T.C. Memo. 2005-148

UNITED STATES TAX COURT

DAVID BROOMFIELD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4849-03L. Filed June 21, 2005.

David Broomfield, pro se.

Mark D. Petersen, for respondent.

MEMORANDUM OPINION

GALE, Judge: This case is before the Court on respondent's

motion to dismiss for lack of jurisdiction on the ground that the

petition was not filed within the time prescribed by section 
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

6330(d)(1).1 Petitioner filed an objection to respondent's

motion. The parties then filed seriatim responses to

petitioner's objection. A hearing was held on respondent's

motion. Petitioner, who is incarcerated, did not appear but

instead submitted a statement under Rule 50(c). Respondent

offered the testimony of the settlement officer who handled

petitioner's request for a hearing under section 6330. We base

our findings on the facts that are not in dispute, petitioner's

submissions, and various documents from petitioner's

administrative file in the record. We rely on respondent's

witness's testimony only to the extent it contains admissions or

establishes the foundation for admitting the material in

petitioner's administrative file.

Background

Petitioner was incarcerated at Oakhill Correctional

Institution in Oregon, Wisconsin, at the time the petition was

filed. 

On April 30, 2002, a Final Notice - Notice of Intent to Levy

and Notice of Your Right to a Hearing, was mailed to petitioner

at 3401 West Wanda Avenue, Milwaukee, Wisconsin ("Wanda Avenue

address"), regarding unpaid Federal income taxes for 1991. On
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May 29, 2002, petitioner timely requested a hearing by filing a

Form 12153, Request for a Collection Due Process Hearing, in

which he listed the Wanda Avenue address as his address.

On September 4, 2002, the settlement officer assigned to

petitioner's case mailed an acknowledgment letter and Appeals

process flyer to petitioner at the Wanda Avenue address. An

assignment letter, requesting that petitioner contact the Appeals

Office to schedule a hearing, was sent to petitioner's Wanda

Avenue address on September 12, 2002. After no response was

received with respect to the foregoing letters, the settlement

officer confirmed the Wanda Avenue address as the address of

petitioner recorded on respondent's Integrated Data Retrieval

System (IDRS), and sent a second assignment letter to the Wanda

Avenue address on October 2, 2002, requesting that petitioner

contact her by November 5, 2002. Petitioner responded to this

letter by telephoning the settlement officer on November 5, 2002;

they conducted a hearing over the telephone at that time. 

Petitioner advised the settlement officer of his belief that

he was due a refund with respect to his 1991 tax year and of his

desire to file a corrected return for 1991. (Petitioner claimed

to have filed previously for 1991.) Petitioner requested that

the settlement officer provide him a return form for completion

and filing. Petitioner further requested return forms for 1997

and 2001 so that he could become current in his filing
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obligations. In the course of this discussion, petitioner

advised the settlement officer that he would be going to jail. 

On the day after their telephone conversation (November 6,

2002), the settlement officer mailed a letter to petitioner at

the Wanda Avenue address which enclosed return forms for 1991 and

1997 through 2001, and set a December 11, 2002, deadline for

petitioner to submit completed returns for these years.

On November 14, 2002, petitioner was incarcerated in the

Wisconsin State prison system.

Petitioner did not submit the completed returns or any other

materials by the December 11 deadline.

On January 30, 2003, respondent mailed a notice of

determination, dated January 30, 2003, regarding the proposed

levy for 1991 to the Wanda Avenue address using certified mail,

return receipt requested. Respondent received a return receipt

card indicating that the notice of determination was accepted at

the Wanda Avenue address on January 31, 2003. The Wanda Avenue

address was also the address given in the most recent Federal

income tax return that petitioner filed prior to the mailing of

the notice of determination; namely, petitioner's return for 1996

received by respondent on August 21, 1997.

On March 11, 2003, the settlement officer received a letter

from petitioner, dated February 28, 2003, and postmarked March

10, 2003, advising that he had been incarcerated since November
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14, 2002, had had no mail forwarded to him by prison authorities,

and therefore had been unable to complete the 1991 return or any

of the other return forms as requested by the settlement officer.

