Armstrong v. C.I.R.

• Decision Date: 02 February 1994
• Docket Number: No. 92-9014,92-9014
• Citation: 15 F.3d 970
• Parties: -1127, 94-1 USTC P 50,083 William D. ARMSTRONG, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 970

15 F.3d 970

73 A.F.T.R.2d 94-1127, 94-1 USTC P 50,083

William D. ARMSTRONG, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 92-9014.

United States Court of Appeals, Tenth Circuit.

Feb. 2, 1994.

W. Thomas Finley (Jeffrey M. Travis with him on the brief), of Caolo, Meier & Jones, L.L.P., Dallas, Texas, for Petitioner-Appellant.

Regina S. Moriarty, Attorney, (Michael L. Paup, Acting Assistant Attorney General, Ann B. Durney, Attorney, with her on the brief), Tax Division, Department of Justice, Washington, D.C., for Respondent-Appellee.

Before BALDOCK, McWILLIAMS, and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner appeals the order of the United States Tax Court dismissing his petition as untimely. We have jurisdiction pursuant to I.R.C. Sec. 7482, and we affirm.

On March 2, 1990, the Internal Revenue Service ("IRS") sent by certified mail a notice of deficiency to Petitioner for his individual tax liability for the 1985 and 1986 tax years. The notice was addressed to P.O. Box 35343, Tulsa, Oklahoma, the address the IRS determined was Petitioner's "last known address" within the meaning of I.R.C. Sec. 6212(b)(1). On March 22, 1990, after leaving two certified mail notices in this post office box, the post office returned the certified letter to the IRS marked "unclaimed."

The facts leading up to the IRS's mailing of the deficiency notice to Petitioner are essentially undisputed. At all times from December 30, 1988, through the time of the hearing in this matter, Petitioner had been registered as the renter of P.O. Box 35343, Tulsa, Oklahoma. The record reveals that from the years 1985 through 1989, Petitioner used the following addresses on his Federal income tax returns:

                Year                  Address
                1985                  P.O. Box 35343
                1986                  P.O. Box 35343
                1987                  4150 S. 100th E. Avenue Ste. 308
                1988                  P.O. Box 74153
                1989                  P.O. Box 35343
                

In connection with the audit of Petitioner's 1985 and 1986 tax returns, Revenue Agent Terri Marino mailed correspondence to Petitioner at the 4150 S. 100th E. Avenue address. This address was the address of Terry Cumbey, Petitioner's tax preparer for his 1987 tax return. In a telephone call on February 8, 1989, Mr. Cumbey informed Agent Marino that the 4150 S. 100th E. Avenue address was his own business address and that he no longer represented Petitioner. Mr. Cumbey also informed Agent Marino that Petitioner's current mailing address was P.O. Box 35343. Thereafter, the IRS forwarded a Form 872 (Consent to Extend Time to Assess Tax) to Petitioner at the P.O. Box 35343 address. Petitioner received the form, signed it, and returned it to the IRS together with a Form 2848 naming R. Paul Cecil as his attorney representative. Both documents reflected Petitioner's current address as P.O. Box 35343. The Form 872 also stated after the P.O. Box 35343 address: "[f]ormerly of 4150 S. 100th E. Ave." Thereafter, on August 2, 1989, the IRS mailed further correspondence to Petitioner at the P.O. Box 35343 address, which evidence before the Tax Court indicates Petitioner received.

On December 12, 1989, Mr. Cecil called Agent Marino and informed her that he was no longer representing Petitioner. Mr. Cecil also informed Agent Marino that Petitioner could be reached at 417 W. 7th Street, and he provided her a telephone number. After receiving this information from Mr. Cecil, Agent Marino attempted to contact Petitioner, leaving a message on Petitioner's answering machine. Petitioner never returned her call. On December 15, 1989, and January 23, 1990, the IRS mailed additional Forms 872 to Petitioner at the P.O. Box 35343 address. These correspondences were returned marked "unclaimed."

On January 31, 1990, the IRS initiated a separate audit of Petitioner's 1987 tax return. Revenue Agent Linda Burgess handled this audit and made an entry in her file that Petitioner's address appeared to be the same as that listed in the Tulsa business telephone directory, 417 W. 7th Street, Tulsa, Oklahoma. She was later able to confirm this address through contact with an attorney, Mr. Doss, and through Petitioner himself.

