DocketNumber: No. 13223-98
Citation Numbers: 2000 T.C. Memo. 115, 79 T.C.M. 1798, 2000 Tax Ct. Memo LEXIS 132
Filed Date: 3/31/2000
Status: Non-Precedential
Modified Date: 4/18/2021
2000 Tax Ct. Memo LEXIS 132">*132 Respondent's motion to dismiss will be granted, and an appropriate order will be entered dismissing the instant case for lack of jurisdiction.
R sent a notice of deficiency for 1995 to Ps. This notice
of deficiency was mailed to the address used by Ps on their 1996
tax return, the last tax return Ps filed before the notice of
deficiency was issued, except that R placed three additional
digits at the end of the otherwise-correct ZIP Code. Ps did not
receive this notice of deficiency. About 7 months later, Ps
received a copy of this notice of deficiency from R's Taxpayer
Advocate.
HELD: Based on the evidence, the three additional digits on
the end of the ZIP Code in the address used to mail the notice
of deficiency did not affect the postal processing of the notice
of deficiency and, as a result, did not render the address
something other than Ps' last known address. Ps' petition was
not timely filed, and R's motion to dismiss is granted. See
MEMORANDUM FINDINGS OF FACT AND OPINION
CHABOT, JUDGE: This matter is before us on respondent's motion to dismiss the instant case for lack of jurisdiction because the petition was not filed within the time prescribed by
Respondent determined a deficiency in Federal individual income tax against petitioners for 1995 in the amount of $ 2,821.
The primary issue for decision is whether respondent's use of three additional digits at the end of petitioners' nine-digit ZIP Code in the address for the notice of deficiency effectively resulted in the notice of deficiency's2000 Tax Ct. Memo LEXIS 132">*134 not having being mailed to petitioners' last known address, within the meaning of
Argument on the motion and an evidentiary hearing were held at a trial session of the Court in Las Vegas, Nevada. In addition to the motion papers and a transcript of the proceedings, the record includes a stipulation of facts, exhibits, and posthearing memoranda.
FINDINGS OF FACT
Some of the facts have been stipulated; the stipulations and the stipulated exhibits are incorporated herein by this reference.
When the petition was filed in the instant case, petitioners resided in Henderson, Nevada.
On October 22, 1997, respondent issued a notice of deficiency to petitioners for 1995. This notice of deficiency was sent by certified mail to petitioners at "25521 La Mirada, Laguna Hills, Ca. 92653-5316217." This address is hereinafter sometimes referred to as the 12-digit ZIP Code address.
On October 22, 1997, and until June 29, 1998, when petitioners moved to Henderson, Nevada, their street address was 25521 La Mirada, Laguna Hills, California 92653-5316. This address is hereinafter sometimes referred to as petitioners' correct address, or as the 9- digit ZIP Code address. The only2000 Tax Ct. Memo LEXIS 132">*135 difference between the two addresses is the addition of the digits "217" to the end of the ZIP Code on the 9-digit ZIP Code address. The 9-digit ZIP Code address appears on petitioners' 1996 tax return, which was filed on April 15, 1997. The 1996 tax return was the last tax return petitioners filed before respondent issued the notice of deficiency for 1995.
Petitioners did not receive the certified mail notice of deficiency, nor was the certified mail notice of deficiency returned to respondent. The U.S. Postal Service (hereinafter sometimes referred to as the USPS) does not have any record of delivery, nor does it have any record of article returned for a certified letter mailed by respondent on October 22, 1997, to petitioners' correct address.
On or before June 29, 1997, petitioners received from respondent a Form CP-2000, dated June 25, 1997, proposing a 1995 deficiency in the amount of $ 4,625, and asking petitioners to respond within 30 days. This letter was addressed to petitioners at the 12- digit ZIP Code address.
On May 17, 1998, petitioners received a letter dated May 13, 1998, from respondent's Taxpayer Advocate addressed to the 12- digit ZIP Code address. This letter2000 Tax Ct. Memo LEXIS 132">*136 included a copy of the original notice of deficiency, part of which petitioners attached to the petition filed in the instant case. This was the first time petitioners received a copy of the notice of deficiency.
The petition in the instant case was filed on July 24, 1998, which is 275 days after October 22, 1997, when the notice of deficiency was mailed. The envelope in which the petition was sent to this Court is postmarked July 22, 1998, which is 273 days after the notice of deficiency was mailed.
