Goulding v. US, 88 C 232.

• Decision Date: 29 November 1989
• Docket Number: No. 88 C 232.,88 C 232.
• Citation: 726 F. Supp. 707
• Parties: Victor H. GOULDING, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

726 F. Supp. 707

Victor H. GOULDING, Plaintiff, v. UNITED STATES of America, Defendant.

No. 88 C 232.

United States District Court, N.D. Illinois, E.D.

November 29, 1989.

Randall S. Goulding, Chicago, Ill., for plaintiff.

Gerald C. Miller, D. Patrick Mullarkey, Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Victor Goulding ("Goulding") sues for a refund of 1982 federal income taxes. In response the United States has moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, the United States' motion is granted.

Facts

Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). For that purpose this Court is called on to draw all "reasonable inferences, not every conceivable inference" in the light most favorable to the nonmovant—in this case Goulding (DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987)).

In this case, however, Goulding (himself a lawyer) and his counsel (his son Randall Goulding) have totally ignored the requirements of Rule 56(e)—they have offered nothing in the form of admissible evidence (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) and cases cited there; cf. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553).¹ Because Goulding's response under this District Court's General Rule ("GR") 12(m) admits all except Paragraphs 3 and 4 of the government's GR 12(l) statement,² the following statement reflects the only relevant facts in this case—all admitted except for Paragraphs 3 and 4, as to which both the government's statement and Goulding's response are reproduced:³

1. The taxpayer, Victor H. Goulding, at all times relevant to this action maintained his legal residence and last-known address at 300 N. State Street, Chicago, Illinois 60010.

2. The taxpayer, Victor H. Goulding, timely filed his 1982 federal income tax return on or about August 16, 1983.

3. Government On July 28, 1986, the Commissioner of Internal Revenue mailed a statutory notice of deficiency to the plaintiff-taxpayer, Victor H. Goulding; the notice was sent by certified mail and was addressed to him at:

300 N. State Street

Chicago, Illinois 60010

Miller Declaration, ¶ 3 (Attachment A)

4. Government The taxpayer, Victor H. Goulding, failed or refused to claim the envelope containing the statutory notice of deficiency and the proposed deficiency was assessed.

Miller Declaration, ¶ 3 (Attachments C and D); Complaint, Exhibit A, page 2 3 & 4. Goulding Plaintiff has insufficient information to either admit nor deny the allegations of Paragraph 3. Plaintiff affirmatively alleges that he never received said notice of deficiency and further alleges that Defendant did not take reasonable measures to furnish Plaintiff with a copy of said notice of deficiency, which could have been accomplished by regular mail, Plaintiff having been out of town at the time in which the notice of deficiency was allegedly sent by certified mail, no one being available to sign for and thus receive said notice of deficiency.

5. On or about June 19 and 25, 1987, the taxpayer paid the tax, penalty, and interest in the total amount of $45,919.72.

6. On or about July 2, 1987, the taxpayer filed an amended return, seeking a refund of the amounts paid in June, 1987.

7. On November 19, 1987, the Internal Revenue Service denied the claim filed on or about July 2, 1987.

8. The above-titled action, seeking a refund of the amounts paid in June, 1987 was timely commenced within two years of November 19, 1987.

No account may be taken of Goulding's GR 12(f) ¶¶ 3 and 4. What Goulding says in the first sentence there, an inaccurate attempted paraphrase of one of the three permitted responses to a pleading under Rule 8(b) (see Gilbert v. Johnston, 127 F.R.D. 145, 146 (N.D.Ill. 1989)), has no effect at all in the Rule 56 context. And what Goulding says in the second sentence, an "allegation," simply does not qualify as admissible evidence as Rule 56(e) requires—hence it may be disregarded entirely on the current motion (Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510). Conversely, because the government's version of those two paragraphs (GR 12(e) ¶¶ 3 and 4) is properly supported in evidentiary terms, those paragraphs also stand as unrebutted facts.

