T.C. Memo. 2008-175

UNITED STATES TAX COURT

CARLOS SAMANIEGO AND BERTHA E. LUCAS, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 25519-07. Filed July 24, 2008.

Ps altered and thus falsified a notice of

deficiency in order to make it appear that their

petition for redetermination was timely filed with the

Court. 

Held: R’s motion to dismiss for lack of

jurisdiction on the ground that the petition was not

timely filed shall be granted. 

Held, further, the Court shall make its Order To

Show Cause absolute and impose a penalty under I.R.C.

sec. 6673(a)(1), I.R.C., on petitioners for instituting

this action for purposes of delay.

T. Richard Sealy III and Eric Benson, for respondent.
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1 All section references are to the Internal Revenue Code

of 1986, as amended. All Rule references are to the Tax Court

Rules of Practice and Procedure.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This case is before the Court

on (1) respondent’s Motion To Dismiss For Lack Of Jurisdiction,

filed December 11, 2007, and (2) the Court’s Order To Show Cause,

dated May 21, 2008. In his motion, respondent contends that this

case should be dismissed for lack of jurisdiction on the ground

that the petition was not filed within the time prescribed by

section 6213(a) or section 7502.1 In its order, the Court

directed petitioners to show cause why the Court should not

impose a penalty on them pursuant to section 6673(a)(1) for

instituting or maintaining a proceeding in this Court primarily

for delay. 

At the time that the petition was filed, petitioners resided

in the State of Texas.

Background

The facts necessary to a resolution of the two matters

before us are as follows:

On July 23, 2007, respondent mailed joint duplicate original

notices of deficiency to petitioner Carlos Samaniego and to

petitioner Bertha E. Lucas (collectively, petitioners). In the
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notice respondent determined a deficiency in petitioners’ Federal

income tax for the taxable year 2004 of $3,435.

The notice was sent to each petitioner by certified mail

addressed to each of them at the same address subsequently listed

by petitioners on their petition. The U.S. Postal Service has

reported that both duplicate original notices of deficiency were

delivered at 12:13 p.m. on July 27, 2007.

The first page of the notice of deficiency states as

follows: “Last Date to Petition Tax Court: October 22, 2007”.

On November 6, 2007, petitioners, acting pro se, filed a

petition with this Court seeking a redetermination of the

deficiency determined by respondent in the notice of deficiency. 

The petition, which was handwritten on a Tax Court form, arrived

at the Court by regular, first-class mail in an envelope bearing

a clearly legible U.S. Postal Service postmark date of October

26, 2007. 

The address appearing on the petition is the same address to

which the notice of deficiency was sent.

Paragraph 2 of the petition identifies 2004 as the taxable

year in issue and references an IRS notice dated “7-28-07” as the

notice from which petitioners were appealing. Attached as an

exhibit to the petition is a copy of the first page of

respondent’s July 2007 notice of deficiency. However, the

exhibit copy of the notice of deficiency has been altered in two
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2 Respondent certified that a copy of his motion was served

on petitioners at the address of record on Dec. 10, 2007. 

Service was made by regular, first-class mail and was not

returned undelivered to respondent by the Postal Service.

material respects: First, the date of the notice has been

altered to read July 28, 2007, rather than July 23, 2007; second,

the “Last Date to Petition Tax Court” has been altered to read

October 28, 2007, rather than October 22, 2007.

As indicated, respondent filed a Motion To Dismiss For Lack

Of Jurisdiction on December 11, 2007.2 In the motion, respondent

contends that dismissal for lack of jurisdiction is required

because petitioners failed to file a timely petition. Further,

paragraph 1 of respondent’s motion includes the following

statements:

It appears that Petitioners altered and thus falsified

the dates of issuance and filing of the Notice of

Deficiency letter attached to the Petition. Thus, it

appears that Petitioners knowingly filed a false

document with the Court. Respondent welcomes

Petitioners’ response to this observation.

