Berger v. Comm'r of Internal Revenue, Docket Nos. 5173-66— 5175-66.
| Decision Date | 19 September 1967 |
| Docket Number | Docket Nos. 5173-66— 5175-66. |
| Citation | 48 T.C. 848 |
| Parties | MILTON BERGER AND RUTH K. BERGER, DECEASED, ET. AL.,1 PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Jules I. Whitman, for the petitioners.
Leo A. Burgoyne, for the respondent.
The petitioners filed tax returns, protests, and powers of attorney with the respondent designating specific addresses as their own. The powers of attorney directed that correspondence addressed to the taxpayer concerning income tax matters for the years in question should be sent to petitioners' attorney. Deficiency notices were sent by registered mail to the petitioners at the addresses given in the returns; protests and powers and copies of the notices were sent by ordinary mail to petitioners' attorney. The notices and copies were received by the proper parties in ample time to file a petition. Petitions were filed more than 90 days after the date of the mailing. Held, the notices of deficiency were validly issued. Held, further, petitions dismissed for lack of jurisdiction.
These consolidated proceedings involve income tax deficiencies and addition to tax as follows:
The sole issue is whether the Commissioner validly issued notices of deficiency to the petitioners in accordance with section 6212 of the Internal Revenue Code of 1954.2
All of the facts are stipulated, and are so found. The stipulations and exhibits thereto are incorporated herein by this reference.
Milton Berger (hereinafter sometimes referred to as Berger) and Ruth K. Berger filed their income tax returns for the taxable years 1960, 1961, and 1962 with the district director of internal revenue, Philadelphia, Pa., and set forth their address to be: Oak Lane Manor Apts., Melrose Park 26, Pa.
Pennsylvania Papyrus Corporation (hereinafter sometimes referred to as Papyrus) is incorporated under the laws of Pennsylvania. Its income tax returns for the taxable years ended April 30, 1961, April 30, 1962, and April 30, 1963, were filed with the district director of internal revenue, Camden, N. J., and set forth the address of the corporation to be: 650 Delaware Avenue, Camden, N. J.
Joseph and Anna Yovanovich filed their income tax returns for the taxable years 1960, 1961, and 1962 with the district director of internal revenue, Philadelphia, Pa., and set forth their address to be: 1415 Orchard Way, Rosemont, Pa.
On April 30, 1965, the district director of internal revenue at Newark, N. J., mailed 30-day letters to each petitioner at their respective addresses as stated above.
On May 19, 1965, photostatic copies of a power of attorney on behalf of each of the petitioners, covering the years here involved, were filed with the district director of internal revenue at Newark, N. J. The petitioners listed their addresses on the powers. These addresses were identical with the ones shown on their tax returns and the 30-day letters. These powers were the only ones filed and still continue in full force and effect.
The form of the power of attorney utilized by petitioners was U.S. Treasury Department— Internal Revenue Service Form 2848 (March 1964).
Each form contained the following printed provision: ‘Copies of correspondence addressed to the taxpayer in proceedings involving the above matter(s) should be sent to:’. In each of the three powers of attorney, the words ‘Copies of’ were stricken, so that the instruction read: ‘correspondence addressed to the taxpayer in proceedings involving the above matter(s) should be sent to:’, and immediately following the colon there was inserted the following: In each of the powers Jules I. Whitman and Richard L. Levy, of the same address, and Milton Berger, 2200 Girard Trust Building, Philadelphia Pa., were designated as attorneys-in-fact. This deletion on these powers of attorney was contrary to the directions on the back of the forms. The instructions concerning the authority delegated stated:
If this form is used, none of the delegations of authority printed on the face of the form may be deleted. If a limited delegation of authority is desired, Form 2848-A may be used.
These powers were transmitted by letter signed by Jules I. Whitman (hereinafter referred to as Whitman).
Subsequently, protests were filed in each of the three cases, which stated the name and address of the petitioner to be:
Milton Berger and Ruth K. Berger, Deceased
Oak Lane Manor Apts.
Melrose Park 26, Pennsylvania
Pennsylvania Papyrus Corporation
650 Delaware Ave.
Camden, New Jersey
Joseph and Anna Yovanovich
1415 Orchard Way
Rosemont, Pa.
The addresses in the protests were prepared by the petitioners and conformed with the instructions in I.R.S. Pub. No. 5. This publication was transmitted to petitioners as an attachment to the 30-day letters. It instructed the individual petitioners to show their residence address, and the corporation, the address of the principal office or place of business.
On September 24, 1965, the district director sent letters (Form L-201) to the petitioners at the same addresses as set forth in the 30-day letters. The purpose of these letters was to arrange conferences between petitioners and the office of the district director. On the same day the district director sent a letter (Form L-146) to Whitman, transmitting with such letter copies of the letters sent to petitioners. The body of the letter to Whitman stated:
As authorized in a power of attorney on file, we are forwarding, for your information, the enclosed copy of a letter of this date addressed to the taxpayers named below.
No written exceptions were made to the fact that these letters were mailed to the petitioners rather than to Whitman.
Subsequently, on several occasions the office of the district director at Newark, N. J., mailed directly to Whitman Form 872 consents to extend the period of limitations in all three cases. Each time Whitman procured their execution and mailed them to the district director at Newark, N. J., requesting in his letter that an executed copy by returned to him.
All the Form 872 consents mailed to Whitman utilized the same addresses with respect to the petitioners as were ultimately employed in the 30-day letters, powers of attorney, protests, and notices of deficiency.
On one occasion the district director at Newark, N. J., mailed Forms 872 in respect to all three cases to Milton Berger at his office. This was done at Whitman's oral request to expedite matters since Whitman anticipated being away from his office.
On June 3, 1966, the Commissioner sent notices of deficiency by certified mail to the various petitioners at the following addresses:
Estate of Ruth Berger, Dec'd.
Milton Berger, Surviving Spouse
Oak Lane Manor Apts.
Melrose Park 26, Pennsylvania
Pennsylvania Papyrus Corporation
650 Delaware Avenue
Camden, New Jersey
Joseph and Anna Yovanovich
1415 Orchard Way
Said notices were received by Papyrus and the Yovanovichs in the ordinary course of the mails, by delivery to the above specified addresses. At the time the notice of deficiency was mailed to Berger, he resided at a new address, Penn Towers Apts., 1801 John F. Kennedy Boulevard, Philadelphia, Pa. Berger had not informed the respondent of this change. Berger received the notice, at his new address, in ample time so that had he elected he could have filed a timely petition.
On the same day, the Commissioner sent by ordinary mail a copy of the notices of deficiency to:
Jules I. Whitman, Esq.
2635 Fidelity-Philadelphia Trust Bldg.
123 South Broad Street
Each copy of the notices of deficiency was received by Whitman in the ordinary course of the mails.
The copies of the notices of deficiency sent to Whitman were transmitted by a letter to him which stated: ‘As authorized in a power of attorney on file, we are forwarding, for your information, the enclosed copy of a letter of this date addressed to the taxpayer or taxpayers named below.’ Each of the notices sent to the petitioners stated: ‘A copy of this letter and statement has been forwarded to your representative, Mr. Jules I. Whitman, 2635 Fidelity-Philadelphia Trust Building, 123 South Broad Street, Philadelphia, Pennsylvania, in accordance with the authority contained in the power of attorney executed by you.’
Each of the petitions giving rise to these proceedings was mailed to the Tax Court of the United States on Friday, September 9,...
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