The correct ZIP Code for the address 25521 La Mirada, Laguna Hills, California, is not the 12-digit ZIP Code. There is no such ZIP Code as the 12-digit ZIP Code within the USPS system. The correct ZIP Code for 25521 La Mirada, Laguna Hills, California, is 92653-5316 -- the 9-digit ZIP Code address.
Mail is machine-sorted and dispatched to USPS mail carriers if the envelope has a bar code, a 5-digit ZIP Code, or a 9- digit ZIP Code. Mail is processed manually if the envelope does not have a ZIP Code, if it has a 12- or 13-digit ZIP Code, or if it is sent by certified mail. Certified mail is processed separately under an accountability system.
The use of ZIP Codes by mailers is optional.
2000 Tax Ct. Memo LEXIS 132">*137 _________________________
When the notice of deficiency was mailed to petitioners, the 9-digit ZIP Code address was petitioners' last known address.
Respondent's use of the 12-digit ZIP Code address for the notice of deficiency in the instant case did not affect the deliverability of the notice of deficiency, because that piece of mail would in any event have been processed through an accountability system because it was sent by certified mail.
The notice of deficiency was addressed to petitioners at their last known address.
OPINION
Respondent contends that this Court does not have jurisdiction of the instant case because (1) respondent mailed the notice of deficiency to petitioners' last known address and (2) the petition was not filed within 90 days after respondent so mailed the notice of deficiency. Respondent contends that the use of the 12- digit ZIP Code address did not prevent delivery of the notice of deficiency. Finally, respondent contends that, even though petitioners did not receive the notice of deficiency as mailed, "petitioners had actual oral notice that a deficiency in income tax had been proposed against them for the 1995 income tax year."
Petitioners contend2000 Tax Ct. Memo LEXIS 132">*138 they never received the notice of deficiency until, after many efforts over many months, they received a copy of the notice of deficiency attached to a letter from respondent's Taxpayer Advocate office. In their written objection to respondent's motion, petitioners ask that we hold that their petition was timely filed and that this Court has jurisdiction of their case.
In their opening statement at the evidentiary hearing on respondent's motion, petitioners contend that, because of their efforts to get a copy of the notice of deficiency and respondent's lack of cooperation, the notice of deficiency should be treated as having been mailed on May 13, 1998, the date on the letter from respondent's Taxpayer Advocate which included a copy of the notice of deficiency; under these circumstances, petitioners point out, their petition was timely filed. In addition, petitioners contend that respondent's addition of three digits to the ZIP Code of petitioners' correct address may have interfered with their receipt of the notice of deficiency.
On brief, petitioners rest primarily on the contention that this Court does not have jurisdiction because "the notice was never actually mailed to the2000 Tax Ct. Memo LEXIS 132">*139 Petitioners, and the Respondent offers no evidence that it was." Also, petitioners contend that oral notification of the notice of deficiency is insufficient to comply with
Thus, some of petitioners' contentions lead them to conclude that we do have jurisdiction of the instant case, while petitioners' other contentions lead them to conclude that we do not have jurisdiction.
We agree with respondent that we do not have jurisdiction because the notice of deficiency is valid and the petition was filed more than 90 days after notice of deficiency was mailed.
This Court's jurisdiction to redetermine a deficiency (see
Because of the Court's concern about jurisdiction, we informally raised with the parties 5 the question of whether respondent's use of a 12-digit ZIP Code might have an impact on whether respondent sent the notice of deficiency to petitioners' last known address.
A notice of deficiency serves the purpose of the statutory scheme if (1) it provides notice to the taxpayer that the Commissioner has determined a deficiency against the taxpayer, and (2) it is received by the taxpayer in time to provide an opportunity to petition this Court to redetermine the deficiency. See, e.g.,
In addition, the statute provides that the mailing of a notice of deficiency to a taxpayer's last known address, within the meaning of
In the instant case, the parties have stipulated that petitioners did not receive the notice of deficiency that was mailed on October 22, 1997. Petitioners finally received a copy of this notice of deficiency on May 17, 1998, long after the expiration of the 90-day petition period.
The parties' stipulations make2000 Tax Ct. Memo LEXIS 132">*143 it clear, and we have found, that the 9-digit ZIP Code address was petitioners' last known address. The address used by respondent for the notice of deficiency (the 12-digit ZIP Code address) differed from the last known address only in that the former included three additional digits at the end of the ZIP Code.
