Brown v. Comm'r of Internal Revenue

• Citation: 78 T.C. 215
• Decision Date: 08 February 1982
• Docket Number: Docket No. 12481-81.
• Parties: HENRY M. BROWN and BARBARA J. BROWN, PETITIONERS v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: United States Tax Court

78 T.C. 215

HENRY M. BROWN and BARBARA J. BROWN, PETITIONERS

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 12481-81.

United States Tax Court

Filed February 8, 1982.

During the course of an examination, petitioners requested respondent to direct all future correspondence to them to an APO address in New York. Respondent subsequently sent petitioners a notice of deficiency addressed to them at the APO address. Petitioners filed a petition 145 days after the notice was sent. Respondent filed a motion to dismiss for lack of jurisdiction more than 45 days after the petition was served. Held, this Court's jurisdiction can be questioned by either party, or by the Court sua sponte, at any time. Held, further, the notice was addressed to petitioners at their “last known address.” Sec. 6212(b)(1), I.R.C. 1954. Held, further, the notice was addressed to petitioners at an address outside the United States; consequently, they were entitled to 150 days within which to file their petition with this Court. Sec. 6213(a), I.R.C. 1954. James E. Bell, for the petitioners.

Henry B. Miller and Robyn R. Jones, for the respondent.

OPINION

DAWSON , Judge:

This case is presently before the Court on respondent's motion to dismiss for lack of jurisdiction. The primary issue for decision is whether a notice of deficiency addressed to petitioners at an APO address in New York was addressed to them at an address outside the United States for purposes of section 6213(a).¹ The resolution of this issue will determine whether petitioners were entitled to 150 days or only 90 within which to file their petition with this Court. Secondary issues for decision are whether the notice of deficiency was mailed to petitioners at their “last known address” in conformity with section 6212(b)(1) and whether respondent timely filed his motion to dismiss under Rule 36(a).²

Facts

Petitioners Henry M. Brown and Barbara J. Brown are husband and wife. They filed a joint Federal income tax return for the calendar year 1978 with the Internal Revenue Service Center at Philadelphia, Pa.

On January 14, 1981, respondent sent petitioners a statutory notice determining a deficiency in their income tax for 1978 in the amount of $11,473.01.³ The notice was issued by the director of respondent's Office of International Operations in Washington, D.C., and was addressed as follows:

Mr. Henry M. Brown and

Mrs. Barbara J. Brown

MKSAC/KKMAC Box 3354

APO New York, New York 09615

By letter dated February 15, 1980, petitioner Henry M. Brown had advised the Office of International Operations as follows:

Gentlemen:

Pursuant to your request for additional information dated January 10, 1980, this request was mailed to our permanent address in Oklahoma City, Oklahoma. However, we are still in Saudia Arabia and did not receive this request until February 1st.

Some of the information which you have requested is not presently available which will necessitate our sending the forms to our CPA who has all our tax records. It is quite possible that the requested information will not reach you within the six-week time frame. We will make every effort to expedite this.

very truly yours,

/S/Henry M. Brown

HENRY M. BROWN

hmb/ All future correspondence should be directed to our Saudi Address

Henry M. Brown

MKSAC/KKMC BOX 3354

APO New York, 09615

The letters “MKSAC/KKMC”⁴ represent “Morrison-Knudsen Saudi Arabian Consortium, King Khalid Military City.” King Khalid Military City is located in the Eastern Province (al-Muntaqa al-Sharqiyah) of Saudi Arabia. The APO number “09615” designates the U.S. military post office located at al-Batin, Saudi Arabia.

On or before February 23, 1981, petitioners received the notice of deficiency. They did not immediately file a petition with this Court but rather contacted the District Director of Internal Revenue in Oklahoma City, Okla. Their letter provided in part as follows:

There appears to have been sufficient lack of communication in the audit by correspondence of the taxpayers' 1978 tax return, conducted while they were employed in Saudia Arabia, to result in adjustments to taxable income that are unwarranted. The proposed adjustments have resulted in a deficiency adjustment being made and the issuance of a 90 day letter (150 days) in our case which has finally reached us.

Their letter went on to request that their file be transferred to the Oklahoma City District (“our local district”) for further consideration and in order to permit them to exercise their administrative appeal rights. It also disclosed an Oklahoma City address and telephone number.

