Owens v. Commissioner

• Decision Date: 23 April 1987
• Docket Number: Docket No. 17697-86.
• Citation: 53 TCM (CCH) 645,1987 TC Memo 207
• Parties: Bob R. Owens and Judy M. Owens v. Commissioner.
• Court: U.S. Tax Court

53 T.C.M. (CCH) 645 (1987)

T.C. Memo. 1987-207.

Bob R. Owens and Judy M. Owens v. Commissioner.

Docket No. 17697-86.

United States Tax Court.

Filed April 23, 1987.

Philip R. Linsley, 15250 Ventura Blvd., Sherman Oaks, Calif., for the petitioners. Gordon Dickey and Monica S. Melgarejo, for the respondent.

Memorandum Opinion

DRENNEN, Judge:

Respondent's Motion to Dismiss for Lack of Jurisdiction, and petitioners' Motion to Dismiss for Lack of Jurisdiction were assigned to Special Trial Judge Peter J. Panuthos for hearing and consideration.¹ After a review of the record, we agree with and adopt his opinion which is set forth below.

Opinion of the Special Trial Judge

PANUTHOS, Special Trial Judge:

This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction and petitioners' Motion to Dismiss for Lack of Jurisdiction. Respondent seeks dismissal on the ground that the petition was not filed within the time prescribed by sections 6213(a) or 7502. Petitioners seek dismissal on the ground that the notice of deficiency was not sent to their "last known address".

Respondent issued a notice of deficiency, dated December 5, 1984, determining a deficiency in petitioners' 1979 Federal income tax in the amount of $25,472.44.² The notice of deficiency was sent to petitioners on December 5, 1984 by certified mail to 575 Oakmont Place 2814, Las Vegas, Nevada 89109 (hereinafter Las Vegas). The petition was filed with the Court on June 5, 1986, which date is over one and one-half years after the issuance of the notice of deficiency.³

In their Motion to Dismiss, petitioners allege that the notice of deficiency was not sent to their "last known address". In contrast, respondent argues that the notice of deficiency was sent to petitioners' last known address. Since the petition was not timely filed, respondent's motion should be granted unless we find that the notice of deficiency was not sent to petitioners' last known address.

Petitioners' 1979 Federal income tax return (the year which is the subject matter of the notice of deficiency) reflects an address of 2805 Bala Drive, Tempe, Arizona 85282 (hereinafter Tempe). Petitioners' 1983 Federal income tax return, which was filed sometime in April 1984, reflects the Las Vegas address. Prior to the issuance of the notice of deficiency, dated December 5, 1984, respondent apparently reviewed his records to determine petitioners' current address.⁴ Respondent determined that petitioners resided in Las Vegas as reflected by their most recently filed return. Thus, respondent sent the notice of deficiency to the Las Vegas address on December 5, 1984. Apparently, petitioners did not receive the notice of deficiency until well beyond the 90 day period for timely filing a petition. By letters, dated August 23, 1985 and September 27, 1985, respondent's Ogden Service Center contacted petitioners at the Tempe address. Both letters appear to relate to assessments which were made and outstanding balances due for the 1979 tax year.

Section 6213(a) provides that a petition must be filed within 90 days after the notice of deficiency is issued. It is well settled that to maintain an action in this Court there must be a valid notice of deficiency and a timely filed petition. See Pyo v. Commissioner Dec. 41,573, 83 T.C. 626, 632 (1984); Mollet v. Commissioner Dec. 41,141, 82 T.C. 618, 623 (1984), affd. without published opinion 757 F.2d 286 (11th Cir. 1985); Keeton v. Commissioner Dec. 36,966, 74 T.C. 377, 379 (1980). A valid notice of deficiency has been issued if it is mailed to the taxpayer's last known address by certified or registered mail. Section 6212(a) and (b)(1). Respondent, as a general rule, is entitled to treat the address appearing on the return for the year in question as the last known address absent "clear and concise notification" of a new address. Alta Sierra Vista, Inc. v. Commissioner Dec. 32,649, 62 T.C. 367, 374 (1974), affd. without published opinion 538 F.2d 334 (9th Cir. 1976).

We have generally held that the filing of a subsequent return with a change of address does not constitute clear and concise notification of a change of address. Weinroth v. Commissioner Dec. 36,976, 74 T.C. 430, 436-437 (1980); Budlong v. Commissioner Dec. 31,500, 58 T.C. 850, 852-853 (1972). However, we follow for purposes of this matter,⁵ the holdings of the Ninth Circuit to the effect that a subsequently filed tax return with a new address does give the Internal Revenue Service notice of the new address. United States v. Zolla 84-1 USTC ¶ 9175, 724 F.2d 808, 810 (9th Cir. 1984).⁶

Based on this record, it appears that respondent at or about the time of issuance of the notice of deficiency, in compliance with the rulings by the Ninth Circuit Court of Appeals, attempted to determine petitioners' current address by a review of the most recently filed return. Thus, when respondent determined that petitioners' 1983 return reflected a Las Vegas address, respondent issued a notice of deficiency to that address on the assumption that petitioners must have moved from the Tempe address. The record in this case is not clear as to why petitioners listed the Las Vegas address on their 1983 return since it appears (and they argue) that they still reside at the Tempe address.⁷

The key to the determination of "last known address" is, in light of all the surrounding facts and circumstances, the address to which respondent reasonably believed the taxpayer wished the notice to be sent. Delman v. Commissioner 67-2 USTC ¶ 9676, 384 F.2d 929, 932 (3d Cir. 1967); Brown v. Commissioner Dec. 38,765, 78 T.C. 215, 218-219 (1982); Looper v. Commissioner Dec. 36,723, 73 T.C. 690, 696 (1980).⁸ Under the circumstances here present, and the conclusion of the Ninth Circuit in Zolla, we find that respondent was justified in sending the notice to the Las Vegas address that was given on petitioners' 1983 return. Based on the foregoing, we hold that respondent did exercise reasonable care and diligence in the mailing of the notice of deficiency to the Las Vegas address.⁹

Since the notice of deficiency was issued to petitioners' last known address and a timely petition was not filed with this Court...