Mianus Realty Co. v. Comm'r of Internal Revenue, Docket Nos. 3137-67

• Decision Date: 04 June 1968
• Docket Number: Docket Nos. 3137-67,3199-67.
• Parties: MIANUS REALTY COMPANY, INC., PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENTMcNEIL BROTHERS, INCORPORATED, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

50 T.C. 418

MIANUS REALTY COMPANY, INC., PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENTMcNEIL BROTHERS, INCORPORATED, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket Nos. 3137-67

3199-67.

Tax Court of the United States.

Filed June 4, 1968.

Lawrence B. Schwartz, for the petitioner.

Andrew S. Coxe, for the respondent.

Respondent's motions to dismiss for lack of jurisdiction granted where petitions were filed on the 150th day after statutory notices of deficiencies were mailed to corporate petitioners at their last-known address. Facts that the only person authorized to act for petitioners was sojourning in Florida on Jan. 27, 1967, the date notices of deficiencies were mailed, left the United States on Feb. 4, 1967, and was out of the country until Apr. 6, 1967, and did not actually receive the notices until about June 15, 1967, do not make the 150-day provision of sec. 6213(a), I.R.C. 1954, applicable.

OPINION

DRENNEN, Judge:

These matters were before the Court on respondent's motion to dismiss the petitions for lack of jurisdiction on the grounds that the petitions were not timely filed, i.e., within 90 days after the notices of deficiency were mailed to petitioners. Petitioners objected on the grounds that petitioners had 150 days rather than the usual 90 days within which to file these petitions under section 6213(a), I.R.C. 1954.

The stipulated facts are so found.

Respondent issued the statutory notices of deficiency to each of the petitioners herein and mailed both of them to Box 72, Devon Station, Milford, Conn. 06460, on January 27, 1967. This address was the last-known address of both petitioners insofar as respondent was advised and was also an address at which the corporate petitioners' mail was usually received.

Roderick C. McNeil II was the president and treasurer of each of the petitioner-corporations during the year 1967 and was the only officer authorized to act on behalf of petitioners on tax matters. McNeil left the vicinity of Milford, Conn., sometime prior to January 27, 1967, and was vacationing in Florida on that date preparatory to taking a trip out of the country. McNeil actually left the United States on February 4, 1967, and did not return until April 6, 1967, during which period he was in South America. McNeil did not personally receive the notices of deficiency mailed to petitioners until some time after his return to the United States.

The notices of deficiency were delivered to the post office box to which they were addressed and were picket up there by a son of McNeil who was employed by petitioners at this time. His son was unfamiliar with the purport of the notices and turned them over to the accountant for petitioners. No action with respect to the notices were taken by the accountant or anyone else on behalf of petitioners until the notices were delivered to counsel for petitioners on or about June 15, 1967. Petitions for redetermination were thereupon prepared by counsel for petitioners and both petitions forming the basis for the actions herein were filed with the Tax Court on June 26, 1967, the 150th day after the mailing of the notices of deficiency to petitioners.¹

Respondent's motions to dismiss are based on his determination that in order to give the Tax Court jurisdiction the petitions must have been filed within 90 days after the notices of deficiency were mailed to petitioners at their then last-known addresses and, consequently, the petitions were not timely. Petitioners take the position that inasmuch as McNeil was the only officer of petitioners authorized to act with respect to these matters and he was in Florida at the time the notices were mailed and did not receive them prior to leaving the country or until after the 90th day had passed, petitioners had 150 days under section 6213(a) within which to file their petitions and, consequently, the petitions were timely filed and the Court has jurisdiction.

Section 6213(a), I.R.C. 1954, provides in pertinent part as follows:

Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed * * * , the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. * * *

It has been held in numerous cases that a petition must be filed with the Tax Court within the appropriate time mentioned in the statute in order to give the Tax Court jurisdiction over the petition for redetermination. Healy v. Commissioner, 351 F.2d 602; Estate of Frank Everest Moffat, 46 T.C. 499. The parties are in agreement on all of the facts recited above so the only issue is whether, under those circumstances, the petitioners had 90 days or 150 days within which to file their petitions in the Tax Court.

Initially we must point out that both petitioners are corporations and it is difficult to conceive that a corporation whose home office and last-known address is within the United States could be considered to be outside of the United States at the time the notices of deficiency were mailed. Petitioners claim, however, that because McNeil is the only officer authorized to act in these matters in behalf of the corporations and he was on his way out of the country when the notices of deficiency were mailed and did not receive the notices within the 90-day period, this means that petitioners were out of the country and are entitled to the 150 days provided in the statute. We disagree.

The notice referred to in ...