Manos v. Commissioner
| Decision Date | 21 August 1989 |
| Docket Number | Docket No. 7035-88. |
| Parties | Peter Manos and Patricia Manos v. Commissioner. |
| Court | U.S. Tax Court |
Peter Manos and Patricia Manos, pro se. Daniel A. Guy Jr., and Karen M. Quesnel, for the respondent.
Memorandum Findings of Fact and Opinion
This case was assigned to Special Trial Judge Francis J. Cantrel pursuant to the provisions of section 7443A(b)(4) and Rule 180 et seq.1 After a review of the record, we agree with and adopt his opinion which is set forth below.
CANTREL, Special Trial Judge:
By his motion, which we decide herein, respondent requests the Court to dismiss this deficiency action for lack of jurisdiction.
On October 17, 1984 petitioners filed a joint 1983 Federal income tax return with the Internal Revenue Service Center at Austin, Texas.2 Their address, as shown on that return, was 5806 Windmier, Dallas, Texas 75252 (the Windmier address). At paragraph 1 of their one and a half page petition filed on April 11, 1988 and which is dated April 8, 1988, they assert that their legal residence is the Windmier address. However, after their signatures on page 2 they list another address—P.O. Box 619, Addison, Texas 75001 (the Addison address).
From February 5, 1987 through December 30, 1987 petitioners received at least six letters from the office of the District Director, Internal Revenue Service, Las Vegas, Nevada (Las Vegas office), all pertaining to the audit of their 1983 return and all addressed to 6902 Rusty Fig, Austin, Texas 78750 (the Rusty Fig address). A computer search conducted by respondent in October 1987 using Mr. Manos' social security number disclosed petitioners' address to be 4550 Sunbelt Drive, Dallas, Texas 75248 (the Sunbelt Drive address). Petitioners at no time gave the Las Vegas office or any other Internal Revenue Service office clear and concise notification of a new address to be used for correspondence to them.
On January 8, 1988, the Las Vegas office sent duplicate original notices of deficiency by certified mail to petitioners. Each notice determined therein a deficiency in petitioners' Federal income tax and additions to the tax for the taxable calendar year 1983 in the respective amounts of $17,237 and $4,558. The notices were addressed as follows:
Peter Manos and Patricia Manos 6902 Rusty Fig Austin, Texas 78750 and Peter Manos and Patricia Manos 4550 Sunbelt Drive Dallas, Texas 75248
The notice of deficiency mailed to the Sunbelt Drive address was returned to the Las Vegas office on January 21, 1988 whereas the notice mailed to the Rusty Fig address was not returned.
Petitioners' last address known to the Las Vegas office on the date the deficiency notices were mailed was the Rusty Fig address which, in light of all the facts and circumstances, respondent reasonably believed petitioners wished the notice of deficiency to be sent. Petitioners actually received that notice without prejudicial delay "sometime in February 1988," no earlier than 24 days nor no later than 52 days after its mailing. Their failure to file a timely petition was due to their inaction after receiving that notice.
The 90-day period for the filing of a timely petition with this Court expired on Thursday, April 7, 1988, which was not a legal holiday in the District of Columbia. As stated hereinbefore, the petition was filed on April 11, 1988. It was received by the Court in an envelope bearing thereon clearly legible U.S. postmark dates of April 8, 1988.
OpinionRespondent's primary position is that the deficiency notices were mailed to petitioners at their last address known to respondent on the date they were mailed pursuant to sections 6212(a) and (b)(1) and, as a consequence, the petition was not timely filed in accord with the mandates of sections 6213(a) and 7502(a). Alternatively, he argues that even if the notices were not mailed to petitioners' last known address, they received actual notice of the deficiencies determined against them in sufficient time to file a timely petition with this Court. On the other hand, petitioners exhort, in essence, that the notices are invalid in that they were not mailed to their last known address contending, that the Windmier address was their legal residence and the Addison address was their correct mailing address for correspondence purposes. Notwithstanding, they urge that we consider their petition to be timely filed since it was filed within 90 days after their receipt of the notice addressed to the Rusty Fig address. On this record, we must and do agree with respondent.
Section 6212(a) authorizes the Secretary of the Treasury to send a notice of deficiency by certified mail to a taxpayer when he determines that a deficiency exists in the taxpayer's taxes. Section 6212(b)(1) provides, with an exception not relevant herein, that the notice authorized by section 6212(a) shall be sufficient if mailed to the taxpayer at his "last known address." Respondent has the burden of proving that the notice of deficiency was properly mailed. August v. Commissioner Dec. 30,260, 54 T.C. 1535, 1536 (1970). See Cataldo v. Commissioner Dec. 32,032, 60 T.C. 522 (1973), affd. per curiam 74-2 USTC ¶ 9533 499 F.2d 550 (2d Cir. 1974).