Only one other factual matter needs to be set out. Goulding's claim for refund, which took the form of the amended return attached as Exhibit A to Goulding's Complaint in this action and is the subject of admitted GR 12(e) ¶ 6, reads this way in its entirety:

The taxpayer never received the 90-day letter, Notice of Deficiency, allegedly mailed to his residence. Since no Tax Court petition was filed, the assessment was made. Accordingly, on June 18, 1987, the taxpayer paid the following amounts relative to the 1982 calendar year:

                  Tax                      $25,891.00
                  Failure to Pay Penalty     1,553.46
                  Interest                  18,475.26
                                           __________
                    TOTAL                  $45,919.72
                

Since this amount was neither due nor properly assessed, and therefore illegally collected, the taxpayer hereby claims a refund of the $45,919.72 paid on June 18, 1987.

Since the taxpayer has never been provided with any Notice of Deficiency, it is unknown which amounts or items were adjusted.

Scope of the Claim for Refund

Taxpayers seeking the refund of previously-paid taxes must, of course, apprise the government of just what they claim as the basis for their entitlement. As Treas.Reg. § 301.6402-2(b)(1) (reproduced in 26 C.F.R. under the same section number) says:

The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.... A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund or credit.

Goulding's already-quoted claim is unambiguous (and narrow) in scope: It says only that the government sent its assessment notice to the wrong place to reach him personally. Yet 300 North State Street, Chicago—the address to which the notice of assessment was sent—was not only Goulding's address listed in his 1982 tax return but remained his address even through July 1987, when he filed his refund claim (it was so listed in the amended return, Complaint Ex. A), and indeed it was still his address when he filed suit here.⁴ And if there were any room for doubt (as there is not), the government's GR 12(e) ¶ 1—admitted by Goulding—identifies the same address as Goulding's "legal residence and last-known address" and says that was so "at all times relevant to this action."

Under those circumstances Goulding's only stated ground in his refund—his not having received the assessment—is wholly empty. Internal Revenue Code ("Code") § 6212(a), 26 U.S.C. § 6212(a), requires a notice of deficiency to be sent by certified or registered mail, and Code § 6212(b)(1) specifies the notice is sufficient "if mailed to the taxpayer at his last known address."

Goulding's admission that 300 North State Street filled that last description should really end the matter. Even in the context of a taxpayer's having changed addresses (as Goulding has never done either before or during the entire six-year period between his 1982 filing and the present), the case law firmly places the burden on the taxpayer to apprise the Internal Revenue Service ("IRS") of the need to send such notices to an address other than that reflected in the most recent tax return. Tadros v. Commissioner, 763 F.2d 89, 91 (2d Cir.1985) (citations omitted) explains the applicable principles:

Since the 90-day period of § 6213(a) is a jurisdictional requirement ..., failure to file within that time period requires dismissal of the petition. The 90-day period begins to run on the day the notice of deficiency is mailed.... Actual receipt of the notice is unnecessary; if it is mailed to the taxpayer's last known address it is adequate for the purposes of the statute....

The "last known address" is "the address where the Commissioner reasonably believed the taxpayer wished to be reached." ... It has been defined 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." Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd mem., 538 F.2d 334 (9th Cir.1976).

Although the mailing of notice to the taxpayer's last known address may not always provide actual notice to the taxpayer, this allowance for constructive notice protects the IRS from the overwhelming administrative burden of ascertaining each taxpayer's exact address at any given time.... To further this purpose, it becomes the responsibility of the taxpayer to communicate to the commissioner a "clear and concise notification" of any change in address.

In our own Circuit, McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir.1981) has announced the identical principle:

As stated, the principal issue in the instant case is whether the Commissioner's April 13, 1978 mailing of the notice of deficiency was sent to petitioners' "last known address" within the meaning of 26 U.S.C. § 6212(b). That phrase is defined by neither the Internal Revenue Code nor the regulations promulgated thereunder by the Commissioner. Certain principles, however, have evolved from the substantial body of case law interpreting section 6212(b). In Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd mem., 538 F.2d 334 (9th Cir.1976), the Tax Court defined "last known address" as "the taxpayer's last permanent address of a

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