Petitioner sought a "further extension of time" to file a return

for 1991. Petitioner further requested that all materials be

"retransmitted" to him at Oakhill Correctional Institution, 5212

County Hwy. M, P.O. Box 938, Oregon, Wisconsin.

On March 21, 2003, 50 days after respondent mailed the

notice of determination, the Court received a document from

petitioner that was filed as his petition for lien or levy

action. The document was in an envelope postmarked March 15,

2003. Respondent subsequently filed a motion to dismiss for lack

of jurisdiction.

Discussion

Section 6330 establishes the procedures for administrative

and judicial review of actions to collect by levy. Section

6330(a) provides that no levy may be made on any property or

right to property of any person unless the Secretary has notified

such person in writing of the right to a hearing before the levy

is made. 

If a hearing is requested, it is held by the Internal

Revenue Service Office of Appeals. Sec. 6330(b). Following the

hearing, the Appeals officer will issue a written determination

setting forth his findings and decisions. Sec. 301.6330-
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2 Sec. 301.6330-1(f)(1), Proced. & Admin. Regs., clarifies

that this 30-day period commences on the day after the date of

the notice of determination.

1(e)(3)(Q&A-E8)(i), Proced. & Admin. Regs. Section 6330(d)(1)

provides that a person may, within 30 days of a determination,2

appeal the determination to the Tax Court or, if the Tax Court

does not have jurisdiction over the underlying tax liability, to

a Federal District Court. 

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The

Court's jurisdiction under section 6330 depends on the issuance

of a valid notice of determination and the filing of a timely

petition for review. See Sarrell v. Commissioner, 117 T.C. 122,

125 (2001); Offiler v. Commissioner, 114 T.C. 492, 498 (2000). 

It follows that when a petition is not timely filed, we are

obliged to dismiss the case for lack of jurisdiction. See McCune

v. Commissioner, 115 T.C. 114, 118 (2000).

In his motion, respondent argues that the petition is

untimely and that the Court therefore lacks jurisdiction. 

Petitioner maintains that his incarceration and subsequent

transfers within the Wisconsin prison system prevented him from

receiving mail from November 14, 2002, through at least March 2,

2003. Therefore, petitioner argues that he did not receive the
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3 Petitioner argues in the alternative that we should extend

the period for him to file his petition under Fed. R. Civ. P.

6(b). Although the Federal Rules of Civil Procedure may be

instructive in the interpretation and application of our Rules,

see, e.g., Evans Publg., Inc. v. Commissioner, 119 T.C. 242, 249

(2002); Estate of Fulmer v. Commissioner, 83 T.C. 302, 309

(1984), this Court is governed by its own Rules, see sec. 7453. 

This Court's counterpart to Fed. R. Civ. P. 6(b) is Rule 25(c). 

See Explanatory Note to Rule 25(c), 60 T.C. 1080. Rule 25(c)

provides that the Court "in its discretion may make longer or

shorter any period provided by these Rules." (Emphasis added.) 

Rule 25(c) then distinguishes the period "fixed by statute"

within which to file a petition with the Court to redetermine a

deficiency or a liability, and provides that such periods "cannot

be extended by the Court." Fed. R. Civ. P. 6(b) does not address

time periods fixed by statute and thus has little relevance here. 

Consistent with Rule 25(c), we lack authority to extend the

period for filing a petition fixed by sec. 6330(d)(1).

notice of determination with sufficient time to file a timely

petition with this Court.3

Although, section 6330(d) does not specify the means by

which the Commissioner is required to give notice of a

determination made under section 6330, we have held that use of

the method authorized in section 6212(a) and (b) for notices of

deficiency is sufficient. Weber v. Commissioner, 122 T.C. 258,

261-262 (2004). Thus, if a notice of determination is sent by

certified or registered mail to the taxpayer at his last known

address, it is sufficient and valid for purposes of commencing

the 30-day period in which the petition must be filed, regardless

of whether the taxpayer actually receives the notice in time to

petition the Court. Id. at 262-263. 
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4 See sec. 7502(a)(1) and (2)(A); Rule 25(a).

5 The Court of Appeals for the Seventh Circuit has not

adopted the position of this Court and other Courts of Appeals

that the address on the taxpayer's most recently filed return

generally constitutes the last known address. Instead, the

address on a subsequently filed return is relevant but not

dispositive concerning the last known address. Compare Ward v.