The unrebutted testimony of a USPS employee who has management responsibility for, and extensive experience with, the USPS's ZIP Code system makes it plain that the three additional digits at the end of the ZIP Code would not have had any effect on the deliverability of the notice of deficiency. This testimony is buttressed by the parties' stipulation of petitioners' receipt of a June 1997 letter (the CP-2000) that had been addressed to the 12- digit ZIP Code address, and the parties stipulation of petitioners' receipt of a May 1998 letter (from respondent's Taxpayer Advocate) that had been addressed to the 12-digit ZIP Code address.
Thus, although the three additional digits at the end of the ZIP Code were not properly part of petitioners' last known address, these digits did not affect the deliverability of mail to petitioners. That is, the three additional digits would2000 Tax Ct. Memo LEXIS 132">*144 not have affected the USPS's processing of mail, and mail which included the three additional digits made its way in a timely manner to petitioners' mailbox both before and after the October 22, 1997, notice of deficiency. Under these circumstances, it would be an exaltation of trivia over both form and substance to hold that the three additional digits affect the status of the notice of deficiency.
In
Accordingly, consistent with our precedents, 6 we hold, for respondent, that respondent mailed the notice of deficiency by certified mail on October 22, 1997, to petitioners at their last known address, within the meaning of
1. NOTICE OF DEFICIENCY NOT SENT
At the end of the evidentiary hearing, the Court directed the parties to file one round of briefs, respondent opening and petitioners answering. In petitioners' answering brief they raise for the first time the contention that respondent failed to demonstrate that the notice of deficiency was mailed to petitioners.
Although the parties cannot confer jurisdiction on this Court by merely stipulating or otherwise agreeing that we have jurisdiction (see
At the start of the evidentiary hearing, the parties offered, and the Court received, stipulations and stipulated exhibits, including the following:
9. On October 22, 1997, the Internal Revenue Service
located at Fresno, California issued a statutory notice of
deficiency to the petitioners for the 1995 taxable year.
10. The statutory notice of deficiency dated October 22,
1997, for the 1995 taxable year,2000 Tax Ct. Memo LEXIS 132">*146 was addressed to the
petitioners at 25521 La Mirada, Laguna Hills, Ca. 92653-
5316217. The statutory notice of deficiency was mailed by
certified mail to petitioners at the above address. Attached an
[sic] marked as Exhibit 7-J is a copy of the certified mailing
list.
11. The petitioners stipulate that their street address on
October 22, 1997, and until June 29, 1998, when they moved to
Henderson Nevada, was 25521 La Mirada, Laguna Hills, Ca. 92653-
5316. This was the address as shown on their last filed tax
return (1996 tax return filed April 15, 1997) prior to the
issuance of the notice of deficiency on October 22, 1997.
12. The petitioners did not receive the notice of
deficiency issued on October 22, 1997, for the 1995 taxable year
by certified mail.
These stipulations are binding, unless the parties agree otherwise or the Court relieves a party from the binding effect "where justice requires."
2000 Tax Ct. Memo LEXIS 132">*147 The parties have not informed the Court of any agreement to modify the binding effect of the plain statements in stipulation 10 and the corroborative statements in stipulations 9, 11, and 12. Petitioners have not asked the Court to relieve them from stipulation 9, 10, 11, or 12. We do not find anything in the record in the instant case that suggests that justice requires that we relieve petitioners from any such binding effect.
Accordingly, the parties' stipulations resolve this matter -- the notice of deficiency was issued and mailed to petitioners by certified mail on October 22, 1997. See, e.g.,
Petitioners cite five published opinions in the parts of their brief dealing with the issue of whether the notice of deficiency was mailed. In
All five of the opinions that petitioners cite are distinguishable from the instant case in that the parties in the instant case have laid to rest the important factual matter that the Court of Appeals focused on in BALL; i.e., in the instant case the parties stipulated that the notice of deficiency was mailed to petitioners by certified mail on October 22, 1997.
We conclude, and we have found, based on the parties' stipulations, that respondent has satisfactorily demonstrated that the notice of deficiency2000 Tax Ct. Memo LEXIS 132">*150 was mailed to petitioners by certified mail on October 22, 1997.
2. START OF 90-DAY PERIOD
In their supplemental written objection to respondent's motion to dismiss, and in their opening statement at the evidentiary hearing, petitioners contend that the 90-day period for filing their petition should start on May 13, 1998, the date of the letter from respondent's Taxpayer Advocate which included a copy of the notice of deficiency.
