Broomfield v. Commissioner, Dkt. No. 4849-03L.
| Decision Date | 21 June 2005 |
| Docket Number | Dkt. No. 4849-03L. |
| Citation | 89 T.C.M. 1466 |
| Parties | David Broomfield v. Commissioner. |
| Court | U.S. Tax Court |
This case is before the Court on respondent's motion to dismiss for lack of jurisdiction on the ground that the petition was not filed within the time prescribed by section 6330(d)(1).1 Petitioner filed an objection to respondent's motion. The parties then filed seriatim responses to petitioner's objection. A hearing was held on respondent's motion. Petitioner, who is incarcerated, did not appear but instead submitted a statement under Rule 50(c). Respondent offered the testimony of the settlement officer who handled petitioner's request for a hearing under section 6330. We base our findings on the facts that are not in dispute, petitioner's submissions, and various documents from petitioner's administrative file in the record. We rely on respondent's witness's testimony only to the extent it contains admissions or establishes the foundation for admitting the material in petitioner's administrative file.
Petitioner was incarcerated at Oakhill Correctional Institution in Oregon, Wisconsin, at the time the petition was filed.
On April 30, 2002, a Final Notice — Notice of Intent to Levy and Notice of Your Right to a Hearing, was mailed to petitioner at 3401 West Wanda Avenue, Milwaukee, Wisconsin ("Wanda Avenue address"), regarding unpaid Federal income taxes for 1991. On May 29, 2002, petitioner timely requested a hearing by filing a Form 12153, Request for a Collection Due Process Hearing, in which he listed the Wanda Avenue address as his address.
On September 4, 2002, the settlement officer assigned to petitioner's case mailed an acknowledgment letter and Appeals process flyer to petitioner at the Wanda Avenue address. An assignment letter, requesting that petitioner contact the Appeals Office to schedule a hearing, was sent to petitioner's Wanda Avenue address on September 12, 2002. After no response was received with respect to the foregoing letters, the settlement officer confirmed the Wanda Avenue address as the address of petitioner recorded on respondent's Integrated Data Retrieval System (IDRS), and sent a second assignment letter to the Wanda Avenue address on October 2, 2002, requesting that petitioner contact her by November 5, 2002. Petitioner responded to this letter by telephoning the settlement officer on November 5, 2002; they conducted a hearing over the telephone at that time.
Petitioner advised the settlement officer of his belief that he was due a refund with respect to his 1991 tax year and of his desire to file a corrected return for 1991. (Petitioner claimed to have filed previously for 1991.) Petitioner requested that the settlement officer provide him a return form for completion and filing. Petitioner further requested return forms for 1997 and 2001 so that he could become current in his filing obligations. In the course of this discussion, petitioner advised the settlement officer that he would be going to jail.
On the day after their telephone conversation (November 6, 2002), the settlement officer mailed a letter to petitioner at the Wanda Avenue address which enclosed return forms for 1991 and 1997 through 2001, and set a December 11, 2002, deadline for petitioner to submit completed returns for these years.
On November 14, 2002, petitioner was incarcerated in the Wisconsin State prison system.
Petitioner did not submit the completed returns or any other materials by the December 11 deadline.
On January 30, 2003, respondent mailed a notice of determination, dated January 30, 2003, regarding the proposed levy for 1991 to the Wanda Avenue address using certified mail, return receipt requested. Respondent received a return receipt card indicating that the notice of determination was accepted at the Wanda Avenue address on January 31, 2003. The Wanda Avenue address was also the address given in the most recent Federal income tax return that petitioner filed prior to the mailing of the notice of determination; namely, petitioner's return for 1996 received by respondent on August 21, 1997.
On March 11, 2003, the settlement officer received a letter from petitioner, dated February 28, 2003, and postmarked March 10, 2003, advising that he had been incarcerated since November 14, 2002, had had no mail forwarded to him by prison authorities, and therefore had been unable to complete the 1991 return or any of the other return forms as requested by the settlement officer. Petitioner sought a "further extension of time" to file a return for 1991. Petitioner further requested that all materials be "retransmitted" to him at Oakhill Correctional Institution, 5212 County Hwy. M, P.O. Box 938, Oregon, Wisconsin.
On March 21, 2003, 50 days after respondent mailed the notice of determination, the Court received a document from petitioner that was filed as his petition for lien or levy action. The document was in an envelope postmarked March 15, 2003. Respondent subsequently filed a motion to dismiss for lack of jurisdiction.
