T.C. Memo. 2011-129

UNITED STATES TAX COURT

NAMHI LEE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 21200-10. Filed June 9, 2011.

Antar P. Jones, for petitioner.

Michael DeMatos and Rose R. Gole, for respondent.

MEMORANDUM OPINION

JACOBS, Judge: This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction. 

Respondent’s motion is premised on the ground that petitioner did

not file her petition within the time prescribed in section
- 2 -

6213(a).1 Petitioner filed an objection to respondent’s motion

alleging that respondent’s notice of deficiency on which this

case is based is invalid because it was not properly addressed to

her.

Background

Some of the facts have been stipulated and are so found. 

The stipulation of facts and the attached exhibits are

incorporated herein by this reference. Petitioner resided in New

York when her petition was filed.

Respondent determined a deficiency in income tax of $27,604,

an addition to tax pursuant to section 6651(a)(1) of $6,720, and

a section 6662(a) penalty of $5,521 with respect to the year

2004. On May 20, 2010, respondent mailed, via certified mail,

three duplicate notices of deficiency for 2004 to petitioner. 

One duplicate (Notice 1) bore the address 48-50 West 56th Street,

Suite 2A, New York, NY 10036 (the 56th Street location). The ZIP

Code was incorrect. The correct ZIP Code for the 56th Street

location is 10019. The certified mail tracking number for this

notice is 7005-0390-0000-8134-9610. The parties stipulated that

the 56th Street location was petitioner’s last known address.2

1All section references are to the Internal Revenue Code,

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

and Procedure.

2Petitioner is a family primary care doctor. Since 2007 she

has leased the entire second floor of the 56th Street location

(continued...)
- 3 -

Another duplicate (Notice 2) was mailed to 37 West 46th

Street, 2nd Floor, New York, NY 10036 (the 46th Street location). 

And a third duplicate (Notice 3) was mailed to an address in New

Jersey where petitioner had once lived. Petitioner never

received Notice 1 or Notice 3. She eventually received Notice 2.

According to the U.S. Post Office tracking database, the

post office corrected the Notice 1 ZIP Code error and there were

several attempts to deliver Notice 1 to petitioner.3 The

tracking database further shows that Notice 1 was declared

unclaimed on June 11, 2010, and was returned to the Internal

Revenue Service.

Petitioner regularly checked her mailbox at the 56th Street

location. “On and off” she had a receptionist at her office who

would sign for packages and certified mail. Petitioner maintains

that she never received notification of an attempted delivery of

Notice 1. 

As stated supra, petitioner received Notice 2. Notice 2 was

mailed to the 46th Street location on the same day respondent 

2(...continued)

for her medical practice. During 2010 she also used the 56th

Street location as her residence.

3A post office customer service supervisor testified that

standard post office procedures provide that when there is an

initial failure to deliver a certified mail item, two additional

deliveries are to be attempted.
- 4 -

mailed Notice 1. That notice was signed for upon delivery, but

the signature on the domestic return receipt is illegible.

Petitioner previously had an office suite on the second

floor of the 46th Street location. In May 2010 that office was

occupied by an unrelated party and petitioner’s mother lived on

the fourth floor and ran a business from the third floor.

Petitioner’s mail was often delivered to her mother. 

Petitioner’s mother would bundle the mail and, at irregular

intervals, forward it to petitioner. In an affidavit of

petitioner’s mother attached to petitioner’s objection to

respondent’s motion to dismiss, petitioner’s mother asserts that

she received Notice 2 from the unrelated party who was a tenant

of the second floor of the 46th Street location. Petitioner’s

mother is elderly, is not fluent in English, does not sort her

own mail, and frequently is away from her residence at the 46th

Street location, working in upstate New York.

Petitioner received Notice 2 from her mother at the “end of

August, sometime in late August.” Petitioner attached Notice 2

to her petition, which was untimely filed on September 17, 2010. 

The last date to file a timely petition was August 18, 2010. 

 Respondent concedes that the New Jersey address to which

Notice 3 was mailed was not petitioner’s last known address when

that notice was mailed.
- 5 -

Petitioner maintains that respondent’s notice of deficiency

was not “properly served” and “consequently * * * [she] did not

receive the notice via any mailing.” Petitioner asserts that

respondent’s assumption that petitioner’s mother sees petitioner

frequently and therefore was able to deliver Notice 2 to

petitioner timely is erroneous.

Discussion

Section 6212(a) provides that if the Secretary determines

that there is a deficiency in income tax “he is authorized to

send notice of such deficiency to the taxpayer by certified mail

or registered mail.” The notice of deficiency is “sufficient” if

mailed to the taxpayer at his last known address, unless the

Secretary has been properly notified under section 6903 of the

existence of a fiduciary relationship. Sec. 6212(b)(1); Frieling

v. Commissioner, 81 T.C. 42, 52 (1983); Pickering v.

Commissioner, T.C. Memo. 1998-142. If the notice of deficiency

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

actual receipt of the notice is immaterial. King v.