On December 12, 2007, the Court issued a Notice Of Filing

affording petitioners an opportunity to respond to respondent’s

motion. The Notice Of Filing, which was served on petitioners by

certified mail, was returned to the Court by the U.S. Postal

Service marked “Unclaimed - Return to Sender”. Thereupon, by

Order dated January 15, 2008, and served on petitioners by both

certified mail and regular, first-class mail, the Court extended
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3 The copy of the Order that was served by certified mail

was returned to the Court undelivered and marked “unclaimed”;

however, the other copy was not returned undelivered.

the time within which petitioners were to respond to respondent’s

motion.

On February 12, 2008, petitioners filed a generic objection

to respondent’s motion, saying nothing about either the

timeliness matter upon which respondent’s motion was premised or

the “altered and thus falsified” statements made in paragraph 1

thereof. Petitioners requested that all future service be made on

them by both certified mail and regular, first-class mail.

By Order dated February 15, 2008, the Court directed

petitioners to file a supplement to their February 12, 2008

Objection setting forth their position regarding the substantial

differences between respondent’s notice of deficiency and the

copy thereof that petitioners attached to their petition as an

exhibit. That Order also provided for service on petitioners by

both certified mail and regular, first-class mail.3

Petitioners did not respond to the Court’s February 15, 2008

Order.

By Order dated March 31, 2008, the Court calendared

respondent’s motion for hearing on May 21, 2008, in Washington,

D.C. In that Order, petitioners were specifically advised that

they could submit, pursuant to Rule 50(c), a written statement in

lieu of appearing personally at the hearing. The Order was
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served on petitioners by both certified mail and regular, firstclass mail. Neither copy was returned to the Court undelivered.

By Order dated April 1, 2008, the Court focused on the

“altered and thus falsified” statements made by respondent in

paragraph 1 of his motion. Specifically, the Court directed

petitioners to respond to the Order and to provide the original

notice of deficiency from which they appealed to this Court. We

expressly advised petitioners that their failure to respond might

be construed by the Court as an admission by them that they had

“altered and thus falsified” the notice of deficiency, as

suggested by respondent. Again, the Order provided for service

on petitioners by both certified mail and regular, first-class

mail. Neither copy was returned to the Court undelivered.

Petitioners did not respond to the Court’s April 1, 2008

Order.

Petitioners did not appear at the May 21, 2008 hearing in

Washington, D.C., nor did they file a written statement pursuant

to Rule 50(c).

Immediately after the hearing, the Court issued its Order To

Show Cause dated May 21, 2008. The final three paragraphs of the

preamble of that order provide as follows:

The record in this case clearly demonstrates that

respondent sent petitioners a notice of deficiency for

2004 on July 23, 2007, and not on July 28, 2007. 

Accordingly, the last day to petition the Tax Court

would have been Monday, October 22, 2007, and not

October 28, 2007.1 An examination of the copy of the
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first page of the notice attached as an exhibit to the

petition reveals that the July 23, 2007 date has been

altered to read July 28, 2007, and that the October 22,

2007 date has been altered to read October 28, 2007.

 

The petition in this case was received and filed

by the Court on November 6, 2007. The envelope in

which the petition was mailed to the Court bears a

clearly legible United States Postal Service postmark

date of October 26, 2007. Thus, it appears that the

petition was not timely filed; it also appears that the

notice of deficiency was altered in order to make it

appear that the petition was timely filed.

As relevant herein, I.R.C. section 6673(a)(1)

authorizes the Tax Court to require a taxpayer to pay

to the United States a penalty not in excess of $25,000

whenever it appears that proceedings have been

instituted or maintained by the taxpayer primarily for

delay or that the taxpayer’s position in such

proceeding is frivolous or groundless. Altering the

date of a notice of deficiency and altering the date on

such notice by which a petition must be filed serve

only one purpose, namely, to make it appear that the

petition was timely filed in the hope that the case

will proceed. That stratagem, however, is tantamount

to instituting or maintaining a proceeding for purposes

of delay because a proceeding in this Court serves to

defer the date of assessment and collection of the

taxpayer’s tax liability.

 

1 If the notice had been dated July 28, 2007, the

last day to petition the Tax Court would have been

Friday, Oct. 26, 2007, and not Oct. 28, 2007. (We note

incidentally that Oct. 28, 2007, was a Sunday.) 