Section 6330 establishes the procedures for administrative and judicial review of actions to collect by levy. Section 6330(a) provides that no levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of the right to a hearing before the levy is made.
If a hearing is requested, it is held by the Internal Revenue Service Office of Appeals. Sec. 6330(b). Following the hearing, the Appeals officer will issue a written determination setting forth his findings and decisions. Sec. 301.6330-1(e)(3)(Q&A-E8)(i), Proced. & Admin. Regs. Section 6330(d)(1) provides that a person may, within 30 days of a determination,2 appeal the determination to the Tax Court or, if the Tax Court does not have jurisdiction over the underlying tax liability, to a Federal District Court.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. Naftel v. Commissioner [Dec. 42,414], 85 T.C. 527, 529 (1985). The Court's jurisdiction under section 6330 depends on the issuance of a valid notice of determination and the filing of a timely petition for review. See Sarrell v. Commissioner [Dec. 54,494], 117 T.C. 122, 125 (2001); Offiler v. Commissioner [Dec. 53,912], 114 T.C. 492, 498 (2000). It follows that when a petition is not timely filed, we are obliged to dismiss the case for lack of jurisdiction. See McCune v. Commissioner [Dec. 53,988], 115 T.C. 114, 118 (2000).
In his motion, respondent argues that the petition is untimely and that the Court therefore lacks jurisdiction. Petitioner maintains that his incarceration and subsequent transfers within the Wisconsin prison system prevented him from receiving mail from November 14, 2002, through at least March 2, 2003. Therefore, petitioner argues that he did not receive the notice of determination with sufficient time to file a timely petition with this Court.3
Although, section 6330(d) does not specify the means by which the Commissioner is required to give notice of a determination made under section 6330, we have held that use of the method authorized in section 6212(a) and (b) for notices of deficiency is sufficient. Weber v. Commissioner [Dec. 55,588], 122 T.C. 258, 261-262 (2004). Thus, if a notice of determination is sent by certified or registered mail to the taxpayer at his last known address, it is sufficient and valid for purposes of commencing the 30-day period in which the petition must be filed, regardless of whether the taxpayer actually receives the notice in time to petition the Court. Id. at 262-263.
Respondent sent the notice of determination, dated January 30, 2003, by certified mail to the Wanda Avenue address on January 30, 2003. The petition in this case was received by the Court on March 21, 2003, in an envelope postmarked March 15, 20034 — that is, 50 and 44 days, respectively, after the date the notice of determination was issued and mailed. Accordingly, our jurisdiction depends on whether the Wanda Avenue address was petitioner's last known address at the time the notice was mailed.
The Court of Appeals for the Seventh Circuit, where an appeal in this case would ordinarily lie, has indicated that a taxpayer's last known address is the address which in light of the circumstances the Commissioner reasonably believes is the address at which the taxpayer wishes to be reached at the time the notice of deficiency is sent. Eschweiler v. United States [91-2 USTC ¶ 50,505], 946 F.2d 45, 49-50 (7th Cir. 1991); Goulding v. United States [91-1 USTC ¶ 50,185], 929 F.2d 329, 331 (7th Cir. 1991). The Commissioner may rely on the address found in the return being audited5 or the most recent address in his files, unless there is "`clear and concise notification from the taxpayer directing the Commissioner to use a different address.'" Goulding v. United States, supra (quoting McPartlin v. Commissioner [81-2 USTC ¶ 9569], 653 F.2d 1185, 1189 (7th Cir. 1981)); Eschweiler v. United States, supra; Abeles v. Commissioner [Dec. 45,203], 91 T.C. 1019, 1035 (1988).
The burden falls on the taxpayer to give clear and concise notification to the Commissioner of a change in address. Eschweiler v. United States, supra at 48; Goulding v. United States, supra at 331; Alta Sierra Vista, Inc. v. Commissioner [Dec. 32,649], 62 T.C. 367 (1974). The Commissioner need only exercise reasonable diligence in attempting to discover the taxpayer's last known address. Eschweiler v. United States, supra at 48. Indeed, in the view of the Court of Appeals for the Seventh Circuit, even where the Commissioner has become aware that the address obtained from the taxpayer may not be where he is currently residing, the Commissioner is entitled to use such address absent clear and...
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