On June 8, 1981, 145 days after the notice of deficiency was sent, petitioners filed their petition with this Court.⁵ On the following day, it was served on respondent. Fifty-seven days thereafter, on August 5, 1981, respondent filed his motion to dismiss for lack of jurisdiction.

Issue 1. Timeliness of Motion To Dismiss

Petitioners raise a preliminary issue concerning the timeliness of respondent's motion to dismiss. Citing Rule 36(a),⁶ they contend that his motion should be denied because he failed to file it within 45 days from the date of service of the petition. We disagree.

It is well settled that this Court can proceed in a case only if it has jurisdiction and that either party, or the Court sua sponte, can question jurisdiction at any time. Shelton v. Commissioner, 63 T.C. 193, 197-198 (1974); National Committee to Secure Justice, Etc. v. Commissioner, 27 T.C. 837, 839 (1957). As we stated in Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179 (1960), “questions of jurisdiction are fundamental and whenever it appears that this Court may not have jurisdiction to entertain the proceeding that question must be decided.” In other words, Rule 36(a) does not circumscribe respondent's right to question jurisdiction.

Issue 2. Last Known Address

Petitioners raise another preliminary issue concerning the validity of the notice of deficiency. They contend that respondent failed to mail the notice to them at their “last known address” in conformity with section 6212(b)(1). ⁷ In this regard, they maintain that their “permanent address” in Oklahoma City was their last known address. Again we disagree.

Neither section 6212 nor the regulation promulgated there__under⁸ defines what constitutes a taxpayer's “last known address.” We have defined it as the taxpayer's last permanent address or legal residence known by the Commissioner, or the last known temporary address of a definite duration to which the taxpayer has directed the Commissioner to send all communications during such period. Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976). Stated otherwise, it is the address to which, in light of all the surrounding facts and circumstances, the respondent reasonably believed the taxpayer wished the notice to be sent. Weinroth v. Commissioner, supra; Looper v. Commissioner, 73 T.C. 690, 696 (1980). The relevant focus is thus on the Commissioner's knowledge rather than on what in fact may have been the taxpayer's actual address in use. Alta Sierra Vista, Inc. v. Commissioner, suprai.

In reasonably determining a taxpayer's last known address, the Commissioner is entitled to use those documents submitted to him by the taxpayer. See Stewart v. Commissioner, 55 T.C. 238, 241 (1970); Birnie v. Commissioner, 16 T.C. 861, 862, 863 (1951); cf. Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. at 374-375. A taxpayer who desires to effect a change in his or her address bears the burden of providing the Commissioner with clear and concise notification of the new address. Weinroth v. Commissioner, 74 T.C. at 435; Looper v. Commissioner, 73 T.C. at 696. Absent such notification, the Commissioner is entitled to rely on the taxpayer's most recent communication relevant to last known address and is under no duty to ascertain whether the taxpayer is still at some temporary address of uncertain duration. McCormick v. Commissioner, 55 T.C. 138, 141-142 (1970); see Lifter v. Commissioner, 59 T.C. 818, 821 (1973).

In the present case, petitioners expressly requested respondent, by letter dated February 15, 1980, to direct all future correspondence to their Saudi Arabian (APO) address. There is nothing in the record to even remotely suggest that they countermanded their written instruction prior to the date on which respondent sent the notice of deficiency. Under these circumstances, we think respondent acted reasonably and that the deficiency notice was in fact mailed to petitioners at their “last known address.”⁹ Weinroth v. Commissioner, 74 T.C. at 435-436; Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. at 374; Lifter v. Commissioner, 59 T.C. at 821.

Issue 3. Timeliness of Petition

We come now to the merits of respondent's motion to dismiss. It is clear that this Court's jurisdiction to redetermine a deficiency in income tax depends on the issuance by the Commissioner of a notice of deficiency and the timely filing of a petition by the taxpayer. Secs. 6212, 6213, and 7442; Rule 13(a) and (c). Because the timely filing of a petition is a jurisdictional prerequisite, an untimely petition must be dismissed. Malekzad v. Commissioner, 76 T.C. 963, 965-966 (1981); see sec. 6213(c).

Section 6213(a) prescribes the period within which a timely petition must be filed. It provides as follows:

Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. * * * [Emphasis added.]

In Looper v. Commissioner, 73 T.C. 690, 692-696 (1980), we held that the phrase “outside the United States” modifies both...