As before, the Order To Show Cause provided for service on

petitioners by both certified mail and regular, first-class mail. 

Neither copy was returned to the Court undelivered.

Petitioners did not appear at the show cause hearing on June

18, 2008, in Washington, D.C. However, later that day the Court

received from petitioners a brief written statement, which was
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filed pursuant to Rule 50(c). The statement provides in its

entirety as follows:

To the Court:

It was never the intention of the petitioners’ [sic] to

falsify or alter any documents pursuant to their case;

they only wished to be heard. There never was an

intention to file a groundless or frivolous case.

Due to family and travel difficulties, it is impossible

for anyone to be present at this hearing. Mr.

Samaniego and Ms. Lucas are Sales Representatives with

small children, and cannot attend. The assumption was

that their Petition would be dismissed for nonattendance (original Change of Venue was to El Paso,

Texas), and they would deal with their tax bill,

accordingly.

No intent was meant to either disrespect nor defraud

the Court, in any way. We apologize for any

inconvenience to the Court, and ask that the Court rule

on this matter accordingly. Thank you for your time

and consideration.

Petitioners attached to their statement a copy of the Court’s May

21, 2008 Order To Show Cause.

Discussion

A. Respondent’s Motion

This Court’s jurisdiction to redetermine a deficiency in

income tax depends on the issuance of a valid notice of

deficiency and a timely filed petition. Rule 13(a), (c); Monge

v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.

Commissioner, 90 T.C. 142, 147 (1988). Section 6212(a) expressly

authorizes the Commissioner, after determining a deficiency, to

send a notice of deficiency to the taxpayer by certified or
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registered mail. It is sufficient for jurisdictional purposes if

the Commissioner mails the notice of deficiency to the taxpayer

at the taxpayer’s “last known address”. Sec. 6212(b); Frieling

v. Commissioner, 81 T.C. 42, 52 (1983). Indeed, if the notice is

mailed to the taxpayer at the taxpayer’s last known address,

actual receipt of the notice by the taxpayer is immaterial. See

King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88

T.C. 1042 (1987); Yusko v. Commissioner, 89 T.C. 806, 810 (1987);

Frieling v. Commissioner, supra at 52. The taxpayer, in turn,

has 90 days, or 150 days if the notice is addressed to a person

outside the United States, from the date the notice of deficiency

is mailed to file a petition in this Court for a redetermination

of the contested deficiency. Sec. 6213(a). By virtue of section

7502, a petition that is timely mailed is deemed to be timely

filed. 

It is clear in the present case that respondent mailed the

notice of deficiency to petitioners on July 23, 2007. See

Magazine v. Commissioner, 89 T.C. 321, 327 n.8 (1987) (holding

that Postal Service Form 3877, or its equivalent, represents

direct evidence of the date of mailing of the notice of

deficiency). Therefore, the 90-day period within which

petitioners were required to file their petition with the Court

expired on Monday, October 22, 2007. See sec. 7503 (regarding

the time for performance of acts where the last day otherwise
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falls on a Saturday, Sunday, or legal holiday). However,

petitioners did not file a petition for redetermination with this

Court until November 6, 2007, a date after the expiration of the

critical 90-day period. Moreover, the petition arrived at the

Court in an envelope bearing a clearly legible U.S. Postal

Service postmark date of October 26, 2007, once again a date

after the expiration of the critical 90-day period. Under these

circumstances, respondent contends that the petition was not

timely filed and that the Court lacks jurisdiction to redetermine

petitioners’ liability for the deficiency in tax for the taxable

year in issue.

The defense most commonly asserted by taxpayers in cases

such as the present one is that a particular notice of deficiency

was not mailed to the taxpayer at the taxpayer’s last known

address and is therefore invalid. However, this defense has not

been raised in the present case, and the record suggests that any

such defense would be unavailing given the fact that petitioners

had the same address at the time when the notice of deficiency

was mailed and when the petition was filed. Thus, we need not

belabor this matter.

