T.C. Memo. 1998-153

UNITED STATES TAX COURT

THEOLIA MILLSAP, Petitioner v. 

COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 20029-97. Filed April 27, 1998.

 Theolia Millsap, pro se. 

 Richard S. Goldstein and Roslyn D. Grand, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) of the Internal Revenue Code of 1986, as amended, and
- 2 -

1 Unless otherwise indicated, all section references are to

the Internal Revenue Code, as amended, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

Rules 180, 181, and 183.1 The Court agrees with and adopts the

Opinion of the Special Trial Judge, which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

ARMEN, Special Trial 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 6213(a) or section 7502. 

Background

On June 11, 1993, respondent sent petitioner duplicate

original notices of deficiency for the taxable years 1985, 1986,

1987, and 1989 (the first notices of deficiency). In the first

notices of deficiency, respondent determined the following

deficiencies in petitioner's Federal income taxes and additions

to tax: 

 Additions to Tax 

 Sec. Sec. Sec. Sec.

 Year Deficiency 6651(a)(1) 

16653(a)(1) 26653(a)(2) 6654

 1985 $9,930 $2,483 $497 applicable $569 

 1986 10,714 2,679 536 applicable 519

 1987 8,159 2,040 408 applicable 439

 1989 53,364 13,341 --- --- 3,609

1 For 1986 and 1987, sec. 6653(a)(1)(A). 

 

2 For 1986 and 1987, sec. 6653(a)(1)(B).

Also on June 11, 1993, respondent sent petitioner and his

wife Bertha Millsap duplicate original notices of deficiency for
- 3 -

the taxable years 1988, 1990, 1991 (the second notices of

deficiency). In the second notices of deficiency, respondent

determined the following deficiencies in petitioner's and Mrs.

Millsap's Federal income taxes and penalties and additions to

tax: 

 Additions to Tax 

 Sec. Sec. Sec. Sec.

 Year Deficiency 6651(a)(1) 6653(a)(1) 6661 6662

 1988 $13,554 --- $678 $3,389 ---

 1990 2,728 $610 --- --- $531

 1991 4,962 1,225 --- --- 992

The first notices of deficiency were sent by certified mail

and were addressed to petitioner at 14 Atteiram Drive, Rome,

Georgia 30161 (the Atteiram Drive address) and at 178 East 11th

Street, Rome, Georgia 30161 (the East 11th Street address). The

second notices of deficiency were also sent by certified mail and

were addressed to petitioner and Mrs. Millsap at the Atteiram

Drive address and at the East 11th Street address.

The notices of deficiency that were mailed to the East 11th

Street address were returned to respondent by the Postal Service

marked "attempted, not known, Rome, GA 30161". The notices of

deficiency that were mailed to the Atteiram Drive address were

not returned to respondent. 

On April 19, 1993, prior to the mailing of the first and

second notices of deficiency, respondent sent petitioner a

"Notice of Jeopardy Assessment and Right of Appeal" for the

taxable years 1985, 1987, 1989, and 1991 (the first jeopardy

notice). On the following day, April 20, 1993, respondent sent
- 4 -

2 Respondent's records indicate that petitioner did not

file an income tax return for 1990. However, petitioner attached

a copy of a purported joint return for that year to his Rule

50(c) statement. That copy, however, does not bear the signature

of either petitioner or Mrs. Millsap. In contrast, that copy

does bear a preparer's signature and the date of Aug. 14, 1991. 

Further, that copy lists the East 11th Street address as

petitioner's and Mrs. Millsap's home address.

petitioner and Mrs. Millsap a "Notice of Jeopardy Assessment and

Right of Appeal" for the taxable years 1988 and 1990 (the second

jeopardy notice). 

Both the first and second jeopardy notices were sent by

certified mail and were addressed to petitioner and Mrs. Millsap

at the Atteiram Drive address. Both such notices were delivered

to, and receipted by, "Bertha Millsap" on April 24, 1993.

Petitioner and Mrs. Millsap filed joint Federal income tax

returns for 1989 and 1991 in January 1993. Both returns listed

the East 11th Street address as petitioner's and Mrs. Millsap's

home address.2

Petitioner did not file an income tax return for 1992.

In mailing the first and second notices of deficiency on

June 11, 1993, respondent utilized the East 11th Street address

because that was the address listed on petitioner's most recently

filed income tax returns. In mailing duplicate original notices,

respondent utilized the Atteiram Drive address because

respondent's agents, acting on information furnished by a thirdparty earlier in the year, had actually observed petitioner at
- 5 -

3 At the time that the petition was filed, petitioner

resided in Atlanta, Georgia. 

that address. Moreover, respondent's collection officer and

other agents had executed a writ of entry at the Atteiram Drive

address on April 19, 1993, and Mrs. Millsap was present at such

time. 

