McWhinney v. Commissioner

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN C. McWHINNEY; CONNIE No. 16-72590
PEDERSEN,
Tax Ct. No. 19464-15
Petitioners-Appellants,
v. MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Sean C. McWhinney and Connie Pedersen (“taxpayers”) appeal from the
Tax Court’s order dismissing for lack of subject matter jurisdiction their petition
for redetermination challenging the notice of deficiency for the tax years 2011 and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2012. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the
Tax Court’s dismissal for lack of subject matter jurisdiction, Gorospe v. Comm’r,
451 F.3d 966, 968 (9th Cir. 2006), and we affirm.
The Tax Court properly dismissed taxpayers’ petition for lack of subject
matter jurisdiction because taxpayers failed to file their petition within ninety days
from the mailing of the notice of deficiency. See 26 U.S.C. § 6213(a) (petition for
redetermination must be filed “[w]ithin 90 days . . . after the notice of deficiency
. . . is mailed”); Correia v. Comm’r, 58 F.3d 468, 469 (9th Cir. 1995) (“The timely
filing of a petition for redetermination is a jurisdictional requirement.”).
Contrary to taxpayers’ contention, the notice of deficiency was valid because
it was sent to taxpayers’ last known address. See 26 U.S.C. § 6212(b)(1); Williams
v. Comm’r, 935 F.2d 1066, 1067 (9th Cir. 1991) (“A notice of deficiency is valid if
it is mailed to the taxpayer’s last known address even if it is not received by the
taxpayer.”); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984)
(explaining that the last known address is the one “on [the taxpayer’s] most recent
return, unless the taxpayer communicates to the IRS clear and concise notice of a
change of address”). We reject as without merit taxpayers’ contentions that the
notice of deficiency was not valid because it was not mailed to their power of
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attorney, and that the issuance of the deficiency notice deprived taxpayers of their
day in court.
AFFIRMED.
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