DocketNumber: Docket No. 14378-93
Citation Numbers: 68 T.C.M. 291, 1994 Tax Ct. Memo LEXIS 377, 1994 T.C. Memo. 365
Judges: PARKER
Filed Date: 8/2/1994
Status: Non-Precedential
Modified Date: 11/21/2020
1994 Tax Ct. Memo LEXIS 377">*377 An appropriate order of dismissal for lack of jurisdiction will be entered.
MEMORANDUM FINDINGS OF FACT AND OPINION
PARKER,
Respondent determined a deficiency in petitioner's Federal income tax for the year 1988 in the amount of $ 14,157 and additions to tax under section 6653(a)(1)(A) in the amount of $ 708, under section 6651(a) in the amount of $ 1,324, and under section 6661(a) in the amount of $ 3,309.
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the pertinent years before the Court, and all Rule references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
An evidentiary hearing was held in Oklahoma City, Oklahoma, in October of 1993. Based on that evidentiary hearing and the parties' stipulations1994 Tax Ct. Memo LEXIS 377">*378 of fact and the exhibits attached thereto, the facts are found as follows:
Petitioner Ollie B. Adams resided in Garden City, Kansas, at the time the petition was filed in this case. Petitioner filed his Federal income tax return for 1988 on November 22, 1989, showing an address of 109 Beard, Dumas, Texas 79029. Petitioner's 1989 Federal income tax return showed the same address except that the number was listed as 10
The Melody Lane address in Ardmore, Oklahoma, was a five-bedroom house that was rented by petitioner's son, Anthony Quinn Adams (Quinn). That house was rented for 6 months for the period from November 1, 1990, through April 30, 1991. Petitioner and Quinn were truck drivers, owned several trucks, and conducted business under the name of Adams Trucking. The Melody Lane address was printed on the checks for Adams Trucking.
Petitioner moved from the Melody Lane address in March or very early April of 1991, 1994 Tax Ct. Memo LEXIS 377">*379 moving to an address at 102 Elm Ave., Dumas, Texas 79029. Petitioner did not notify respondent, in any manner, that he had moved or that he had a new address. Quinn filled out a change of address card with the U.S. Postal Service in Ardmore, Oklahoma, with a forwarding address for the Adams family of 102 Elm Ave., Dumas, Texas 79029. In early April of 1991, the Postal Service forwarded at least three pieces of mail to petitioner at the Dumas, Texas, address pursuant to that forwarding order.
On June 7, 1991, respondent sent a letter to petitioner at the Melody Lane address. The letter concerned the audit of petitioner's 1988 income tax return and requested information about certain omitted items of income. 1 Petitioner did not respond to the letter and did not discuss the audit of his 1988 income tax return with respondent at any time prior to the issuance of the notice of deficiency.
1994 Tax Ct. Memo LEXIS 377">*380 Sometime in September or early October of 1991, petitioner moved from the 102 Elm Ave., Dumas, Texas 79029 address to Garden City, Kansas. Petitioner did not notify respondent of that new address, and the record does not show whether or not he filled out a change of address card with the U.S. Postal Service in Dumas, Texas, for a forwarding order to the new address in Garden City, Kansas. See
On December 12, 1991, respondent sent, by certified mail, a notice of deficiency to petitioner at the Melody Lane address. When respondent mailed the December 12, 1991, notice of deficiency, the Melody Lane address was petitioner's "last known address" within the meaning of
In April of 1991, there was a change of address card (a forwarding order) on file with the U.S. Postal Service in Ardmore, Oklahoma, for the Adams family, whereby mail was being forwarded to 102 Elm Ave., Dumas, Texas 79029. A change of address card is usually in effect for 1 year, and after that 1-year period the U.S. Postal Service will, for an additional 6 months, return the mail to the sender but will note the new address on the envelope. 3 The forwarding order on file with the U.S. Postal1994 Tax Ct. Memo LEXIS 377">*382 Service in Ardmore, Oklahoma, should have been effective in December of 1991, when the notice of deficiency was mailed to petitioner, and should have resulted in the notice's being forwarded to the Dumas, Texas, address. The U.S. Postal Service made a mistake when it failed to forward the notice of deficiency to the Dumas, Texas, address and returned it instead to respondent with the notation "FOE". 4
1994 Tax Ct. Memo LEXIS 377">*383 Upon return of the undelivered notice of deficiency, respondent's agent searched the Internal Revenue Service (IRS) computer records for other possible addresses. This search confirmed petitioner's last known address to be the Melody Lane address in Ardmore, Oklahoma, the address shown on petitioner's then most recently filed return, the 1990 return filed in March of 1991. Respondent did not remail the notice of deficiency to petitioner. On May 11, 1992, respondent assessed the deficiency in income tax and the additions to tax for 1988. On July 6, 1993, petitioner filed his petition in this Court and filed his motion to restrain assessment and collection.