In October 1993, respondent's collection officer seized an

automobile operated by Mrs. Millsap. At the time of the seizure,

which occurred on the premises of Mrs. Millsap's employer in

Rome, Georgia, the collection officer first learned that Mrs.

Millsap and/or petitioner had purportedly moved to 12 Landrum

Place, Rome, Georgia 30161 (the Landrum Place address).

Petitioner filed a petition for redetermination with the

Court on October 3, 1997.3 The petition arrived at the Court in

an envelope bearing a U.S. Postal Service postmark date of

September 29, 1997.

 As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction on the ground that the petition was not timely

filed. Petitioner filed an Objection to respondent's motion in

which he stated that he had moved in June 1993 from the Atteiram

Drive address to the Landrum Place address and did not receive

any notice of deficiency. In his objection, petitioner also

stated that respondent's collection officer knew of the change of

address because the officer had seized Mrs. Millsap's automobile.
- 6 -

4 The 1994 edition of Publication 65, the National FiveDigit ZIP Code and Post Office Directory, published by the U.S.

Postal Service does not list any "Nourcross Way" in Rome,

Georgia. There is, however, a "Norcross Way" in Rome, Georgia

30165. We note that documents pertaining to the 1989 taxable

year that were attached to petitioner's Rule 50(c) statement,

viz, Forms 1099-MISC purportedly issued by Millsap Construction,

repeatedly reference "114 N. Crossway St., Rome, GA 30161". The

ZIP Code directory does not list "N. Crossway" or "Crossway" in

Rome, Georgia.

In a subsequent document filed with the Court, petitioner

admitted that he was living at the Atteiram Drive address on June

11, 1993, but that he did not receive any notice of deficiency at

that address. Petitioner stated further that he had moved from

the East 11th Street address in 1989 and that his last known

address was "114 Nourcross Way, Rome, Georgia".4

 This matter was called for hearing at the Court's motions

session in Washington, D.C., on April 8, 1998. Counsel for

respondent appeared at the hearing and presented argument and

exhibits in support of the pending motion. 

Petitioner did not appear at the hearing on April 8, 1998. 

However, he did file a Rule 50(c) statement, attached to which

were "some copies of my tax." These documents include copies of:

Purported Federal and State corporate income tax returns for

petitioner's company Millsap Construction for 1990, purported

Federal and State income tax returns for petitioner and Mrs.

Millsap for 1990 (see supra note 2), the Federal income tax

return for petitioner and Mrs. Millsap for 1991 (see supra p. 4),
- 7 -

5 Three of the 9 Forms 1099 purportedly issued to a Terry

Satterfield, a Joshua Watkins, and a Phil Johnson list as the

recipients' address 12 Landrum Place, Rome, Georgia 30161; i.e.,

the Landrum Place address. Two of the remaining Forms 1099 list

13 Landrum Place and 16 Landrum Place as the recipients' address.

a purported State income tax return for petitioner and Mrs.

Millsap for 1991, and purported Federal and State income tax

returns for petitioner and Mrs. Millsap for 1988. All of these

documents list the East 11th Street address as the applicable

address. The remaining documents attached to petitioner's Rule

50(c) statement include a purported Form 4868 (Application for

Automatic Extension of Time to File U.S. Individual Income Tax

Return) for 1988 (dated April 17, 1989) and 9 Forms 1099-MISC

(with transmittal Form 1096) for Millsap Construction for 1989.5

All of these remaining documents (except for those described

supra note 5) list "114 N. Crossway St., Rome, Georgia 30161" as

the applicable address. See supra note 4. 

Discussion

The Court's jurisdiction to redetermine a deficiency depends

upon 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 registered mail. It is sufficient

for jurisdictional purposes if the Commissioner mails the notice
- 8 -

of deficiency to the taxpayer at the taxpayer's "last known

address". Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52

(1983). If a notice of deficiency is mailed to the taxpayer at

the taxpayer's last known address, actual receipt of the notice

by the taxpayer is immaterial. 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, generally has 90 days from

the date that the notice of deficiency is mailed to file a

petition in this Court for a redetermination of the deficiency. 

Sec. 6213(a).

 There is no question that the first and second notices of

deficiency were mailed to petitioner on June 11, 1993. Further,

there is no question that the petition was not filed until

October 3, 1997, well after the expiration of the critical 90-day

period for filing a timely petition. Accordingly, it follows

that we must dismiss this case for lack of jurisdiction. 

