Goldstein v. Comm'r of Internal Revenue

Decision Date21 September 1954
Docket NumberDocket No. 44814.
Citation22 T.C. 1233
PartiesABRAHAM GOLDSTEIN, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
CourtU.S. Tax Court

OPINION TEXT STARTS HERE

Petitioner gave his business address on his 1945 income tax return. Thereafter he abandoned this address and on waivers for the year 1945 gave his subsequent business address. A notice of deficiency was mailed to this address. Petitioner had ceased to receive mail there. He had not notified the Commissioner of this fact and he had not given notice of his home address. The registered letter was returned undelivered and finally manual delivery was made. Petitioner filed his petition more than 90 days after the notice was mailed. Held, the notice constituted a valid notice to petitioner's last known address under section 272(k), Internal Revenue Code of 1939, and respondent's motion to dismiss for lack of jurisdiction is granted. Jay O. Kramer, Esq., for the petitioner.

Joseph F. Rogers, Esq., for the respondent.

The respondent has determined a deficiency in petitioner's income tax for the year 1945 in the amount of $4,959.54. Cash deposited by petitioner in his personal bank account during 1945 was included as income by respondent.

The petitioner assigns as error (1) that the notice of deficiency was not mailed to petitioner's last known address and (2) that the cash deposits were not income.

The respondent contends that the proceeding should be dismissed for lack of jurisdiction. In view of the conclusion we have reached on the jurisdictional question, we have made no findings of fact on the question of cash deposits.

FINDINGS OF FACT.

Abraham Goldstein is an individual residing at 64–85 Saunders Street, Forest Hills, New York. It was his home in 1945 and at all times thereafter.

Petitioner filed his Federal income tax return for the year 1945 with the collector of internal revenue for the third district of New York. He gave as his address on this return 152 West 42d Street, New York, which was his business address at that time. He listed his occupation as ‘Attorney.’

For the years 1950 and 1951 the petitioner and his wife, Ruth Goldstein, filed joint returns prior to June 1952 with the collector of internal revenue for the first district of New York. They gave as their address 64–85 Saunders Street, Forest Hills, New York. (The returns read ‘6485’ Saunders.) He listed his occupation as ‘Restaurant Manager and Operator.’

Petitioner was a practicing attorney during 1945, having been admitted to the New York bar in 1933.

Upon his discharge from the Army, petitioner attempted to reestablish his law practice. He found his law practice unrewarding and decided to go into the operation of bars and grills. He participated in the purchase and management of several bars and grills during 1945. One restaurant in which he had a financial interest was the Iceland Restaurant (hereinafter referred to as Iceland) located at 1680 Broadway, New York.

When the internal revenue agent investigating petitioner's 1945 return first contacted him in 1948 or 1949, he had ceased to occupy the office at 152 West 42d Street. All conferences between the agent and the petitioner occurred at 1680 Broadway or at the office of his accountant. He maintained an office at Iceland, kept his records there, and received substantial amounts of mail at that address.

The agent first met Goldstein at 1680 Broadway at petitioner's request. The agent knew at that time that he no longer maintained an office at 152 West 42 d Street, the address given on the 1945 return.

During the course of the investigation, petitioner signed waivers extending the time for assessing the 1945 income tax deficiency as follows:

+-------------------------------------------------------+
                ¦            ¦Statute       ¦Date of      ¦Signed by    ¦
                +------------+--------------+-------------+-------------¦
                ¦Taxable year¦extended to—  ¦consent      ¦Commissioner ¦
                +------------+--------------+-------------+-------------¦
                ¦            ¦[June 30, 1950¦Jan. 21, 1949¦Feb.¦15, 1949¦
                +------------+--------------+-------------+----+--------¦
                ¦1945        ¦[June 30, 1951¦Apr. 12, 1950¦June¦15, 1950¦
                +------------+--------------+-------------+----+--------¦
                ¦            ¦[June 30, 1952¦Apr. 19, 1951¦May ¦4, 1951 ¦
                +-------------------------------------------------------+
                

On these waivers his address is given as 1680 Broadway.

In the early months of 1952, the Iceland Restaurant Corporation was in financial difficulties. At some time prior to June 23, 1952, the corporation was thrown into bankruptcy by its creditors. The agent was never informed, nor did he have knowledge, of such bankruptcy, or that petitioner had ceased to receive mail at 1680 Broadway. He never informed the agent or anyone in the collector's office that 1680 Broadway was no longer his address.

On June 23, 1952, a notice of deficiency was timely sent by registered mail to petitioner at 1680 Broadway. The notice was returned to respondent on June 30 marked ‘removed no address.’ The petitioner was subsequently contacted by telephone at his home on July 14 or 16, 1952, and went to the collector's office, where manual delivery was made July 16, 1952. On October 13, 1952, petitioner filed a petition with this Court.

We find as an ultimate fact that the notice of deficiency was mailed to petitioner's last known address in accordance with the statute.

OPINION.

VAN FOSSAN, Judge:

Each party has raised a jurisdictional question. The petitioner contends that the notice mailed June 23, 1952, was not a valid notice of deficiency because it was not sent to petitioner's ‘last known address' as required by statute. The respondent asserts that this Court has no jurisdiction because the petition was filed more than 90 days after the mailing of the notice of deficiency. If either of these positions is sustained, this Court has no jurisdiction.

Petitioner argues that 1680 Broadway was not his ‘last known address' within the meaning of section 272(k), Internal Revenue Code of 1939.1 He testified that the agent investigating the return knew his home address prior to the mailing of the deficiency letter. The agent flatly denied this testimony. Petitioner eventually modified his testimony...

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12 cases
  • Lifter v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • March 12, 1973
    ...taxpayer's last known address may be his office rather than his residence. Welch v. Schweitzer, 106 F.2d 885 (C.A. 9, 1939); Abraham Goldstein, 22 T.C. 1233 (1954). In other words, for purposes of section 6212(b)(1), a taxpayer's last known address must be determined by a consideration of a......
  • Naftel v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • September 30, 1985
    ...Co. v. Commissioner, 73 T.C. 902, 905 (1980); Intervest Enterprises, Inc. v. Commissioner, 59 T.C. 91, 94 (1972); Goldstein v. Commissioner, 22 T.C. 1233, 1236 (1954). 10 If we find that we do not properly have jurisdiction to consider an issue, then despite a party's choice of the Tax Cour......
  • Weinroth v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • May 27, 1980
    ...for lack of jurisdiction because of the untimeliness of the petition. Stewart v. Commissioner, 55 T.C. 238 (1970); Goldstein v. Commissioner, 22 T.C. 1233 (1954). If, however, we find that the notice was not mailed to petitioners' last known address then we must grant petitioners' motion to......
  • Goodman v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • March 5, 1979
    ...receive notice of the deficiency until after the time has expired for filing a petition. Joseph Marcus, 12 T.C. 1071. See also Abraham Goldstein, 22 T.C. 1233. But while section 272(k) might imply that, in the situations specified therein, notice sent to other than the ‘last known address' ......
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