Gregory W. McKay v. Commissioner of the Internal Revenue Service
886 F.2d 1237
9th Cir.
1989
Check Treatment

*1 BROWNING, Before SCHROEDER NOONAN, Judges. Circuit BROWNING, R. JAMES Judge: 1977 the issued a notice

On penalties of deficiencies and fraud spect appellant’s 1972 and 1973 income *2 1238 on the at later, appellant’s objection based appel- over eight years returns. Some tax privilege for torney-client privilege. The for petition se redetermina- pro filed a lant any way in testimony that “would petition bids dismissed the tax court tion. The pro 6213(a), convey of confidential the substance 26 U.S.C. untimely under §

as communications between filed fessional petition [a a be that such which attorney.” his In re Oster of and after the notice “[wjithin days ... client] Cir.1983) 591, (9th houdt, (per in 6212 is section deficiency authorized curiam). testify regarding Sturman mailed.” in confidence made to Sturman disclosures not receive he did Appellant claims gave appel regarding advice Sturman found deficiency. The tax court respect to confidences. He lant those copy of the notice a appellant received conveyed infor only that he had testified Sturman, ample D. attorney, Herbert his government to his client. mation for review timely petition time to file a holding analogous to those that This case is finding is not That factual the tax court. testify attorney may in a required an be v. Mayors Commis clearly erroneous. See for prosecution jumping,” “bail Cir.1986). 757, (9th sioner, F.2d 3150, he had his client of that § re and Although records of hearing at which the defen the date destroyed after 5 ceipt of such notices were See, appear. e.g., failed to United dant he re testified years, appellant’s 67, Freeman, 519 F.2d v. States remained and it was and ceived the notice Cir.1975). relaying message of this “The personally deliver practice to his normal the nature of a confidential commu not in a few his clients within such notices to merely Defense served nication. counsel The tax court credited days receipt. as a conduit for transmission mes noting testimony, was Sturman’s Hall, sage.” (quoting v. United States witness, and that forthright and credible 875, (2d Cir.1965)). uncontroverted. Such testimony his was Appellant suggests Sturman is biased the tax are for credibility determinations against him. There is no evidence City Bessemer v. court. See Anderson event, any support the claim. record to 573-75, 1504, 564, 470 U.S. S.Ct. City, credibility, goes to see United States bias (1985). Moreover, 1511-12, 84 L.Ed.2d 518 45, 50-51, Abel, S.Ct. v. testify and since petitioner declined to (1984), credibility and 83 L.Ed.2d 450 his peculiarly issue was within fact to determine. was the fact-finder See properly concluded knowledge, court Vaccaro, F.2d States him, testimony unfavorable his would be Cir.1987). Terminal Elevator Co. citing Wichita (1946), objects was Appellant Sturman Cir.1947). aff'd, 162 F.2d government’s in the not listed as witness States, 275 Co. v. United Mammoth Oil required by a memorandum as stand trial 72 L.Ed. 137 U.S. Appellant the tax court. ing order of Wigmore on Wigmore, also J. prejudiced. government’s memo 285, 289 Evidence §§ indicated Sturman would be called randum appellant out, impeachment tes witness the find- an government points As the tified, appellant by contemporaneous confirmed ing was days several including subpoena issued Sturman Stur- documentary evidence— ample opportunity to He had before trial. 1977 to letter of man’s testimony. prepare to meet Sturman’s receipt of the acknowledging that al- deficiency notice—and fact Appellant contends the no- appellant denied though it was deficiency was ineffective because tice, he attached to his “last address” not addressed review. 6212(b)(1). meaning section within goal of this is the central notice” court “Actual tax Appellant contends Commissioner, 527 testimony section. receiving Sturman's erred Clodfelter majority’s decision in this case will “[I]f make administration of the law for the prejudicial in actual notice without results future more burdensome. delay it meets the conditions of ... 6212(a) no matter to what address the Congress has declared that when the *3 Id. at 757. successfully