Commissioner, 907 F.2d 517, 521 (5th Cir. 1990) (most recent tax

return filed), revg. 92 T.C. 949 (1989); Cylcone Drilling Inc. v.

(continued...)

Respondent sent the notice of determination, dated January

30, 2003, by certified mail to the Wanda Avenue address on

January 30, 2003. The petition in this case was received by the

Court on March 21, 2003, in an envelope postmarked March 15, 20034

– that is, 50 and 44 days, respectively, after the date the

notice of determination was issued and mailed. Accordingly, our

jurisdiction depends on whether the Wanda Avenue address was

petitioner's last known address at the time the notice was

mailed.

The Court of Appeals for the Seventh Circuit, where an

appeal in this case would ordinarily lie, has indicated that a

taxpayer's last known address is the address which in light of

the circumstances the Commissioner reasonably believes is the

address at which the taxpayer wishes to be reached at the time

the notice of deficiency is sent. Eschweiler v. United States,

946 F.2d 45, 49-50 (7th Cir. 1991); Goulding v. United States,

929 F.2d 329, 331 (7th Cir. 1991). The Commissioner may rely on

the address found in the return being audited5 or the most recent
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5(...continued)

Kelley, 769 F.2d 662, 664 (10th Cir. 1985)(most recent tax return

filed); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984)

(most recent tax return filed); Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988)(most recent tax return filed), with Eschweiler

v. United States, 946 F.2d 45, 48 (7th Cir. 1991); McPartlin v.

Commissioner, 653 F.2d 1185, 1190 (7th Cir. 1981). 

address in his files, unless there is "'clear and concise

notification from the taxpayer directing the Commissioner to use

a different address.'" Goulding v. United States, supra (quoting

McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir. 1981));

Eschweiler v. United States, supra; Abeles v. Commissioner, 91

T.C. 1019, 1035 (1988). 

The burden falls on the taxpayer to give clear and concise

notification to the Commissioner of a change in address. 

Eschweiler v. United States, supra at 48; Goulding v. United

States, supra at 331; Alta Sierra Vista, Inc. v. Commissioner, 62

T.C. 367 (1974). The Commissioner need only exercise reasonable

diligence in attempting to discover the taxpayer's last known

address. Eschweiler v. United States, supra at 48. Indeed, in

the view of the Court of Appeals for the Seventh Circuit, even

where the Commissioner has become aware that the address obtained

from the taxpayer may not be where he is currently residing, the

Commissioner is entitled to use such address absent clear and

concise notification from the taxpayer of a new address. Id. at

49 (even though aware that taxpayer's lease had expired for the

address Commissioner used, Commissioner entitled to use such
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address absent clear and concise notification by taxpayer). In

determining whether the Commissioner acted with reasonable

diligence to identify the taxpayer's last known address, the

focus of the inquiry is the information the Commissioner had

available to him at the time the notice was mailed. Follum v.

United States, 128 F.3d 118, 119 (2d Cir. 1997); Eschweiler v.

United States, supra at 48. Whether the Commissioner has

discharged his obligation of reasonable diligence is a question

to be resolved upon the facts and circumstances of each case. 

McPartlin v. Commissioner, supra. 

When the taxpayer is incarcerated, we and other courts have

generally held that the Commissioner is entitled to treat an

address given in the return under audit, or in the return most

recently filed, as the last known address, even where the

Commissioner has some knowledge of the incarceration, absent

clear and concise notification by the taxpayer that the place of

incarceration or some other address should be used. See, e.g.,

Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); Snell v.

Commissioner, T.C. Memo. 1993-470, affd. without published

opinion 50 F.3d 16 (9th Cir. 1995); Agustin v. Commissioner, T.C.

Memo. 1992-167; Tirado v. Commissioner, T.C. Memo. 1979-448; cf.

United States v. Eisenhardt, 437 F. Supp. 247 (D. Md. 1977) (last

known address was place of incarceration where taxpayer advised

Commissioner of place and commencement date of incarceration). 
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The exceptions have generally arisen where the knowledge that the

Commissioner possesses regarding the taxpayer’s incarceration is

quite specific and there is an infirmity in the last known

address on which the Commissioner seeks to rely. See DiViaio v.

