondent’s motion to dismiss for lack of
jurisdiction.
5
The IRS notice of determination form typically informs the taxpayer: “If
you want to dispute this determination in court, you must file a petition with the
United States Tax Court within 30 days from the date of this letter.” We have no
occasion in this case to decide whether a notice of determination, mailed under
circumstances resembling those here, would be valid if the taxpayer, confused by
the erroneous date on the IRS letter, did not file a petition in this Court.