McWhinney v. Commissioner

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                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         OCT 2 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SEAN C. McWHINNEY; CONNIE                       No.    16-72590
PEDERSEN,
                                                Tax Ct. No. 19464-15
                Petitioners-Appellants,

 v.                                             MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Sean C. McWhinney and Connie Pedersen (“taxpayers”) appeal from the

Tax Court’s order dismissing for lack of subject matter jurisdiction their petition

for redetermination challenging the notice of deficiency for the tax years 2011 and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2012. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the

Tax Court’s dismissal for lack of subject matter jurisdiction, Gorospe v. Comm’r,

451 F.3d 966, 968 (9th Cir. 2006), and we affirm.

      The Tax Court properly dismissed taxpayers’ petition for lack of subject

matter jurisdiction because taxpayers failed to file their petition within ninety days

from the mailing of the notice of deficiency. See 26 U.S.C. § 6213(a) (petition for

redetermination must be filed “[w]ithin 90 days . . . after the notice of deficiency

. . . is mailed”); Correia v. Comm’r, 58 F.3d 468, 469 (9th Cir. 1995) (“The timely

filing of a petition for redetermination is a jurisdictional requirement.”).

      Contrary to taxpayers’ contention, the notice of deficiency was valid because

it was sent to taxpayers’ last known address. See 26 U.S.C. § 6212(b)(1); Williams

v. Comm’r, 935 F.2d 1066, 1067 (9th Cir. 1991) (“A notice of deficiency is valid if

it is mailed to the taxpayer’s last known address even if it is not received by the

taxpayer.”); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984)

(explaining that the last known address is the one “on [the taxpayer’s] most recent

return, unless the taxpayer communicates to the IRS clear and concise notice of a

change of address”). We reject as without merit taxpayers’ contentions that the

notice of deficiency was not valid because it was not mailed to their power of

                                           2                                    16-72590
attorney, and that the issuance of the deficiency notice deprived taxpayers of their

day in court.

      AFFIRMED.




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