Commissioner, 539 F.2d 231 (D.C. Cir. 1976)(notice not sent to

last known address where Commissioner aware that taxpayer had

been incarcerated in Atlanta penitentiary for 2 years and mailed

notice to warden there for service on taxpayer); Keeton v.

Commissioner, 74 T.C. 377 (1980)(Commissioner participated in

prosecution resulting in taxpayers' conviction for Federal tax

crimes, therefore taxpayers' whereabouts in Federal prison system

readily available to Commissioner; address on which Commissioner

relied not given on returns for years involved); O’Brien v.

Commissioner, 62 T.C. 543 (1974)(deficiency determined as a

result of Commissioner’s agent’s interview of taxpayer in jail;

neither address on which Commissioner relied had been provided by

taxpayer).

For the reasons discussed below, we conclude that the Wanda

Avenue address was petitioner’s last known address when

respondent mailed the notice of determination. The Wanda Avenue

address was the address reported by petitioner in the last return

he filed before respondent’s mailing of the notice of

determination; namely, his 1996 Federal income tax return,

received by respondent on August 21, 1997. Moreover, petitioner
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6 In addition, petitioner responded to the settlement

officer’s followup letter of Oct. 2, 2002, sent to the Wanda

Avenue address. We note that the settlement officer sent the

Oct. 2, 2002, letter to the Wanda Avenue address only after

verifying that address in respondent's computerized IDRS file

listings of taxpayer addresses, as petitioner had failed to

respond to two earlier letters sent to the Wanda Avenue address

as followups to his request for a hearing.

7 Because the address reported in the most recently filed

return and that listed in the request for the sec. 6330 hearing

were the same, we have no occasion to consider whether the last

known address standard employed by the Court of Appeals for the

Seventh Circuit, which accords greater weight to the address on

the return currently under audit, should result in greater weight

being given to the address listed on the hearing request rather

than any different address in the most recently filed return.

listed the Wanda Avenue address as his address on his Form 12153

submitted on May 29, 2002.6 See Schake v. Commissioner, T.C.

Memo. 2002-262 (address listed on request for hearing considered

in determining last known address for section 6330 purposes).

As the Wanda Avenue address was both the address reported in

petitioner’s most recently filed return and that listed in his

request for a hearing under section 6330, we conclude that it was

his last known address as of the commencement of his section 6330

hearing.7 The question becomes whether petitioner’s informing the

settlement officer of his pending incarceration caused any change

in the address that respondent was entitled to rely on as the

last known address when the notice of determination was mailed. 

We conclude, in the circumstances of this case, that it does not.

According to the settlement officer's case notes and

correspondence with petitioner, in a telephone conference
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8 In his various submissions, petitioner has at no point

claimed that he advised respondent of the date or place of his

incarceration prior to his Feb. 28, 2003, letter, notwithstanding

the fact that respondent claimed in support of his motion to

dismiss that petitioner "did not notify respondent of a new

address until March 11, 2003, when respondent's Appeals Office

received * * * [petitioner's] letter dated February 28, 2003, in

which petitioner notified respondent of a change of address." 

conducted on November 5, 2002, petitioner and the settlement

officer agreed that petitioner would submit tax returns for 1991

and 1997 through 2001, pursuant to a time frame that the

settlement officer would establish in her letter to petitioner

forwarding the necessary return forms. On November 6, 2002, the

settlement officer sent petitioner a letter (at the Wanda Avenue

address) forwarding the return forms and setting December 11,

2002, as the deadline for returning the completed forms. 