However, in view of petitioner's assertion that the notices of

deficiency were not mailed to petitioner at his last known

address, the issue presented is whether the dismissal of this

case should be based on petitioner's failure to file a timely

petition under section 6213(a) or respondent's failure to issue a

valid notice of deficiency under section 6212. If jurisdiction

is lacking because of respondent's failure to issue a valid
- 9 -

notice of deficiency, we will dismiss on that ground, rather than

for lack of a timely filed petition. Pietanza v. Commissioner,

92 T.C. 729, 735-736 (1989), affd. without published opinion 935

F.2d 1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430,

435 (1980); Keeton v. Commissioner, 74 T.C. 377, 379-380 (1980).

 As indicated, the parties disagree whether the first and

second notices of deficiency were mailed to petitioner at his

last known address as required by section 6212(b). The phrase

"last known address" is not defined in the Code or in the

regulations. We have held that a taxpayer's last known address

is the address shown on his or her most recently filed return,

absent clear and concise notice of a change of address. Abeles

v. Commissioner, 91 T.C. 1019, 1035 (1988). The burden of

proving that the notice of deficiency was not sent to the

taxpayer at his or her last known address is on the taxpayer. 

Yusko v. Commissioner, supra at 808.

 Respondent contends that the Atteiram Drive address was

petitioner's last known address. If the Atteiram Drive address

was not petitioner's last known address, respondent submits that

the East 11th Street address was petitioner's last known address. 

In either event, respondent contends that the notices of

deficiency are valid because they were sent to petitioner at his

last known address.
- 10 -

6 As previously mentioned, actual receipt of a notice of

deficiency by a taxpayer is immaterial if the notice is mailed to

the taxpayer at the taxpayer's last known address. 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, 81 T.C. 42, 52 (1983).

In contrast, petitioner contends that his last known address

was either the Landrum Place address or "114 Nourcross Way".

Because no notice of deficiency was sent to him at either such

address, and further because he allegedly did not receive any

notice of deficiency, petitioner contends that the notices of

deficiency that were issued by respondent are invalid.6

The record in this case convincingly demonstrates that

either the Atteiram Drive address or the East 11th Street address

was petitioner's last known address. In view of the fact that

respondent mailed duplicate original notices of deficiency to

each such address, we need not decide whether the Atteiram Drive

address or the East 11th Street address was petitioner's last

known address.

 In January 1993, petitioner filed his 1989 and 1991 income

tax returns. Both of those returns listed the East 11th Street

address as petitioner's home address, and those returns were the

ones that most recently preceded the mailing of the notices of

deficiency on June 11, 1993. Therefore, in the absence of clear

and concise notice of a change of address, the East 11th Street
- 11 -

address was petitioner's last known address under the rationale

of Abeles v. Commissioner, supra at 1035.

Although there is no indication that petitioner himself ever

gave respondent clear and concise notice of a change of address,

respondent was advised by a third party, early in 1993, that

petitioner was residing at the Atteiram Drive address. 

Respondent's agents confirmed this fact by actual observation of

petitioner at the Atteiram Drive address and by executing a writ

of entry at that address on April 19, 1993. Moreover, the

jeopardy notices that were mailed to the Atteiram Drive address

were delivered to, and receipted by, "Bertha Millsap" on April

24, 1993. Accordingly, it was reasonable for respondent to mail

duplicate original notices of deficiency to the Atteiram Drive

address. 

The foregoing analysis, coupled with petitioner's admission

that he was actually living at the Atteiram Drive address on June

11, 1993, leads us to reject petitioner's contention that his

last known address was either the Landrum Place address or "114

Nourcross Way". Insofar as the Landrum Place address is

concerned, we observe that that address first came to light in

October 1993, 4 months after the mailing of the notices of

deficiency, when respondent's collection officer seized an

automobile operated by Mrs. Millsap. And insofar as "114

Nourcross Way" is concerned, we observe that no document in the
- 12 -

7 Although petitioner cannot pursue his case in this Court,

he is not without a remedy. In short, petitioner may pay the

tax, file a claim for refund with the Internal Revenue Service,

and if the claim is denied, sue for a refund in the Federal

District Court or the U.S. Court of Federal Claims. See

McCormick v. Commissioner, 55 T.C. 138, 142 (1970). 

record supports the existence of such an address and, to the

extent that such address may actually be "114 N. Crossway St.",

such latter address does not appear on any document in the record

for a taxable year after 1989.

Conclusion

In view of the foregoing, we hold that a notice of

deficiency for the taxable years 1985, 1986, 1987, and 1989 and a

notice of deficiency for 1988, 1990, 1991 were each sent to

petitioner at his last known address. Accordingly, those notices

are valid, and we must, therefore, dismiss this case for lack of

jurisdiction on the ground that the petition was not timely

filed.7

To reflect the foregoing,

An order of dismissal

will be entered granting

respondent's Motion to

Dismiss for Lack of

Jurisdiction.