Lead Opinion
OPINION.
The Commissioner mailed a notice on April 10, 1959, to—
Estate of William Krueger, Deceased
Anna Krueger, Administratrix, and
Mrs. Anna Krueger, Surviving Wife
10230 South Walden Parkway
Chicago 43, Illinois
determining a deficiency in income tax for 1955. Anna filed a petition with the Court for her seif and as Administratrix of William’s estate pursuant to that notice, on August 18, 1959, which was more than 90 days but less than 150 days after the mailing of the notice of deficiency. The Commissioner moved to dismiss the proceeding for lack of jurisdiction on the ground that the petition was not filed within the 90-day period requirеd by law. The petitioners filed an objection to the granting of the motion on the ground that they had 150 days within which to file the petition. The motion came on for hearing on December 16, 1959, рrior to which time the parties had filed a stipulation of facts.
Anna resides at the address to which the notice of deficiency was mailed. She is the widow of William Krueger who died on Fеbruary 19, 1957. They filed a joint return for 1955. Anna was outside the United States on a world cruise from January 17, 1959, to May
Section 272(a) (1) of the 1939 Code requires that a petition be filed within 90 days after the mailing of the notice. The last sentence of that section is as follows: “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.” The Tax Court, in Rebecca S. Hamilton,
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 аrea “on some settled business and residential basis, and not on a temporary basis * * * .» We nothing in the language of the statute or in its legislative history to suggest that Congress intended to differentiatе between persons temporarily absent from the United States and persons “regularly residing” abroad. Whatever the reason for the taxpayer’s absence from the country receipt of the deficiency notice was likely to be delayed if he was not physically present at the address to which the notice was sent; hence he was given additionаl time to apply for review of the deficiency.
The Tax Court agrees with the opinion of the Court of Appeals for the Second Circuit in the Mindell case and has held in the present case that the petition filed after 90 days, but within 150 days from the mailing of the notice, was timely filed. The statutory provision applicable here is section 6213(a) of the 1954 Code but it cоntains provisions similar to those quoted above.
Reviewed by the Court.
Dissenting Opinion
dissenting: The filing of a petition in this Court is jurisdictional, and failure to file the petition within the time prescribed in section 6213(a), 1954 Code, is a bar to сonsideration by this Court. Teel v. Commissioner,
The issue involves construction of the clause in sectiоn 6213(a) reading, “or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia.” In particular, the problem revolves about the meaning of the phrase, “if the notice is addressed to a person outside the States of the Union.” The question has seldom been considered and the regulations of the Commissioner
Consideration of whether this Court has jurisdiction to consider a cause must, without question, start with examination of the statutory notice of deficiency which is the genesis of our jurisdiction in all events, and, therefore, construction of the provisions of section 6213(a) involves consideration of the provisions of section 6212(a) and (b) (1). Section 6212(a) provides that when the Commissioner determines a tax dеficiency he is authorized to send notice of such deficiency to a taxpayer by registered mail, and, of course, the “notice” mentioned in section 6213(a) is the same notice described in section 6212(a). It is provided in section 6212(b) (1) that the mailing of the deficiency notice to the taxpayer at his last known address shall be sufficient for the purposes of a tax imposed by chapter 1 or 12 and of subchapter B which relates to deficiency procedures and includes the prerequisites for the filing of a timely petition in this Court. Sectiоn 301.6212-1 (b) of the Eegulations on Procedure and Administration under the Internal Eevenue Code of 1954 is substantially the same as the statute.
The deficiency notice which was mailed on April 10, 1959, was mailed to 10230 South Walden Parkway, Chicago 43, Illinois. It is admitted that that address is the last known address of Anna Krueger, and that it is the address of her residence. Also, it appears to be implicit that she had not changed her last known address. It is well established that the statutory period for filing a petition with this Court, be it 90 or 150 days, begins from the date of mailing of the deficiency notice, not from its aсtual receipt. Glavin v. Commissioner,
In my opinion the clause in section 6213(a) reading, “if the notice is addressed to a person outside the States of the Union” means that if the taxpayer is to receive the 150-day period for filing his petition in this Court the notice of deficiency must be addressed to him at his proper address outside the States of the Union. See the dissenting opinion of Judge Black in Rebecca S. Hamilton, supra, p. 755.
I believe that the majority view in this case places a strained construction upon the words “addressed to a person outside the States of the Union.” Within the context of the provisions of section 6212(a) and (b) (1) the word “addressed” must be understood to mean directed and mailed by the Commissioner to the taxpayer “at his last known address.” The construction which is adоpted here misplaces the determinative consideration upon the physical location of the person (taxpayer) whose “last known address” is involved.
The addition to section 6213(a) of the jurisdictional period of 150 days from the date of the mailing of the deficiency notice was made without any modification of the provisions of section 6212(b)(1). Apparently, it was not deemed necessary to modify or enlarge upon any of the provisions of section 6212(b)(1). In that situation, it would appear that the proper construction of the words “addressed to a person outside of the States of the Union” must be in harmony with the now well-established construction of the 90-day period which has been made in conjunctiоn with the provisions of section 6212(b)(1). The majority view, in my opinion, not only represents an incorrect construction of the part of section 6213(a) which is involved but also constitutes an еnlargement upon the statutory provision and, therefore, judicial legislation. The conclusion reached here serves to narrow the field to which the 90-day period for filing a рetition has applied up to now, to extend the area to which the 150-day period applies, and to introduce an exception to the rule that this Court does not havе the power or the right to consider a petition which is filed here after the
I disagrеe with the conclusion of the majority that the petitioner had 150 days from the date of the mailing of the deficiency notice within which to file her petition with this Court, and respectfully note my dissent.