Bedrosian v. Commissioner , 358 F. App'x 868 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 02 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOHN C. BEDROSIAN; et al., Nos. 08-70508, 08-70548,
08-70809
Petitioners - Appellants,
Tax Ct. Nos. 24581-06, 9664-07,
v. 12341-05
COMMISSIONER OF INTERNAL
REVENUE, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States Tax Court
Juan F. Vasquez, Judge, Presiding
Argued and Submitted October 7, 2009
Pasadena, California
Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.
Petitioners-Appellants John and Judith Bedrosian appeal three orders of the
Tax Court dismissing in whole or in part their challenges to three different notices
relating to the same underlying adjustments for the tax years 1999 and 2000. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction over two of these appeals under 26 U.S.C. § 7482(a)(1). We
affirm in part and dismiss in part.
In the first appeal, the Bedrosians challenge a notice of final partnership
administrative adjustment (FPAA) that the IRS mailed on April 8, 2005, pursuant
to 26 U.S.C. § 6223(a)(2). The FPAA asserted adjustments to the 1999 tax return
of Stone Canyon Partners, a short-lived partnership formed by two companies of
which the Bedrosians are the sole owners. The FPAA invalidated transactions
between the closely held companies and the partnership, disallowed a loss claimed
by the partnership, and imposed an accuracy-related penalty. The Bedrosians filed
a petition for readjustment of the FPAA in the Tax Court on May 1, 2007, more
than 90 days after the FPAA was mailed. See 26 U.S.C. § 6226(a). Because we
determine that the IRS validly mailed the FPAA to the Bedrosians, we affirm the
Tax Court’s dismissal for lack of jurisdiction of their untimely petition.
The IRS mailed fourteen copies of the FPAA on April 8, 2005, to three
different addresses, including the same address provided for all three entities on the
Partnership’s tax return. The IRS did not mail the FPAA to the Bedrosians’
personal residence, which it had on file, because the Bedrosians’ accountant, who
had their power of attorney, asked the IRS not to use that address, citing security
concerns. The Bedrosians assert that they did not receive the FPAA at any address.
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We find it unnecessary to decide whether constitutional due process requires
the IRS to mail an FPAA to the “last known address” of a tax matters partner
despite the absence of any such requirement in the Code. The address provided by
the Bedrosians’ accountant was the last known address, because it would have
qualified as “clear and concise notification” of a changed address if the last-
known-address standard that applies to a notice of deficiency governed here. See
26 C.F.R. § 301.6212-2; Rev. Proc. 2001-18 §§ 3.03, 5.04-05.
The Tax Court correctly found that the power of attorney permitted the
accountant to change the Bedrosians’ own address for purposes of partnership-
related notices. The direct relationship between the Bedrosians’ tax returns and
those of the partnership makes the accountant’s communication of the Bedrosians’
address for partnership purposes relevant to her representation of the Bedrosians as
individual taxpayers. See England v. Lines, 262 F.2d 303, 305 (9th Cir. 1958)
(“The rule of construction which generally determines the scope of an agent’s
implied powers is that an agent has, ‘unless otherwise agreed, authority to do acts
which . . . are reasonably necessary to accomplish (the purpose of the agency).’”)
(quoting Restatement of Agency § 35). Moreover, the Bedrosians were indirect
partners by virtue of their undivided ownership interest in the pass-thru partner
companies. Therefore, the IRS was entitled to use “information furnished . . . by
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any other person” to establish their “name, address, and profits interest” and even
to use it “in lieu of the names, addresses, and profits interests of the pass-thru
partners.” 26 U.S.C. § 6223(c)(2), (3) (emphasis added); see also 26 C.F.R. §
301.6223(c)-1T(f) (2000).
The Bedrosians also appeal from the Tax Court’s partial dismissal of a case
involving a notice of deficiency for their 1999 and 2000 tax years that the IRS
issued on April 19, 2005, eleven days after the IRS mailed the FPAA. Because the
Tax Court only dismissed the case in part, retaining jurisdiction over the
Bedrosians’ claimed deduction for legal, accounting, consulting, and advisory fees
related to the partnership, there is no final judgment as to all claims, and we
dismiss the appeal for lack of jurisdiction. See Brookes v. Comm’r, 163 F.3d 1124,
1126 (9th Cir. 1998).
Finally, the Bedrosians appeal the Tax Court’s dismissal for lack of
jurisdiction of their petition on an affected item notice of deficiency that the IRS
issued on September 5, 2006, pursuant to 26 U.S.C. 6230(a)(2)(A)(i) after the
expiration of the 150-day window for filing a petition for readjustment in the
partnership proceeding. See 26 U.S.C. § 6226(b). The Tax Court properly
dismissed the petition because the 2006 affected item notice of deficiency was
issued after the Bedrosians remitted, and the IRS assessed, pursuant to 26 U.S.C. §
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6213(b)(4), the full amount of the deficiency asserted therein. The Bedrosians did
not designate their remittance as a deposit, which would have prevented its
assessment. See 26 U.S.C. § 6603(a); Rev. Proc. 2005-18 § 4.01. They argue that
their undesignated remittance should be treated as a deposit rather than an
assessable payment nonetheless, because they remitted “after the mailing of a
notice of deficiency”—in this case, the 2005 notice of deficiency. 26 U.S.C. §
6213(b)(4). “Such payment shall not deprive the Tax Court of jurisdiction over
such deficiency.” Id. (emphasis added). But both parties concede that the 2005
notice of deficiency was invalid because it was issued while partnership
proceedings were pending. No assessment could possibly deprive the Tax Court of
jurisdiction over that particular deficiency, because the Tax Court never had
jurisdiction over “such deficiency” in the first place. The 2006 affected item notice
of deficiency, by contrast, properly asserted deficiencies on affected items after the
FPAA became final. The Bedrosians’ remittance was properly assessed before the
issuance of the 2006 affected item notice of deficiency, so the Tax Court did not
err in dismissing the case for lack of jurisdiction.
AFFIRMED in 08-70508 and 08-70548; DISMISSED for lack of
jurisdiction in 08-70809.
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