Damian K. Gregory & Shayla A. Gregory v. Commissioner, 152 T.C. 7

Background

Damian and Shayla Gregory moved in 2015 from Jersey City to Rutherford, NJ, but filed their 2014 Form 1040 using the Jersey City address.
After filing the 2014 return, they submitted two Forms 2848 (power of attorney) in Nov. 2015 and a Form 4868 (extension) in Apr. 2016, each showing the Rutherford address.
The 2014 Form 2848 and the 2016 Form 4868 (and their instructions) expressly stated they would not update a taxpayer’s IRS address of record.
On Oct. 13, 2016 the IRS mailed a notice of deficiency to the Jersey City address (the address on the most recently filed properly processed return); the notice was returned unclaimed.
The Gregorys learned of the notice on Jan. 17, 2017 and filed a petition that day (later than 90 days after the notice mailing).
The Tax Court considered cross-motions to dismiss for lack of jurisdiction: Gregorys argued the notice was mailed to the wrong address; the Commissioner argued the petition was untimely.

Issues

Issue	Gregorys' Argument	Commissioner’s Argument	Held
Whether notice of deficiency was mailed to the taxpayer’s "last known address."	Forms 2848 and 4868 (showing Rutherford) gave IRS clear and concise notice of a new address.	Last known address is the address on the most recently filed properly processed return (2014 Form 1040: Jersey City); forms 2848/4868 do not update address.	Held for Commissioner: Jersey City (2014 return) was last known address; notice validly mailed there.
Whether Forms 2848/4868 constitute a “return” for updating the IRS address of record.	Forms should update address because they bear the new address and are filed with IRS.	Neither form is a return for address-update purposes under regulations and Rev. Proc. 2010-16.	Held: Neither Form 2848 nor Form 4868 is a return for this purpose.
Whether Forms 2848/4868 constitute "clear and concise notification" of a different address.	Listing new address on those forms provided clear notice of change.	Instructions and Rev. Proc. 2010-16 show those forms are not clear and concise notice; proper notice requires a signed statement with old address and TIN or Form 8822.	Held: Neither form satisfies clear and concise notice requirements.
Whether the Tax Court has jurisdiction to redetermine the deficiency.	If notice not sent to last known address, petition could be timely; court would have jurisdiction.	Notice was properly mailed to last known address; petition untimely so no jurisdiction.	Held: No jurisdiction because notice was validly mailed and petition untimely; motion to dismiss granted.

Key Cases Cited

Estate of Young v. Commissioner, 81 T.C. 879 (Tax Ct.) (scope of Tax Court jurisdiction).
Cooper v. Commissioner, 135 T.C. 70 (Tax Ct.) (court can decide its own jurisdiction).
Baron v. Commissioner, 71 T.C. 1028 (Tax Ct.) (notice of deficiency as prerequisite to Tax Court jurisdiction).
McKay v. Commissioner, 89 T.C. 1063 (Tax Ct.) (valid mailing to last known address controls even if taxpayer did not receive notice).
Beard v. Commissioner, 82 T.C. 766 (Tax Ct.) (Beard test for what constitutes a return).
Expanding Envelope & Folder Corp. v. Shotz, 385 F.2d 402 (3d Cir.) (prior authority holding POWA could effect address change where form did not disavow that effect).