Petitioner clearly received this letter, as he references the

December 11, 2002 deadline and acknowledges his agreement to

submit a 1991 return by then in his various submissions to the

Court. Petitioner was incarcerated on November 14, 2002, but he

did not contact the settlement officer before then or, indeed,

until his letter of February 28, 2003, advising of his new

address at the Oakhill Correctional Institution.8

We do not believe petitioner was unaware that his

incarceration would commence on November 14, 2002, when he spoke

with the settlement officer on November 5, 2002, or when he

received her November 6, 2002, letter shortly thereafter. The
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9 See supra note 8. 

settlement officer concedes that petitioner had made her aware of

his pending incarceration in their November 5, 2002, conversation

but claims that petitioner did not advise her of any specifics

concerning the date or place. On the basis of the November 6,

2002, letter (which evidences the settlement officer's lack of

awareness of petitioner's imminent incarceration), and

petitioner's failure to claim otherwise,9 we find that petitioner

did not advise respondent of the date or place of his

incarceration prior to his letter of February 28, 2003. Indeed,

by his silence in the face of imminent incarceration, petitioner

allowed the settlement officer to be misled about his

whereabouts.

The caselaw concerning last known address generally places

the burden on the taxpayer to apprise the Commissioner through

clear and concise notification of any change of address,

including circumstances where the taxpayer has been incarcerated. 

See Cohen v. United States, 297 F.2d 760 (9th Cir. 1962); Snell

v. Commissioner, T.C. Memo. 1993-470; Agustin v. Commissioner,

T.C. Memo. 1992-167; Tirado v. Commissioner, T.C. Memo. 1979-448. 

The rationale is that the place of incarceration may constitute a

temporary place of abode, and to require the Commissioner to keep

track of a taxpayer's whereabouts in these circumstances would

impose an "impossible administrative burden" on him. Cohen v.
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Commissioner, supra at 773. The exceptions to the taxpayer's

burden to provide clear and concise notification have occurred

where the Commissioner had at his disposal specific information

concerning the whereabouts of an incarcerated taxpayer. See

DiViaio v. Commissioner, 539 F.2d 231 (D.C. Cir. 1976); Keeton v.

Commissioner, 74 T.C. 377 (1980); O’Brien v. Commissioner, 62

T.C. 543 (1974).

Here, petitioner does not allege, and we do not find, that

he notified respondent that he wished any correspondence to be

sent to him at his place of incarceration prior to respondent's

mailing the notice of determination on January 30, 2003. While

petitioner informed the settlement officer that he would be going

to jail, this information "was not of sufficient clarity and

precision to fulfill petitioner's duty of providing clear and

concise notice of a definite change of address." Tirado v.

Commissioner, supra. Moreover, there is no allegation or

suggestion that respondent had some other means of knowing the

specifics of petitioner's incarceration, such that petitioner

might be relieved of his duty to provide clear and concise

notification of any change in address. Keeton v. Commissioner,

supra, is instructive. In that case, the Commissioner had

participated in the prosecution that led to the taxpayer's

conviction for Federal tax crimes. Thus, we concluded that the

Commissioner knew the taxpayer was in Federal prison and could
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have readily ascertained his whereabouts. Similarly, in DiViaio

v. Commissioner, supra, on which petitioner relies, the

Commissioner's knowledge of the taxpayer's place of incarceration

was patent, as the Commissioner mailed the notice of deficiency

to the warden at the Federal penitentiary in Atlanta for service

on the taxpayer. Here, there is no allegation or suggestion that

respondent knew, at the time the notice of determination was

mailed, whether petitioner was in the Federal or State penal

system, much less the precise location where petitioner was

incarcerated. Finally, we note that the notice of determination

mailed on January 30, 2003 to petitioner at the Wanda Avenue

address was accepted there on January 31, 2003, which suggests

that petitioner had made arrangements to receive mail there and

intended for mail to be sent there. See Snell v. Commissioner,

supra. 

We accordingly hold that petitioner's last known address

when the notice of determination was mailed was the Wanda Avenue

address, to which the notice was mailed on January 30, 2003. The

notice was therefore sufficient to commence the 30-day period

within which petitioner could appeal the determination to the Tax

Court under section 6330(d). Weber v. Commissioner, 122 T.C.

258, 261-262 (2004). As the petition was postmarked on March 15,

2003 and delivered to the Court on March 21, 2003, or 44 and 50

days, respectively, after the issuance and mailing of the notice
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of determination, we are obliged to grant respondent's motion to

dismiss for lack of jurisdiction. Sarrell v. Commissioner, 117

T.C. 122 (2001); McCune v. Commissioner, 115 T.C. 114 (2000).

To reflect the foregoing, 

An order of dismissal 

for lack of jurisdiction

will be entered.