DocketNumber： Docket No. 4038-69
Filed Date： 3/26/1970
Status： Precedential
Modified Date： 11/14/2024
1970 U.S. Tax Ct. LEXIS 177">*177
2. The fact that two unidentified employees of the Internal Revenue Service told petitioner Jules Cowan that he had until Aug. 6, 1969, to file a petition with this Court seeking a redetermination of taxes determined in a notice of deficiency mailed to him on May 7, 1969, does not in effect constitute a remailing of the notice on May 8, 1969.
3. Since the petition was filed with the Court on the 93d day and mailed to the Court in an envelope postmarked on the 91st day after the date of the mailing by certified mail of the notice of deficiency to each petitioner, it is dismissed for lack of jurisdiction as to both petitioners.
54 T.C. 647">*648 On September 19, 1969, respondent filed a motion to dismiss the petition in this case for lack of jurisdiction on the ground that the petition was not filed within 90 days after the mailing on May 7, 1969, of the notice of deficiency which determined deficiencies in petitioners' income tax and additions to tax for the calendar years 1960 through 1964. On September 24, 1969, this Court entered an order to the effect that the case would be dismissed for lack of jurisdiction unless petitioners on or before October 24, 1969, filed written objection to respondent's motion. On October 24, 1969, this Court received a document captioned in the names of "Jules Cowan and Yetta Cowan" entitled "Objection to Motion to Dismiss" and signed by "Counsel for Petitioner," which document was filed on October 27, 1969, upon receipt of the entry of appearance of the counsel signing the document.
By order of this Court respondent's motion was calendared for hearing at the trial session of this Court in Los Angeles, Calif., commencing on January 26, 1970. At the hearing held on January 28, 1970, in Los Angeles, Calif., respondent offered the documentary evidence which had been1970 U.S. Tax Ct. LEXIS 177">*180 attached to his motion to establish that on May 7, 1969, he mailed by certified mail a statutory notice of deficiency to petitioner Jules Cowan at 10610 Magnolia Boulevard, North Hollywood, Calif. 91601, and mailed a statutory notice of deficiency to petitioner Yetta Cowan at 6444 Fair Avenue, North Hollywood, Calif. 91601. The application for registration or certification, U.S. Post Office Form 3877, offered by respondent bore a handwritten notation "3 P. M" underneath the signature on behalf of the postmaster.
Petitioner Jules Cowan contends that under the provisions of
FINDINGS OF FACT
On approximately May 1, 1969, Jules Cowan and his present wife, Marjorie Cowan, went on a vacation trip to Oceanside, Calif., 54 T.C. 647">*649 which is about 40 miles north of San Diego. On the morning of May 7, 1969, Jules and Marjorie Cowan drove from Oceanside, Calif., to San Diego where Marjorie Cowan's daughter-in-law, Noralee Knight, joined them in order to accompany them to Tijuana, Mexico. Jules and Marjorie Cowan and Noralee Knight then drove from San Diego to Tijuana, Mexico, entering Mexico somewhere around 9 a.m. on May 7, 1969. They remained in Mexico until approximately 7:30 or 8 p.m. on May 7, 1969. After returning from Mexico on May 7, 1969, Jules and Marjorie Cowan returned to Oceanside, Calif. where they remained until May 11, 1969.
When petitioner Jules Cowan returned to his office in North Hollywood, Calif., on May 12, he found the notice of deficiency determining deficiencies in income taxes and additions to tax for the calendar years 1960 through 1964 which bore the date of May 7, 1969, and which had been mailed to him at the North Hollywood address on May 7, 1969.
1970 U.S. Tax Ct. LEXIS 177">*182 The notice of deficiency was addressed, "Mr. Jules Cowan and Mrs. Yetta Cowan, 10610 Magnolia Boulevard, North Hollywood, California 91601." The notation "Certified Mail" appeared at the top of the notice and the following statement was included therein:
the deficiency or deficiencies will be assessed for collection, as required by law, upon the expiration of 90 days (150 days if you are outside the States of the Union and the District of Columbia) from the date of this letter, unless within that time you contest this determination in the Tax Court of the United States by filing a petition with that Court in accordance with its rules. * * *
A petition seeking a redetermination of the deficiencies for each of the years 1960, 1961, 1962, 1963, and 1964 as determined in the notice dated May 7, 1969, was filed in this Court on August 8, 1969, in the names of Jules Cowan and Yetta Cowan. The petition was signed and verified by both Jules Cowan and Yetta Cowan and was mailed in an envelope which bore a postmark, "Aug. 6, 1969 Burbank, California." Yetta Cowan was the wife of Jules Cowan during the years 1960 through 1964.