notice was sent.” IRS, means, by appropriate sends a notice the same reason it is irrelevant For deficiency taxpayer’s to the last known conveyed by copy of the actual notice is regardless the notice is effective deficiency origi- rather than the taxpayer actually notice of whether the receives 6212(b)(1)(1982); See U.S.C. Unit it. provide the nal. Either is sufficient Zoila, ed States v. 724 F.2d taxpayer with the information denied, Cir.), cert. by filing a pre-payment review obtain (1984). 83 L.Ed.2d An IRS timely petition in the tax court. attorney of a notice to an can be as effec Commissioner, 769 F.2d Mulvania v. taxpayer’s as a tive to the “last (9th Cir.1985), contrary. is not to the address,” only taxpay when the taxpayer’s There the accountant requests er that all communications be taxpayer the of the of a See D 'An directly attorney. mailed to the deficiency. misaddressed notice of There Commissioner, drea v. 263 F.2d was “no evidence the record that [the Commissioner, (D.C.Cir.1959); Reddock v. discussed the contents accountant] (1979). A power T.C. limited Mulvania,” 1377, and id. at notice with requesting copies of corre physically a no Mulvania “never received spondence taxpayer’s be sent to the attor Id. deficiency.” at tice of 1379. IRS ney agent, or other does not effect a argued tax that it was sufficient that the change last known ad knowledge of the notice payer “had actual dress, and notice to the at We even not its contents.” taxpayer. constitute valid notice to the Clod contrary, distinguishing held to the Commissioner, McDonald v. as a case in which a notice of defi Commissioner, Houghton felter “actually, physically ciency was T.C. Id. taxpayer.” decisions, prior In our court’s we have recognized may provide that the IRS appellant, taxpayer unlike the valid Since Mulvania, taxpayer by personally notice to the deliv prej had “actual notice without ering of the notice to the delay” udicial of the contents of the 1977 CIR, Tenzer v. 285 F.2d notice, through timely receipt of an exact Cir.1960), by mailing the notice to an eight filed copy of that address other than the dismissed. Clod years properly later was actually known address if the notice reach 756; 6213(a); felter, 527 F.2d at 26 U.S.C. § mail, see Clod taxpayer through the es the see also Tenzer v. CIR, Cir. felter (9th Cir.1960) (copy per of notice 1975). squarely, correct But we have sonally taxpayer by agent of delivered to agent taxpayer the ly, held that the Commissioner). ruling We confine our by informing tax provide cannot notice the beyond cases in which it is contention that copy of payer agent that the has received a taxpayer has received all of the infor CIR, a misaddressed notice. Mulvania by receipt mation that would be furnished 1376, 1380-81 is, deficiency of the notice of itself —that case, did not mail the this taxpayer cases which the has received ad- to the last known notice deficiency. duplicate of the notice of designate his taxpayer dress. AFFIRMED. recipient of all communi- attorney to be the case, as in from the In this

cations IRS. Mulvania, SCHROEDER, Judge, taxpayer agent, from his dissenting: ceived was actions, through his own renders that the notice majority holds IRS. Yet errors harmless. Commissioner’s correctly had if the IRS as valid as distin- mailing. original addressed 1380-81. 769 F.2d at ground that here on the guishes Mulvania contrary spirit, to the Today’s decision with an taxpayer agent provided the letter, decision and of the of that if not the notice, whereas copy of the physical actual operate. I intended it to Congress law did not. agent Mulvania respectfully dissent. therefore decision, the lines were today’s Until did not itself clarity; if the IRS

drawn taxpayer or to the

provide actual notice *4 notice to

mail invalid. We notice was line, that in hold from that depart

now provided can be

some circumstances rather own AND BAR- COMMODITY NATIONAL shift inquiry must now the IRS. than ASSOCIATION, TER NATIONAL show, to the nature records from what IRS EXCHANGE; Members COMMODITY tax advisors between of communications of the National Com- & Subscribers opens up the This decision and clients. modity & Barter Association/National time-consuming liti- costly and prospect of Voss; Commodity Exchange; John relationships. probing sensitive gation Beals, individually rep- and as Mitchell record provides a disincentive accurate Commodity of the National resentative IRS, and will part of the keeping on the Com- & Barter Association/National tax advis- between communication impede Pleasant, modity Exchange; John S. and their clients. ors Plaintiffs-Appellants, salvaging a few misdi- benefit high price. is not worth this rected notices GIBBS, Individually and as B. Lawrence view, aptly Judge Goodwin my Chief Internal Revenue Commissioner of policy concerns the relevant summarized al., Service; Defendants-Appellees. et opinion in Mulvania: to lose for the It is better its clerical the result of revenue as some States Court uncertainty. If create error than to Tenth Circuit. [the intentionally or agent], either Sept. Mulva- unintentionally, had not informed nia of deficiency, would then Mulvania any notification of the

not have requires more solid

deficiency. Tax law of a tax happenstance

footings than the tell him of telephoning client

adviser from the IRS.

a letter that, defi- where a

We conclude the tax-

ciency has been misaddressed is an adviser who sent

payer or

merely authorized receive necessary actual notice

such the notice to make not sufficient forgiven for its The IRS is

valid. mailing notice to the

clerical errors or party unless

wrong