dissenting: I respectfully dissent. In my view, the majority establishes an unfortunate rule of law whereby the taxpayer is penalized for respondent’s, in this case, flagrant, mistake. Even though respondent had "clear and concise notification’’ of petitioner’s last known address, the majority validates the notice of deficiency because of the happenstance that petitioner in fact received the notice. The majority justifies its holding by concluding that the reference in section 6212(b) to "last known address” is merely permissive. I, to the contrary, find the language of the statute mandatory and that the failure to comply with the statute causes the notice to be null and void ab initio.
Section 6212(a) authorizes the respondent to send his'notice by mail and by specified forms of mailing. Personal service is rendered unnecessary. Subsection (b), logically enough, treats the matter of the address to be used and provides that a "notice of deficiency * * * mailed to the taxpayer at his last known address, shall be sufficient.” Without the rule set forth in subsection (b), the taxpayer could claim that he never received the notice and. therefore is entitled to whatever benefits might flow from that failure. Subsection (b) eliminates this problem by making it the taxpayer’s responsibility to keep the respondent informed of his proper address. Actual receipt is of no moment. There is nothing in the quoted statutory language that requires a conclusion that it is intended to be permissive in meaning.
I find support for a "mandatory interpretation” in section 6213(a) which sets forth the time limits within which a taxpayer may file a petition in this Court. "Within 90 days * * * after the notice of deficiency authorized in section 6212 is mailed * * * , the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” It is apparent that Congress believes that 90 days after mailing, less a period of time for a properly addressed notice to be received, is the appropriate period of time for a taxpayer to have to make his judgment on how to react to the notice. The inescapable effect of the majority’s opinion is to foreshorten this congressionally mandated time period, and that is not our prerogative.
While, as the majority makes clear, there are decisions which lend support to a contrary view, the approach advocated in this dissent finds judicial support in the following cases: DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967); Keeton v. Commissioner, 74 T.C. 377, 381 (1980); Stewart v. Commissioner, 55 T.C. 238, 241 (1970); Estate of McKaig v. Commissioner, 51 T.C. 331, 336 (1968); Heaberlin v. Commissioner, 34 T.C. 58, 59 (1960).
A rule that an improperly addressed statutory notice has in effect not been "mailed to the taxpayer” is simple, straightforward, and easy to administer. It leaves as the only evidentiary problem whether respondent was advised that the address used was the taxpayer’s "last known address.” The rule cuts both ways. For example, it benefits the taxpayer if the statute of limitations has run before a valid notice can be mailed; and it benefits the respondent because the first mailing does not qualify as the sending of the notice and, therefore, he can send another one if the statute has not run.
I am fearful that the result of the majority’s opinion will be increased uncertainty. According to the majority, the question of whether a valid statutory notice was sent in the case of an improper mailing will depend upon whether the taxpayer has a reasonable time for filing a petition upon actual receipt of the notice. Determining the amount of time that is reasonably necessary for filing a petition is a complex, nigh impossible, task. All cases are not the same. The time necessary for filing an adequate petition will change with the varying complexity of the case, the number of issues, and with the underlying circumstances of the taxpayer. Compare, for example, the petition required in Foster v. Commissioner, 80 T.C. 34 (1983), with that required in Miraglia v. Commissioner, T.C. Memo. 1983-336.
Before a petition is filed, the taxpayer or his adviser must make a tactical decision with respect to whether he wishes to try the case in the Tax Court. Moreover, assuming the taxpayer otherwise wishes to try the case before a District Court, where there is a large deficiency, the taxpayer must review his financial status to determine whether the deficiency can be paid. Will this Court have to resolve such factual disputes? We really do not need any more litigation.
Interestingly enough, we may even be creating more litigation for our fellow judges on the District Courts. If the taxpayer concludes that he does not have a reasonable time to file, he will be forced into a District Court, where, assuming that court follows our approach, it may have to determine whether the taxpayer had a reasonable time to file a hypothetical petition with the Tax Court in order to determine whether it, the District Court, has jurisdiction.
The majority rests its "permissive” conclusion on the presence of the word "sufficient” in subsection 6212(b) in providing for the use of the "last known address.” This contention seems to be premised on the thought that the subsection implicitly authorizes the mailing of a statutory notice to the wrong address. I would not attribute such a notion to Congress. It seems clear to me that that word is intended to accord the respondent the protection previously alluded to. Holding that subsection 6212(b) requires that the notice of deficiency be sent to the last known address is, I submit, more consistent with the statutory scheme for invoking the jurisdiction of this Court.
The opinion of the majority is a trap for those unwary enough, in some circumstances, to leave a forwarding address and who allow themselves to "receive” the statutory notice. There is no duty requiring the taxpayer to accept receipt of a notice of deficiency and since, as far as I know, there is no rule of constructive receipt in this area, the unsophisticated will be the primary victims of this rule of law.
Goffe, J., agrees with this dissent.