D'ANDREA v. CIR, 14640.

• Decision Date: 19 February 1959
• Docket Number: No. 14640.,14640.
• Citation: 263 F.2d 904
• Parties: A. Ralph D'ANDREA, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

263 F.2d 904 (1959)

A. Ralph D'ANDREA, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 14640.

United States Court of Appeals District of Columbia Circuit.

Argued January 23, 1959.

Decided February 19, 1959.

Mr. Robert Ash, Washington, D. C., for petitioner.

Mr. Charles B. E. Freeman, Attorney, Department of Justice, of the bar of the Supreme Court of Massachusetts, pro hac vice by special leave of Court, with whom Asst. Atty. Gen. Charles K. Rice and Mr. Lee A. Jackson and Miss Melva M. Graney, Attorneys, Department of Justice, were on the brief, for respondent. Mr. Marvin W. Weinstein, Attorney, Department of Justice, and Mr. Rollin H. Transue, Sp. Atty., Internal Revenue Service, also entered appearances for respondent.

Before PRETTYMAN, Chief Judge, and WILBUR K. MILLER and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

The Commissioner of Internal Revenue sent by registered mail on June 25, 1957, a notice of income tax deficiency to A. Ralph D'Andrea, addressing him at 64 East 34th Street, New York, N. Y. On the same day he sent a copy by ordinary mail to Charles H. Renthal, 1501 Broadway, New York, N. Y., the petitioner's attorney in fact.

The registered letter was not delivered to D'Andrea, but was returned to the sender. The copy was duly received by Renthal. A petition for redetermination of the deficiency was mailed to the Tax Court of the United States September 24, 1957.

On November 22, 1957, the respondent Commissioner filed with the Tax Court a motion to dismiss "for lack of jurisdiction for the reason that the petition was not filed within ninety days after the mailing of the statutory notice of deficiency (not counting Saturday, Sunday or a legal holiday in the District of Columbia as the 90th day), as provided in Section 6213(a) of the Internal Revenue Code of 1954 26 U.S.C.A. § 6213 (a)." In support, it was alleged that "the notice of deficiency was mailed to the petitioner on June 25, 1957; that the time for filing a petition with the Tax Court expired on September 23, 1957, which date was not a Saturday, Sunday or a legal holiday in the District of Columbia; and that the petition herein was not delivered by the United States mail to the Tax Court until September 24, 1957, pursuant to Section 7502 of the Internal Revenue Code of 1954 26 U.S.C.A. § 7502."¹

After a hearing, the Tax Court granted what it described as "respondent's motion to dismiss for lack of jurisdiction alleging that the petition was not filed with the Court within the time prescribed by statute." Thereafter, the petitioner filed a motion to vacate the order of dismissal, alleging facts tending to show the notice of deficiency was not sent by registered mail to his last known address as required by § 6212 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6212. The effect of the motion was to charge that, instead of dismissing for lack of jurisdiction on the ground of tardy filing, the Tax Court should have dismissed for lack of jurisdiction on the ground that the 90-day deficiency notice was not sent by registered mail to the petitioner at his last address known to the Commissioner.

The motion to vacate the order of dismissal was denied April 16, 1958, by the following order entered by the Tax Court:

"This proceeding was dismissed for lack of jurisdiction on the ground that the Tax Court lacked jurisdiction because the petition to the Court was not filed within the time allowed by statute. The petitioner has filed a motion to vacate that order of dismissal because the notice of deficiency was sent by registered mail to the petitioner at the address shown on the return² whereas the petitioner had notified the Commissioner prior to the mailing of that notice that communications in regard to his tax liability should be sent to him care of a named person at the address of that person, which address was different from that of the taxpayer shown on his return.

"The taxpayer is thus hopelessly placed on the horns of a dilemma. If the notice sent by registered mail to the taxpayer at the address shown on his return was a proper notice under the law, then the order dismissing the proceeding for the reasons given therein was proper. But if that notice was not a proper one as provided by law because it was not sent by registered mail to the last address of the taxpayer known to the Commissioner, then the record shows that no notice of deficiency was ever sent in accordance with the law, and for that reason this Court has no jurisdiction and the dismissal for lack of jurisdiction was not improper. After due consideration, it is

"Ordered, that the petitioner\'s motion to vacate is denied."

Decision turns on whether the statutory notice was sent to the petitioner "at his last known address." If it was, the Tax Court may have been correct in dismissing the petition for redetermination as having been filed one day too late.³ But if it was not sent "to the last known address," then the notice which starts the running of the 90-day period was never given, and the dismissal for lack of jurisdiction should have been based on that fact. For, in the total absence of a 90-day registered letter to the taxpayer or his duly authorized representative,⁴ the statutory scheme has not...