A little after 8 a.m. on May 12, 1969, Jules Cowan telephoned1970 U.S. Tax Ct. LEXIS 177">*183 the Internal Revenue Service and told the person who answered the telephone that he had gone to Mexico on May 7, 1969, leaving in the morning and returning in the evening, that the letter dated May 7, 1969, had been received in his office on May 8 and had been received by him on May 12, upon his return to his office from his vacation. He then asked when he would have to file "a responsive document" to the notice of deficiency. The unidentified individual whom petitioner had reached by telephone answered that he had until August 6.
54 T.C. 647">*650 On May 19, 1969, Jules Cowan went into the offices of the Internal Revenue Service in order to obtain some forms for use of some of his clients in his accounting business. After picking up the forms, petitioner Jules Cowan noticed that there was no one in line where the "agents" were. He walked over to the counter and showed a woman there the notice of deficiency dated May 7, 1969, which he had received, told her he had been in Mexico from some time in the morning until the early evening of May 7, 1969, and asked her what was "the last final date" on which he was "supposed to answer this." The woman employee left the counter and went into another1970 U.S. Tax Ct. LEXIS 177">*184 room. In a few moments she came back to the counter and said to petitioner Jules Cowan, "August 6 is the date that you could file the answer."
OPINION
Respondent takes the position that under the provisions of
The deficiency notice clearly informed petitioner that he had 90 days, or if out of the United States 150 days, within which to file a petition to this Court. The fact that two Internal Revenue Service employees may have computed 90 days from May 7, 1969, to be 54 T.C. 647">*651 August 6, 1969, and not August 5, 1969, in no way serves to extend the time petitioner had for filing the petition.
1970 U.S. Tax Ct. LEXIS 177">*187 The more difficult question here is whether the time within which the petition was required to be filed was 90 or 150 days. Respondent contends that since there is no showing that Yetta Cowan was outside of the United States on May 7, 1969, the petition should be dismissed as to her in any event. Petitioner, Jules Cowan, who was the only petitioner appearing at the trial, makes no contention to the contrary but in effect agrees that the petition should be dismissed as to Yetta Cowan. Petitioner Jules Cowan, however, contends that under our holding in
The underlying reason for granting the 150-day period for persons outside of the United States to file a petition with this Court was stated by the Court of Appeals in
Whatever the reason for the taxpayer's absence from the country receipt of the deficiency notice was likely to be delayed if he was not physically present at the address to which the notice was sent; hence, he was given additional time to apply for review of the deficiency. We think the fact of "residence" abroad irrelevant.
This reasoning would have no application to a person who merely went across the border into Mexico for part of 1 day. We therefore1970 U.S. Tax Ct. LEXIS 177">*189 conclude that the deficiency notice in this case was not addressed "to a person outside of the States of the Union and the District of Columbia" within the meaning of
Petitioner Jules Cowan contends that grave inequity would be done to him if his petition is dismissed and he is forced to pay the substantial tax and additions to tax under sections 6651(a) and 6653(a) which total approximately $ 13,500, as determined in the notice of deficiency together with interest thereon, prior to being able to litigate the merits of the determination. Whatever hardship may result to petitioner Jules Cowan from having to pay the determined amount cannot operate to enlarge the jurisdiction of this Court.
1. All references are to the Internal Revenue Code of 1954.↩
2.
(a) Time for Filing Petition and Restriction on Assessment. -- Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.↩
3. Petitioner's actual testimony with respect to the telephone conversation with the unidentified person who answered the telephone when he called the Internal Revenue Service was that the person stated to him, after he told her that he had been in Mexico on May 7, 1969, that "if you are out of the Republic of -- out of the United States and in the Republic of Mexico, you have one extra day to answer." We did not in making our findings include a finding that this statement was made to petitioner since we did not believe petitioner's recollection in regard to the words used to be correct. We found, as petitioner stated at another point, that the voice stated to petitioner that he had until August 6. However, if petitioner's recollection of the exact words of the employee was correct, our opinion would not be changed. The letter clearly informed petitioner of the time allowed for filing a petition and even if it had not, petitioner could have ascertained the time from the statute.↩