On August 9, 1993, respondent filed the present motion to dismiss for lack of jurisdiction. On September 7, 1993, petitioner filed an objection thereto. Petitioner has been afforded an evidentiary hearing in regard to the facts and circumstances surrounding respondent's mailing of the notice of deficiency and the U.S. Postal Service's handling of the same. The Court also afforded the parties an opportunity to supplement the record after the hearing and to file opening and reply briefs.
OPINION
This Court has jurisdiction1994 Tax Ct. Memo LEXIS 377">*384 in a deficiency case only if there has been a validly issued statutory notice of deficiency and a timely filed petition.
1994 Tax Ct. Memo LEXIS 377">*385 To constitute a validly issued notice of deficiency, respondent must send the notice by certified or registered mail and must duly deposit it with the U.S. Postal Service.
There is no dispute in this case that the notice of deficiency was mailed to petitioner's last known address. See
Respondent must exercise reasonable care and due diligence in ascertaining the taxpayer's correct address, but she is entitled to rely on the address appearing on the taxpayer's latest tax return absent clear and concise notification from the taxpayer of a different address. Under
The United States Court of Appeals for the Tenth Circuit, to which any appeal in this case would lie, recently stated in
1994 Tax Ct. Memo LEXIS 377">*390 Despite the fact that the evidence shows, and respondent admits, that the U.S. Postal Service made a mistake in not forwarding the notice to the Dumas, Texas, address, there is no relief for petitioner under the case law or the statutory language of
A notice of deficiency that is mailed in conformity with
1994 Tax Ct. Memo LEXIS 377">*392 To reflect the foregoing,
1. Petitioner claims that he never received that letter, but the Court is satisfied that he knew something about his 1988 tax problem by late 1991 or early 1992. He knew that the refunds claimed on his 1989 and 1990 returns had been held up because of his tax problem, and he learned that sometime after moving from Dumas, Texas, to Garden City, Kansas, in September or early October of 1991.↩
2. The parties have so stipulated and agreed. While such a stipulation could be viewed as a legal conclusion which the Court could disregard, the facts of record amply support the stipulation. The Melody Lane address was the address shown on petitioner's then most recently filed return (the 1990 return filed in March of 1991); it was the latest address shown in the IRS computer files; petitioner had not notified the IRS of any different address.↩
3. The postmaster of Ardmore, Oklahoma, testified at the hearing that a change of address card is good for 1 year and that, at the end of the 1 year, the Postal Service will return mail to the sender with the correct address noted on it and stamp the article "Forwarding Order Expired, Moved, Not Forwardable". There is then a subsequent period of time during which the Postal Service will return mail marked as no forwarding order. After 18 to 24 months, the records are expunged, and no record of the change of address remains. By the time of the hearing in this case, the pertinent change-of-address records for 1991 had been destroyed.↩
4. We do not speculate as to what might have occurred had the notice of deficiency reached the U.S. Postal Service in Dumas, Texas, since petitioner was actually living in Garden City, Kansas, by that time. Neither party has addressed, in requested findings or on brief, petitioner's move in September or early October of 1991 to Garden City, Kansas. This is probably due to the fact that petitioner kept changing his argument as to exactly when he resided at the Melody Lane address, and the documentary evidence that finally established that period of residence was submitted to the Court after the hearing, the Court having kept the record open for that purpose. While the testimony of both petitioner and Quinn was quite vague as to dates and whether the events happened in 1990, 1991, or 1992, the sequence and duration of petitioner's moves were clear. Also the rental agreement and the canceled rent checks clearly fixed the Melody Lane rental period as November 1990 to April 30, 1991. Thus petitioner's odyssey was as follows: He lived in Garden City, Kansas, where he owned a house that he retained throughout the subsequent periods; he moved to Dumas, Texas (109 or 1009 Beard); from November 1990 through March or April 1991, he lived with Quinn at the Melody Lane house in Ardmore, Oklahoma; petitioner then moved back to Dumas, Texas (102 Elm Ave.), where he lived for 6 months, which would bring him up to September or early October of 1991; he then moved back to his house in Garden City, Kansas, where he still lived at the time of the hearing. Both parties have ignored this subsequent move back to Garden City, Kansas, and the Court will do the same, since the outcome of the case will be unchanged.↩
5. Although petitioner has not cross moved for dismissal on that basis, an invalid notice of deficiency would also result in a dismissal for lack of jurisdiction but with a different legal result from that of an untimely petition.
6. Ignoring this fact and the case law in the Tenth Circuit, petitioner relies instead upon
7. Petitioner is not left without any legal remedy. After full payment of the amount due, he may file a claim for refund with the IRS. If the claim is denied or the IRS fails to take action within 6 months, petitioner may timely file an action for refund with the United States District Court or the United States Court of Federal Claims.
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