In view of the foregoing, we hold that the petition in this

case was not timely filed pursuant to either section 6213(a) or

section 7502. We shall therefore grant respondent’s motion.
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B. Order To Show Cause

We turn now to the Court’s Order To Show Cause dated May 21,

2008. 

As petitioners were previously advised, and as relevant

herein, section 6673(a)(1) authorizes the Tax Court to require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that proceedings have been instituted

or maintained by the taxpayer primarily for delay. Altering the

date of a notice of deficiency and altering the date on the

notice by which a petition must be filed serve only one purpose,

namely, to make it appear that the petition was timely filed in

the hope that the case will proceed. That stratagem, however, is

tantamount to instituting or maintaining a proceeding for

purposes of delay because a proceeding in this Court serves to

defer the date of assessment and collection of the taxpayer’s tax

liability.

Paragraph 1 of respondent’s motion clearly sets forth

respondent’s allegations regarding the alteration and

falsification of the July 23, 2007 notice of deficiency. 

Respondent invited petitioners to respond to those allegations. 

Petitioners never meaningfully replied. 

Further, in our Order dated February 15, 2008, and in our

subsequent Order dated April 1, 2008, we focused on respondent’s

allegations and directed petitioners to address the discrepancies 
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between respondent’s notice of deficiency and the copy thereof

that petitioners attached to their petition as an exhibit. 

Petitioners never responded to either order. 

Although petitioners did respond to the Court’s May 21, 2008

Order To Show Cause, petitioners’ statement did not persuade us

that the order should be discharged. Petitioners merely alleged

that it was not their “intention” to falsify or alter any

document. However, petitioners did not deny the fact that the

notice of deficiency had been altered or offer any explanation

how that had happened. Further, petitioners did not address the

fact that their handwritten petition specifically referenced the

altered date, i.e., “7-28-07”, as the date of the notice from

which they were appealing. Petitioners also did not offer any

explanation how a copy of the altered notice came to be attached

to their petition as an exhibit. And, to date, petitioners have

ignored our April 1, 2008 Order directing them to produce the

original notice of deficiency.

Petitioners were given four opportunities to address the

situation and explain themselves. To ensure that petitioners had

notice, the Court consistently served its orders on petitioners

by both certified mail and regular, first-class mail. Thus: 

Petitioners essentially ignored our Order dated January 15,

2008, by filing a generic objection to respondent’s motion. In

that generic objection, petitioners ignored the serious
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allegations made by respondent that petitioners had “knowingly

filed a false document with the Court.” 

Petitioners also ignored our Order dated February 15, 2008,

and our Order dated April 1, 2008. Indeed, in the latter order

we expressly advised petitioners that their failure to respond

might be construed by the Court as an admission by them that they

had “altered and thus falsified” the July 23, 2007 notice of

deficiency. 

In their Rule 50(c) statement, petitioners tell us that

“they only wished to be heard.” An altered notice of deficiency

offered petitioners the opportunity, at least if the alterations

went undiscovered, to challenge respondent’s deficiency

determination in court, i.e., to be heard. It would appear that

petitioners perceived the risk to this ploy as nothing other than

the dismissal of their case for lack of jurisdiction, the

consequence of which would be no different than defaulting on the

notice of deficiency in the first place.

The integrity of the judicial process demands that we not

reward petitioners’ stratagem by simply granting respondent’s

motion and moving on to the next case. Accordingly, we shall

make our Order To Show Cause absolute and impose on petitioners a

penalty under section 6673(a)(1) of $1,500.
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Conclusion

In sum, we shall enter an Order And Order Of Dismissal For

Lack Of Jurisdiction: (1) Granting respondent’s Motion To

Dismiss For Lack Of Jurisdiction, filed December 11, 2007; (2)

dismissing this case for lack of jurisdiction on the ground that

the petition was not timely filed; (3) making our Order To Show

Cause dated May 21, 2008, absolute; (4) imposing a penalty on

petitioners under section 6673(a)(1) of $1,500; and (5) providing

for service on petitioners by both certified mail and regular,

first-class mail. 

An appropriate order and

order of dismissal for lack of

jurisdiction will be entered.