SHELBY L. AND DONZELLA H. JORDAN, Pеtitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14572-07L
UNITED STATES TAX COURT
Filed October 5, 2011
T.C. Memo. 2011-243
WELLS, Judge
*This opinion supplements Jordan v. Commissioner, 134 T.C. 1 (2010).
Miriam C. Dillard, for respondent.
SUPPLEMENTAL MEMORANDUM OPINION
WELLS, Judge: This case is before the Court on the parties’ cross-motions for summary judgment pursuant to Rule 121.1 We
Background
Many of the relevant facts are set forth in our prior Opinion in Jordan v. Commissioner, 134 T.C. 1 (2010) (prior Opinion), and are incorporated by reference. Additionally, some of the facts discussed in this Opinion are taken from the parties’ moving papers and attachments.2
At the time they filed their petition, petitioners resided in California.
Respondent sent a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination) to petitioners with respect to a lien filed to collect petitioners’ unpaid tax liabilities for their 1986, 1987, 1988, 1989, 1994, and 1995 tax years. Petitioners timely filed a petition with this Court seeking review of respondent‘s determination. Petitioners’ taxes for their 1987, 1994, and 1995 tax years were аssessed on the basis of their joint tax returns
Petitioners filed their 1986 tax return on December 9, 1987; their 1988 tax return on June 22, 1990; and their 1989 return on September 21, 1990. Petitioners’ taxes for the 1986, 1988, and 1989 tax years were assessed following audits. In the reply brief they filed before we entered our prior Opinion, petitioners contended for the first time that the administrative record showed that a notice of deficiency had not been issued for those years. Petitioners did not testify at trial that they did not receive notices of deficiency. Nonetheless, because the administrative record did not state that the Appeals Office had verified that notices of deficiency were sent, we remanded the case for the Appeals Office to clarify the recоrd. In our prior Opinion, we stated:
The record before us is unclear as to whether a notice of deficiency was sent to petitioners for their 1986, 1988, and 1989 tax years. We have held that a verification generally is proper if the Appeals officer relied on a Form 4340, Certificate of Assessments, Payments, and Other Specified Matters, or a transcript containing similar information. Nestor v. Commissioner, 118 T.C. 162 (2002). There is no mention of a Form 4340 in the record. Moreover, the original assessment dates in the early 1990s covered petitioners’ 1986, 1988, and 1989 tax years; however, the transcript provided covers only petitioners’ tax years 2000 and forward. We therefore remand the instant case to
respondent‘s Appeals Office to clarify the record as to whether a notice of deficiency wаs sent to petitioners for each of the 1986, 1988, and 1989 tax years.
Jordan v. Commissioner, supra at 12-13.
On remand, respondent‘s Appeals Office placed in the administrative file certified copies of Forms 4340, Certificate of Assessments, Payments, and Other Specified Matters, for each of pеtitioners’ 1986, 1988, and 1989 tax years, each dated February 4, 2010. Although the Forms 4340 do not state that a notice of deficiency was mailed to petitioners, the Forms 4340 each contain an entry stating: “additional tax assessed by examination audit deficiency per default оf 90 day letter.” Petitioners signed a consent to extend the time to assess tax for their 1986 tax year on December 5, 1990. The assessment for petitioners’ 1986 tax year was made on June 1, 1992, and the assessments for petitioners’ 1988 and 1989 tax years were made on April 26, 1993.
In addition tо the Forms 4340, the Appeals Office placed in the administrative file copies of the notices of deficiency. The notice of deficiency for petitioners’ 1986 tax year is stamped with the date December 6, 1991. The notice of deficiency for рetitioners’ 1988 and 1989 tax years is stamped with the date October 28, 1992. Both notices of deficiency are addressed to petitioners’ last known address, which is the same address petitioners used when they filed their petition in this Court.
Discussion
Rule 121(a) allows a party to move “for a summary adjudication in the moving party‘s favor upon all or any рart of the legal issues in controversy.” Rule 121(b) directs that a decision on such a motion shall be rendered “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” In the instant case, the parties have made cross-motions for summary judgment, and each party contends that there are no genuine issues of material fact and that the party is entitled to summary judgment as a matter of law.
Generally, the Commissioner is not entitled to collect a tax by administrative means until it has been formally and timely assessed. When the taxpayer files a return, the Commissioner may summarily assess the amount shown on the return without issuing a notice of deficiency.
When we review an Appeals Office determination under
The act of mailing the notice of deficiency generally is proven by evidence of the Commissioner‘s mailing practices corroborated by direct testimony or dоcumentary evidence of mailing. Coleman v. Commissioner, 94 T.C. 82, 90 (1990); Magazine v. Commissioner, 89 T.C. 321 (1987). A Postal Service Form 3877 reflecting Postal Service receipt represents direct documentary evidence of the date and the fact of mailing and also shows compliance with established Internal Revenue Sеrvice (IRS) procedures for mailing notices of deficiency. Coleman v. Commissioner, supra at 90; Magazine v. Commissioner, supra at 324, 327. Exact compliance with Postal Service Form 3877 mailing procedures raises a presumption of official regularity in favor
Respondent contends that the certified mailing lists related to petitioners’ tax years 1986, 1988, and 1989 were destroyed after 10 years pursuant to IRS procedures for document retention. Because respondent does not have the certified mailing lists in his possession, he contends that the Appeals Office should be allоwed to rely on Forms 4340 to verify that the notices of deficiency were mailed to petitioners.
We have held that a verification that a notice of deficiency was issued generally is proper if the Appeals Office relied on a Form 4340, unless the taxpayer demonstrates an irregularity in the assessment procedure that would raise a question about the validity of the assessments. Jordan v. Commissioner, supra at 12-13; Nestor v. Commissioner, 118 T.C. 162, 166 (2002); Davis v. Commissioner, 115 T.C. 35, 41 (2000). In Hoyle v. Commissioner, 131 T.C. at 205 n.7, we stated that “where a taxpayer alleges no notice of deficiency was mailed he has * * * ‘[identified] an irregularity‘, thereby requiring the Appeals officer to do more
When we remand a case to the Appeals Office to clarify the record as to whether a notice of deficiency was mаiled to a taxpayer, the Appeals Office is not limited to what the Appeals Office considered during the first administrative hearing. Hoyle v. Commissioner, 136 T.C. at ___ (slip op. at 10). Rather, on remand the Appeals Office is to independently verify that a notice of deficiency was properly mailed to the taxpayer. Id.
Accordingly, because petitioners did not show that there was an irregularity, we hold that Forms 4340, combined with cоpies of the notices of deficiency, may be used to verify that the notices of deficiency were mailed to petitioners’ last known address and that the tax was properly assessed.
The Forms 4340 do not contain entries stating that notices of deficiency were mailed to petitioners, but the Forms 4340 do state: “additional tax assessed by examination audit deficiency
In the instant case, the dates stamped on the copies of the notices of deficiency are more than 90 days before the assessment dates on the Forms 4340. The copies of the notices of deficiency show petitioners’ last known address. We conclude that the Forms 4340, combined with the copies of notices of deficiency, are sufficient to show that the respective notices of deficiency were timely mailed to petitioners at their last known address.
In reaching these holdings, we have considered all the parties’ arguments, and, to the extent not addressed herein, we conclude that they are moot, irrelevant, or without merit.
To reflect the foregoing,
An appropriate order and
decision will be entered.