IRS employee Janet Shell was responsible for preparing Petitioner's notices of deficiency for the 1985 and 1986 tax years. Pursuant to routine procedure, Ms. Shell generated a computer printout on February 7, 1990, which showed Petitioner's address as P.O. Box 74153, Tulsa, Oklahoma 74153--the address given on Petitioner's most recently filed return. ¹ Suspecting a mistake in the address because the post office box number and the zip code were identical, Ms. Shell checked the zip code directory and discovered that there was no such post office box within the 74153 zip code. Ms. Shell then reviewed all the information in Petitioner's file and concluded that P.O. Box 35343 was the correct address. On March 2, 1990, the IRS mailed the notice of deficiency at issue in this case to the P.O. Box 35343 address, and, after two certified notices were left in the post office box, the deficiency notice was returned on March 22, 1990 marked "unclaimed."

On August 29, 1991, Petitioner filed a petition in the Tax Court seeking redetermination of the tax deficiency assessed against him for the 1985 and 1986 tax years. The Commissioner filed a motion to dismiss the petition as untimely because it was not filed within ninety days of the mailing of the notice of deficiency as required by I.R.C. Sec. 6213(a). Petitioner objected to the Commissioner's motion to dismiss claiming that the IRS's notice of deficiency was insufficient because it was not sent to his last known address, as required by I.R.C. Sec. 6212(b)(1). Petitioner claimed that his last known address on March 2, 1990, was P.O. Box 74153, Tulsa, Oklahoma, 74153, the address on his 1988 tax return. Petitioner further claimed that the IRS knew of two additional addresses to which to direct correspondence to him: (1) the address shown on his 1987 return, and (2) an address the IRS used to send Petitioner a letter involving the audit of his 1987 return. Petitioner claimed that these correspondences proved that the IRS had been given "clear and concise notification" of several different addresses to which, in the exercise of reasonable diligence, the IRS should have sent the notice of deficiency.

After a hearing on the matter, the Tax Court dismissed Petitioner's petition for lack of jurisdiction because the petition was filed more than ninety days after March 2, 1990. The court found that the address to which the IRS mailed Petitioner's notice of deficiency was a correct address when mailed and remained an address of Petitioner's through the time of the hearing before the Tax Court. The court further found that Petitioner was not a credible witness, and concluded that Petitioner had refused to take receipt of the notice of deficiency. The court finally concluded that in light of all the surrounding circumstances, the Commissioner reasonably believed that Petitioner wished correspondence in this case to be mailed to P.O. Box 35343, Tulsa, Oklahoma, making this address Petitioner's last known address within the meaning of I.R.C. Sec. 6212(b)(1).

Petitioner appeals claiming that the Tax Court erred in concluding that the IRS mailed the notice of deficiency to Petitioner's last known address. Petitioner argues that the IRS had clear and concise notice that Petitioner's last known address was 417 W. 7th Street, and the IRS failed to exercise reasonable diligence in mailing the notice of deficiency to Petitioner.

We first must determine our standard of review. The historical facts and legal standard governing the last known address determination are undisputed. The issue centers on the Tax Court's ultimate conclusion that the Commissioner mailed the notice of deficiency to Petitioner's last known address within the meaning of I.R.C. Sec. 6212(b)(1). As such, the issue is a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982) (mixed questions are "questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard"). We review mixed questions under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or the consideration of legal principles. Ershick v. United Missouri Bank, 948 F.2d 660, 666 (10th Cir.1991). We have held that the last known address determination involves primarily a factual inquiry, see Cyclone Drilling, Inc. v. Kelley, 769 F.2d 662, 664 (10th Cir.1985); as a result, clearly erroneous review is appropriate. See Estate of Holl v. Commissioner, 967 F.2d 1437, 1438 (10th Cir.1992) (Tax Court's factual findings subject to clearly erroneous review); see also King v. Commissioner, 857 F.2d 676, 678-79 (9th Cir.1988) (last known address determination subject to clearly erroneous review).

Petitioner's first claim is that the IRS failed to mail the notice of deficiency to his last known address because it had clear and concise notice that Petitioner's last known address was 417 W. 7th Street. We disagree.

The IRS must give notice to the taxpayer before it may assess or collect any tax deficiency. I.R.C. Sec. 6213(a). ² A notice of deficiency is valid, even if it is not received by the taxpayer, if it is mailed to the taxpayer's "last known address." I.R.C. Sec. 6212(b)(1); see also Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir.1992). The term "last known address" has been defined by case law to mean "that address to which the IRS reasonably believes the taxpayer wishes the notice sent." Cyclone Drilling, 769 F.2d at 664 (citation omitted). The IRS is entitled to rely on the address shown on the taxpayer's tax return for the year in question unless the taxpayer...