Neither section 6212 nor the regulations promulgated thereunder define a taxpayer's "last known address." We have defined it as the address to which, in light of all the facts and circumstances, respondent reasonably believed the taxpayer wished the notice of deficiency to be sent. In determining whether respondent has mailed a notice to the taxpayer's "last known address," the relevant inquiry thus pertains to respondent's knowledge at the time the deficiency notice is mailed rather than to what may in fact be the taxpayer's most current address. Monge v. Commissioner Dec. 45,827, 93 T.C. ___, (July 12, 1989), slip op. at 18; Weinroth v. Commissioner Dec. 36,976, 74 T.C. 430, 435 (1980); Keeton v. Commissioner Dec. 36,966, 74 T.C. 377, 382 (1980). Whether respondent has properly discharged this obligation is a question of fact, and where he has it is well settled that the notice of deficiency is valid for all purposes from the date of its mailing whether or not the taxpayer receives it. United States v. Zolla 84-1 USTC ¶ 9175, 724 F.2d 808, 810 (9th Cir. 1984), cert. denied 469 U.S. 830 (1984); Frieling v. Commissioner Dec. 40,284, 81 T.C. 42, 48-49 (1983).
Because of the proclivity of taxpayers to move without notifying the Commissioner of their new address, the burden is on the taxpayer to provide the Commissioner with clear and concise notification of the new address. Weinroth v. Commissioner, supra at 435, and cases there collected. It has long been held that notification of a new address must be given to the office of the Internal Revenue Service (here, the Las Vegas office) where the audit was conducted and which mailed the notice of deficiency. Frieling v. Commissioner, supra at 50, and Weinroth v. Commissioner, supra at 437. The record is clear that petitioners did not provide the Las Vegas office or any other Internal Revenue Service office with clear and concise notification of a new address to be used in lieu of the Sunbelt Drive address, which was obtained by respondent in the computer search in October 1987 (some 3 months prior to the mailing of the deficiency notices), or the Rusty Fig address, which was the address used by the Las Vegas office in six letters to petitioners from February 5, 1987 through December 30, 1987 (9 days before the deficiency notices were mailed), all of which letters petitioners admittedly received. Indeed, petitioners admit receiving the notice mailed to the Rusty Fig address at sometime between 24 and 52 days after its mailing.
Section 6213(a), which provides for the filing of petitions with this Court, provides in pertinent part:
Within 90 days * * * 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. * * *
The burden of proving that this Court has jurisdiction is upon petitioners. Blum v. Commissioner Dec. 43,080, 86 T.C. 1128, 1133 (1986); Storelli v. Commissioner Dec. 42,939, 86 T.C. 443, 446 (1986). A petition for redetermination of a deficiency must be filed with this Court within 90 days after the notice of deficiency is mailed to a taxpayer. Failure to file within the prescribed period requires that the petition be dismissed for lack of jurisdiction. Shipley v. Commissioner 78-1 USTC ¶ 9211, 572 F.2d 212, 213 (9th Cir. 1977), affg. a Memorandum Opinion of this Court Dec. 34,154(M); Estate of Rosenberg v. Commissioner Dec. 36,804, 73 T.C. 1014, 1016-1017 (1980); Estate of Cerrito v. Commissioner Dec. 36,778, 73 T.C. 896, 898 (1980); Stone v. Commissioner Dec. 36,708, 73 T.C. 617, 618 (1980); Cassell v. Commissioner Dec. 36,062, 72 T.C. 313, 316-317 (1979); Estate of Moffat v. Commissioner Dec. 28,033, 46 T.C. 499, 501 (1966). Hence, under this statute, in order to be timely filed, a petition must be received at the Tax Court in Washington, D.C., on or before the 90th day. Here, the 90th day after the mailing of the deficiency notices was Thursday, April 7, 1988, which was not a legal holiday in the District of Columbia. The petition was received and filed by the Court on April 11, 1988.
Section 7502(c) provides, in part, that if a properly addressed, postage prepaid envelope or wrapper containing the petition is deposited in the mail in the United States and bears a United States postmark date which is on or before the last day for filing, the postmark date will be deemed the filing date. It is clear that the United States postmark dates on the envelope in which the petition was received (i.e., April 8, 1988) are beyond the 90-day...
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