Petitioners did not include this contention in their posthearing brief. We treat this as, in effect, petitioners' abandonment of this contention. See subpars. (4) and (5) of Rule 151(e);
Under
Respondent sent a valid notice of deficiency to petitioners. Petitioners did not file a timely petition. Because the petition was not filed timely, this Court does not have jurisdiction over the instant case.
Under the circumstances, we need not and do not resolve the parties' dispute about an asserted oral notification of the notice of deficiency. See
Although petitioners cannot pursue their case in this Court, they are not without a judicial remedy. Specifically, petitioners may pay the tax, file a claim for refund with the Internal Revenue Service, and if their claim is denied, then sue for a refund in the appropriate Federal District Court or the U.S. Court of Federal Claims. See
We hold for respondent.
Respondent's motion to dismiss will be granted, and an appropriate order will be entered dismissing the instant case for lack of jurisdiction.
1. Unless indicated otherwise, all section, chapter, and subtitle references are to sections, chapters, and subtitles of the Internal Revenue Code of 1986 as in effect for the period beginning on the date the notice of deficiency was mailed and ending on the date the petition was filed. the stipulated exhibits are incorporated herein by this reference.↩
2.
(a) Jurisdiction as to Increase of Deficiency, Additional Amounts, or Additions to the Tax. -- Except as provided by section 7463, the Tax Court shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any additional amount, or any addition to the tax should be assessed, if claim therefor is asserted by the Secretary at or before the hearing or a rehearing.↩
3.
(a) In General. -- If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitle A [relating to income taxes] * * * he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.
(b) Address for Notice of Deficiency. --
(1) Income and gift taxes and certain excise taxes. -- In the absence of notice to the Secretary under section 6093 of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax imposed by subtitle A * * *, if mailed to the taxpayer at his last known address, shall be sufficient for purposes of subtitle A * * * and this chapter [chapter 63, relating to assessment] * * *↩
4.
(a) Time for Filing Petition and Restriction on Assessment. -- Within 90 days * * * after the notice of deficiency authorized in
5. It is well settled that this Court can proceed in a case only if we have jurisdiction and that any party, or the Court sua sponte, can question jurisdiction at any time, even after the case has been tried and briefed. See
6. To the same effect are
7.
* * * * * * *
(e) Binding Effect: A stipulation shall be treated, to the extent of its terms, as a conclusive admission by the parties to the stipulation, unless otherwise permitted by the Court or agreed upon by those parties. The Court will not permit a party to a stipulation to qualify, change, or contradict a stipulation in whole or in part, except that it may do so where justice requires. A stipulation and the admissions therein shall be binding and have effect only in the pending case and not for any other purpose, and cannot be used against any of the parties thereto in any other case or proceeding.
Unless indicated otherwise, all Rule references are to the Tax Court Rules of Practice and Procedure.↩
8. The Government sued to enforce its assessment lien against the cash surrender values of two of the taxpayer's life insurance policies. The taxpayer had gone to Mexico and stayed there. The appellants were beneficiaries under the policies. See
William D. Armstrong v. Commissioner of Internal Revenue , 15 F.3d 970 ( 1994 )
Steven Hoffenberg v. Commissioner of Internal Revenue , 905 F.2d 665 ( 1990 )
Bail Bonds by Marvin Nelson, Inc., a Corporation v. ... , 820 F.2d 1543 ( 1987 )
Roy W. Dewelles v. United States of America , 378 F.2d 37 ( 1967 )
Richard L. Mulvania v. Commissioner of Internal Revenue , 769 F.2d 1376 ( 1985 )
United States v. Hattie E. Ball and Opal B. Cooley , 326 F.2d 898 ( 1964 )
Gregory W. McKay v. Commissioner of the Internal Revenue ... , 886 F.2d 1237 ( 1989 )
Richard A. Wilson and Sharon L. Wilson v. Commissioner of ... , 564 F.2d 1317 ( 1977 )
McCormick v. Commissioner , 55 T.C. 138 ( 1970 )
Frieling v. Commissioner , 81 T.C. 42 ( 1983 )
Mulvania v. Commissioner , 81 T.C. 65 ( 1983 )
McKay v. Commissioner , 89 T.C. 1063 ( 1987 )