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

1042 (1987); Frieling v. Commissioner, supra at 52; see Tadros v.

Commissioner, 763 F.2d 89, 91-92 (2d Cir. 1985). If the notice

is addressed to a person in the United States, the taxpayer has

90 days after the mailing of the notice to file a petition in

this Court to redetermine the deficiency. Sec. 6213(a).
- 6 -

This Court’s jurisdiction to redetermine tax deficiencies

exists only when the Commissioner issues a notice of deficiency

and the taxpayer files a timely petition to redetermine that

deficiency. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22,

27 (1989); Hunter v. Commissioner, T.C. Memo. 2004-81. In the

case at bar, the petition was not filed within the 90-day period

prescribed by section 6213(a); thus, we lack jurisdiction to

decide the substance of this case. 

Petitioner asserts that the notice of deficiency is invalid

because respondent used an incorrect ZIP Code in mailing Notice 1

to her. If we conclude that the notice of deficiency is invalid,

we must dismiss this case on that basis and not for lack of a

timely filed petition. Keeton v. Commissioner, 74 T.C. 377, 379-

380 (1980); Pickering v. Commissioner, supra.

This Court has long held that an inconsequential error in

the address used in mailing a notice of deficiency does not

render the notice invalid. See Frieling v. Commissioner, supra;

Sebastian v. Commissioner, T.C. Memo. 2007-138; Pickering v.

Commissioner, supra. An error in the address used in mailing a

notice of deficiency is inconsequential where the error is so

minor that it would not prevent delivery of the notice. See

McMullen v. Commissioner, T.C. Memo. 1989-455; Kohilakis v.

Commissioner, T.C. Memo. 1989-366.
- 7 -

This is not the first time we have had to decide the

validity of a notice of deficiency addressed with an incorrect

ZIP Code. In Pickering v. Commissioner, supra, the notice of

deficiency was addressed to the taxpayer using his correct name,

post office box number, city, and State, but with a wrong ZIP

Code. In that case, the Commissioner introduced into the record

a statement from the acting Postmaster in the taxpayer’s city

that the incorrect ZIP Code would not have affected the proper

delivery of the notice of deficiency. The taxpayer offered no

evidence that the notice of deficiency was not delivered, and we

found it significant that the envelope bearing the notice of

deficiency was returned to the Commissioner marked “unclaimed”,

as opposed to “address unknown” or “no such street or number”. 

Similarly, in Boothe v. Commissioner, T.C. Memo. 1986-361, we

stated:

Although petitioners’ names, street number and name, city 

and state were all correct, the zip code was for 

petitioners’ former California address. Petitioners did not

establish that the U.S. Postal Service failed to comply with

postal regulations or that a zip code is an element 

essential to delivery of the notice in question. Failure of

petitioners to actually receive the notice does not vitiate 

it.

Respondent addressed Notice 1 with petitioner’s correct

name, street number and name, floor number, city, and State. 

Moreover, the record demonstrates that the post office discovered

the mistaken ZIP Code and corrected it. The post office tracking

database shows that Notice 1 was delivered to the proper ZIP Code
- 8 -

and that it was eventually declared unclaimed. Petitioner did

not present any evidence that the post office failed to comply

with postal regulations. And it is well recognized that “Once

the notice of deficiency is mailed to the taxpayer’s last known

address, nothing in the Code requires respondent to take

additional steps to effectuate delivery.” Howard v.

Commissioner, T.C. Memo. 1993-315 (citing Pomeroy v. United

States, 864 F.2d 1191, 1195 (5th Cir. 1989)); see Sebastian v.

Commissioner, supra. Considering the totality of the evidence,

we are satisfied that the use of an incorrect ZIP Code in the

mailing of Notice 1 to petitioner constitutes an inconsequential

error that did not adversely affect the proper delivery of Notice

1 to petitioner. 

This is not a case where the Commissioner failed to exercise

reasonable diligence in ascertaining the taxpayer’s last known

address following the return of the notice of deficiency. See

Ward v. Commissioner, 907 F.2d 517 (5th Cir. 1990), revg. 92 T.C.

949 (1989); Mulder v. Commissioner, 855 F.2d 208 (5th Cir. 1988),

revg. T.C. Memo. 1987-363; Wallin v. Commissioner, 744 F.2d 674

(9th Cir. 1984), revg. T.C. Memo. 1983-52; Crum v. Commissioner,

635 F.2d 895 (D.C. Cir. 1980). Here, the notice of deficiency

was properly addressed to petitioner’s last known address, but

for the improper ZIP Code, and the notice of deficiency was

returned to the Internal Revenue Service stamped “unclaimed”, not
- 9 -

“address unknown” or with notification that the taxpayer had

moved. See Tadros v. Commissioner, 763 F.2d 89 (2d Cir. 1985).

In sum, we find that Notice 1 is a valid notice of

deficiency. Hence, we need not address the validity of Notice 2. 

To reflect the foregoing,

An order of dismissal

will be entered granting

respondent’s motion to dismiss

for lack of jurisdiction.