Greve v. COMMISSIONER OF INTERNAL REVENUE, Docket No. 75686.
| Decision Date | 09 March 1938 |
| Docket Number | Docket No. 75686. |
| Citation | 37 BTA 450 |
| Parties | WILLIAM M. GREVE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. |
| Court | U.S. Board of Tax Appeals |
Lawrence A. Baker, Esq., and Henry Ravenel, Esq., for the petitioner.
F. D. Strader, Esq., for the respondent.
In this proceeding the respondent determined a deficiency in income tax for the calendar year 1931 in the amount of $23,779.05.
Two hearings have been had. The first hearing was on the questions of whether the respondent on or before March 15, 1934, mailed a statutory notice of deficiency, and whether the Board has jurisdiction in the case. That hearing was held pursuant to the petitioner's motion for a severance of the issues. Upon conclusion of the first hearing a memorandum opinion was entered holding that we had jurisdiction, and denying the petitioner's motion to dismiss for want of jurisdiction.
At the second hearing the case was called for trial on the merits. At the opening of the second hearing, counsel for the petitioner renewed his motion for dismissal for want of jurisdiction. The motion was denied by the presiding member and the proceeding was heard on the merits.
Upon further consideration we are now of the opinion that we erred in our memorandum opinion heretofore entered. Our findings are confined to the jurisdictional issue.
FINDINGS OF FACT.
The petitioner filed his income tax return for 1931 with the collector for the first district of New York on March 15, 1932. That return showed the petitioner's address as 331 Madison Avenue, New York, New York. That address had not been changed on February 23, 1934, on which date the respondent mailed a notice of deficiency for the year 1931 by registered mail addressed to the petitioner at 331 Madison Avenue, Brooklyn, New York. The deficiency notice was returned to the, respondent by the postal authorities. The respondent did not remail it to the petitioner at his proper New York address, and the notice was not in the petitioner's personal possession at any time prior to March 15, 1934. On March 8, 1934, the respondent mailed it by ordinary mail in petitioner's name, care of his Washington counsel, Lawrence A. Baker, accompanied by a letter to the petitioner informing him of the previous mailing of the notice and of its return by the postal authorities to the respondent. Thereupon said counsel remailed the notice to the respondent on March 10, 1934, informing him that, while he had a power of attorney from the petitioner, such power of attorney did not authorize him to accept the notice. Thereafter on April 5, 1934, the respondent remailed the notice to petitioner's Washington counsel, Lawrence A. Baker. On April 20, 1934, the petitioner filed a petition with the Board, reciting therein briefly the facts concerning the mailing of the deficiency notice substantially as set out above, and stating further that he was submitting to the Board for the purpose of having the Board rule on the question of jurisdiction.
The facts in this case are quite similar to those in the case of Henry Wilson, 16 B. T. A. 1280. In that case the respondent sent a notice of deficiency by registered mail addressed to Mrs. Henry Wilson at 110 Market St., Oakland, California. She had never lived at that address, and the notice was returned undelivered to the respondent and was remailed by ordinary mail addressed to the petitioner at 110 Market St., San Francisco, California. The latter address was the business address of a partnership of which the petitioner's husband was a member. The second letter, with its enclosures, was received by the petitioner. We held, on the facts in the Wilson case, that no statutory deficiency notice had been sent to the petitioner and that we had no jurisdiction. The opinion on the jurisdictional question reads as follows:
It is clear from the evidence that the address used by the Commissioner in the issuance of the original deficiency notice was not, and never had been, the residence or other address of the petitioner. Under several of our prior decisions such mailing could not be considered a compliance with the provisions of section 274 (a) of the Revenue Act of 1926, and consequently could not be considered a compliance with the provisions of section 283 (a) of the same Act. See Walter G. Morgan, 5 B. T. A. 1035; Utah Orpheum Co., 6 B. T. A. 343; Wyoming Central Association, 8 B. T. A. 1064; W. S. Trefry, 10 B. T. A. 134. The petitioner also calls attention in her brief to our decision in the case of Henry M. Day, 12 B. T. A. 161. This last decision is somewhat different from those previously cited, in that a deficiency notice was attempted to be delivered by hand, and we held that the method of notice provided by statute was exclusive, with the result that no other method, though it might be effectual in giving actual notice, could be deemed to be a compliance with the statute.
Since the original mailing did not under our decisions constitute such a notice as the statute contemplates, in that it was not mailed to the correct address, and since the second notice enclosing the first did not constitute a compliance with the statute in that it was not registered, it is apparent that no notice, either for the year 1922 or 1923, such as that provided for by statute, was ever sent to the petitioner. As a consequence, we must hold that there is no basis for a proceeding before this Board in the case of this petitioner for either of the years 1922 or 1923, and, being without jurisdiction, we dismiss the proceeding.
The reasoning quoted above is applicable here. The original mailing, having been directed to a wrong address, did not constitute a statutory notice of deficiency, and the second notice did not constitute a compliance with the statute in that it was not registered. There having been no statutory notice of deficiency, there was no basis for a proceeding before this Board, and, being without...
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