Mindell v. COMMISSIONER OF INTERNAL REVENUE
| Decision Date | 24 November 1952 |
| Docket Number | No. 89,Docket 22451.,89 |
| Citation | 200 F.2d 38 |
| Parties | MINDELL v. COMMISSIONER OF INTERNAL REVENUE. |
| Court | U.S. Court of Appeals — Second Circuit |
Boris Kostelanetz, New York City, Rexford E. Tompkins, New York City, of counsel, for petitioner.
Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack and George F. Lynch, Sp. Assts. to Atty. Gen., for respondent.
Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.
The Internal Revenue Code, 26 U.S. C.A., § 272(a) (1), provides that within 90 days after the mailing of a deficiency notice, the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. The final sentence of the paragraph reads:
"If the notice is addressed to a person outside the States of the Union and the District of Columbia, the period specified in this paragraph shall be one hundred and fifty days in lieu of ninety days."
On March 15, 1951 the Commissioner sent a deficiency notice by registered mail addressed to the taxpayer at his last known address in Woodmere, Long Island, New York. Within 150 days but more than 90 days after the mailing, the taxpayer filed his petition for redetermination. The Commissioner moved to dismiss the petition as filed too late. Upon the hearing of the motion the movant introduced evidence that in March 1950 the taxpayer had been indicted for tax evasion, pleaded not guilty, and been released on bail, and that the bail was forfeited on February 9, 1951. There was also received in evidence an affidavit by the taxpayer, dated December 6, 1951, that he and his family had gone to Mexico in November 1950 and remained there continuously thereafter, his children being in school in Mexico City and he being regularly employed there. Without opinion the Tax Court granted the Commissioner's motion and dismissed the petition for lack of jurisdiction.
We agree that the filing of a timely petition for redetermination is jurisdictional.1 We agree also with the Tax Court's interpretation of section 272(a) (1) that the words "outside the States of the Union" refer to the word "person" rather than to the word "addressed." Hamilton v. Commissioner, 13 T.C. 747. But we cannot agree with its additional conclusion in that case, 13 T.C. at page 753, that the statute grants the 150 day period only to persons outside the designated area "on some settled business and residential basis, and not on a temporary basis * * *". We find nothing in the language of the statute or in its legislative history to suggest that Congress intended to differentiate between persons temporarily absent from the United States and persons "regularly residing" abroad....
To continue reading
Request your trial
-
Hallmark Research Collective v. Comm'r of Internal Revenue
... 1 159 T.C. No. 6 HALLMARK RESEARCH COLLECTIVE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent No. 21284-21 United States Tax Court November 29, 2022 ... The Tax ... Court ... the timely filing of a deficiency petition is a ... jurisdictional requirement. See Mindell v ... Commissioner , 200 F.2d 38, 39 (2d Cir. 1952). And the ... Third, Sixth, and Ninth Circuits followed their precedents in ... ...
-
Collective v. Comm'r of Internal Revenue
...well as the BTA) in holding that the timely filing of a deficiency petition is a jurisdictional requirement. See Mindell v. Commissioner, 200 F.2d 38, 39 (2d Cir. 1952). And the Third, Sixth, and Ninth Circuits followed their precedents in continuing to construe the deficiency case deadline......
-
Smith v. Comm'r, 140 T.C. No. 3
...at 231; Lewy v. Commissioner, 68 T.C. at 783-784; Estate of Krueger v. Commissioner, 33 T.C. 667, 668 (1960). In Mindell v. Commissioner, 200 F.2d 38, 39 (2d Cir. 1952), a U.S. resident was temporarily absent from the country when the notice was mailed and delivered. The Court of Appeals fo......
-
Lewy v. Comm'r of Internal Revenue
...the deficiency notice is mailed is not controlling. A case which illustrates the proper approach to this issue is Mindell v. Commissioner, 200 F.2d 38 (2d Cir. 1952). The Second Circuit in concluding that persons temporarily absent from the United States are entitled to 150 days within whic......