1987 U.S. Tax Ct. LEXIS 146 | Tax Ct. | 1987
Lead Opinion
OPINION
This case was heard by Special Trial Judge Peter J. Panuthos pursuant to the provisions of section 7456 of the Code.
OPINION OF THE SPECIAL TRIAL JUDGE
This case is before the Court on respondent’s motion to dismiss for lack of jurisdiction. We must determine whether the notice of deficiency was mailed to petitioner at his “last known address” within the meaning of section 6212(b). If so, we must also determine whether an error by respondent in addressing the notice of deficiency resulted in the notice’s not being delivered to petitioner’s last known address.
By notice of deficiency, dated April 10, 1984, respondent determined a deficiency for the taxable year 1980 in the amount of $3,320. Duplicate originals of the notice of deficiency were sent to petitioner by registered mail on April 10, 1984, to 8324 Apartado 1789, Caracas 1010, Venezuela (the address shown on petitioner’s 1981 and 1982 returns), and 240 Logan Street, Bedford, Ohio 44146 (the address shown on petitioner’s 1980 return). The petition was filed July 21, 1986, which date is more than 2 years after the issuance of the notice of deficiency.
Petitioner alleges that the notice of deficiency was not sent to his last known address. He argues that his address in Caracas, Venezuela, was “Apartado 1789” rather than “8324 Apartado 1789.”
Section 6213(a) provides that a petition must be filed within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is issued. The petition in this case was not timely filed. However, it is well settled that to maintain an action in this Court, there must be a valid notice of deficiency and a timely petition. See Pyo v. Commissioner, 83 T.C. 626, 632 (1984); Mollet v. Commissioner, 82 T.C. 618, 623 (1984), affd. without published opinion 757 F.2d 286 (11th Cir. 1985); Keeton v. Commissioner, 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. Sec. 6212(a) and (b)(1).
As a general matter, respondent 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, 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 convincing evidence of notice of a change of address. Weinroth v. Commissioner, 74 T.C. 430, 436-437 (1980); Budlong v. Commissioner, 58 T.C. 850, 852-853 (1972). However, for the purposes of this matter, we follow the holdings of the Ninth Circuit
Petitioner alleges that his 1983 return, showing the Van Nuys, California, address, ivas filed on March 23, 1984, prior to the issuance of the notice of deficiency. Thus, petitioner contends that the 1983 return gave respondent notice of a new address.
In response to the Court’s order, dated August 4, 1987, respondent submitted additional documentation to establish the date petitioner’s 1983 return was received by respondent. These documents establish that the 1983 return was received at the Fresno Service Center on or about April 6, 1984.
The date upon which respondent has notice of information shown on a return is generally the date the information is posted to respondent’s computer records, rather than the date the return is received by respondent. Soria v. Commissioner, T.C. Memo. 1986-206; Singer v. Commissioner, T.C. Memo. 1986-193.
We next turn to petitioner’s argument that the addition of “8324” to the Caracas, Venezuela, address was the reason he did not receive the notice. It appears that petitioner resided in Caracas, Venezuela, from August 1981 to May 1983. He filed his 1981 and 1982 Federal income tax returns showing as his address “Apartado 1789, Caracas 1010, Venezuela.” During the time petitioner resided in Venezuela he was employed by the accounting firm of Price, Waterhouse & Co. or its affiliate in Caracas, Venezuela, the firm of Espineira, Sheldon y Associados. An affidavit of a postal official in Caracas, Venezuela, submitted by respondent in support of his motion shows that Apartado 1789 is a post office box held by Espineira, Sheldon y Associados.
Thus, it is clear that the notice of deficiency was delivered to petitioner’s last known address. It is well settled that a notice of deficiency mailed to a taxpayer’s last known address is valid even though the taxpayer does not receive it. DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967); Alta Sierra Vista, Inc. v. Commissioner, supra at 373; Brzezinski v. Commissioner, 23 T.C. 192, 195 (1954). Further, we have held that inconsequential errors in addressing a notice of deficiency do not destroy its validity. Clodfelter v. Commissioner, 57 T.C. 102, 107 (1971), affd. 527 F.2d 754, 756 (9th Cir. 1975); Estate of McElroy v. Commissioner, 82 T.C. 509, 514 n. 4 (1984). Clearly, the notice got to the address to which it was intended without apparent delay.
We conclude that respondent has complied with the requirements of section 6212(b)(1) in mailing the notice of deficiency to petitioner’s last known address. Accordingly, respondent’s motion to dismiss for lack of jurisdiction will be granted.
An appropriate order will be entered.
This case was heard pursuant to sec. 7456 (redesignated as sec. 7443A by the Tax Reform Act of 1986, Pub. L. 99-514, sec. 1556, 100 Stat. 2755) and Rule 180, All section references are to the Internal Revenue Code of 1954 as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
At the time of filing the petition herein, petitioner resided at Van Nuys, California,
It is clear that petitioner’s last known address is not at Bedford, Ohio. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).
Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).
The Mar. 23, 1984, date of filing claimed by petitioner is apparently the date petitioner signed his 1983 return.
According to an affidavit of an agent of respondent, the Philadelphia Service Center processes all returns that include Form 2555.
Respondent sent letters dated Apr. 6 and Apr. 9, 1984, to the California address shown on petitioner’s 1983 return. The letters advised petitioner that the duplicate 1983 returns he sent were being forwarded to the Philadelphia Service Center. Petitioner argues that the fact that the 1983 return was received by the Fresno Service Center, and the fact that respondent corresponded with petitioner at the address shown on the return, demonstrates that respondent had notice of his new address. We do not believe that the form letters sent by the Fresno Service Center, which were merely sent to the address shown on the 1983 returns, create knowledge on the part of respondent’s Washington, D.C., District Office (the Office which issued the notice of deficiency), that petitioner had relocated. Cf. United States v. Zolla, 724 F.2d 808, 810-811 (9th Cir. 1984) (held that knowledge of a new address for the taxpayers gained by the collection agents should not necessarily be imputed to the audit agents who issued the notice of deficiency, even though in the same District Office).
The affidavit of Freddy Torres, Postmaster, Carmelitas Post Office, Caracas, Venezuela, was sworn to before Linda S. Recht, Vice Consul of the United States of America at Caracas.
Petitioner also appears to argue that the tax was asse. -ed after the expiration of the period of limitations. We have already held that the petition was untimely. Since we have jurisdiction only if a valid statutory notice of deficiency is issued and a timely petition is filed, we are without jurisdiction to decide whether the tax was assessed after the expiration of the period of limitation. See King v. Commissioner, 88 T.C. 1042 (1987).
