This matter is before the Court on respondent's motion to dismiss for lack of jurisdiction on the ground that the petition was filed more than 90 days after the mailing of the notice of deficiency. See sec. 6213(a).
FINDINGS OF FACT
1. 1966.—Petitioner filed his 1966 income tax return with the district director of internal revenue in Milwaukee, Wis., showing his address to be 1647 North Mayflower Court, Milwaukee, Wis. The return, filed on June 2, 1967, disclosed a tax liability in the amount of $232.63 but did not transmit any payment thereon. On July 14, 1967, this amount of tax, an addition to the tax, and interest were assessed.
The unpaid account was thereafter assigned to Revenue Officer Donald N. Holland (hereinafter Holland) for collection. Holland, employed in the collection division of the office of the district director of internal revenue in Milwaukee, communicated with petitioner in early November 1967 concerning the delinquent account, and petitioner paid the entire amount of the assessment during the latter part of that month.
In June 1968, petitioner's 1966 income tax return was selected for examination, and a letter was sent to him concerning the audit. On September 1, 1968, petitioner met with Office Auditor W. G. Klebenow, employed in the audit division of the office of the district director of internal revenue, Milwaukee, Wis., with regard to various items on the return. Sometime between January 24 and May 5, 1969, petitioner was notified by the audit division of proposed adjustments.
On April 1, 1969, petitioner opened post office box 3057 in Rochester, N.Y., where he had moved on or about that date. He paid rentals on April 1, July 2, October 2, and December 31, 1969, and on April 2, 1970, for the respective calendar quarters ended June 30, September 30, and December 31, 1969; and March 31 and June 30, 1970.
On May 5, 1969, the statutory notice of deficiency with respect to petitioner's audited 1966 return, was sent to him, addressed to 1647 N. Mayflower Court, Milwaukee, Wis. 53205. This notice was delivered at that address on the following day, and petitioner's former wife, without any authority to do so, signed a registered receipt therefor.
The 90-day period for filing a petition with this Court for a redetermination of the deficiency proposed in the notice of May 5, 1969, expired on August 3, 1969. No petition having been filed within the 90-day period, an assessment of the amounts set forth in the notice was made on September 26, 1969. A delinquent account was issued in Milwaukee with respect to this 1966 assessment, and was transferred
2. 1967.—In September 1968, Holland met with petitioner to discuss with him a delinquent tax liability for 1967. The account was not settled, and on March 24, 1969, Holland attempted, but failed, to contact petitioner at his place of business in Milwaukee, again to discuss the matter. On March 28, Holland also unsuccessfully attempted to reach petitioner, and was informed by petitioner's secretary that he was out of town and would not return for approximately a week.
On April 2, 1969, Holland personally visited petitioner's Milwaukee business address and was told he was still away from the office. At that time Holland was paid a sum of money in partial satisfaction of petitioner's 1967 account. On April 7, 1969, Holland telephoned petitioner's business office and was informed by his secretary that he was still away and might not return before the end of April.
On April 15, 1969, Holland received an undated letter from petitioner which read:
Attention: Officer Donald N. Holland:
I understand you asked me to call your office which I did, but you were out. I suppose it is about my tax. Send me a statement of all taxes due to:
I will be here for the next few months for sure.
On May 7, 1969, Holland sent to the district director of internal revenue, Buffalo, N.Y., a letter requesting a followup with respect to petitioner's 1967 account. On or about May 29, 1969, this investigation was assigned to Melville in the Rochester office. Melville made telephone contact with petitioner at his place of employment in Rochester
Respondent has moved to dismiss this case for lack of jurisdiction on the ground that the petition was not filed within 90 days of the mailing of the notice of deficiency as required in section 6213(a).
We are compelled to reject petitioner's argument. Petitioner sent the notice of his new address in Rochester to Holland in a communication dealing with petitioner's 1967 tax return. The notice, read in its context, only requested Holland to send any notices of taxes due on the 1967 return to that address. It did not indicate that petitioner had moved to Rochester permanently or for a definite period, or that he wished to have information with respect to all his tax matters sent there. The reports of the legislative committees dealing with the predecessors of section 6212(b) indicate "that the phrase `last known address' of the taxpayer had reference to the last known permanent address or legal residence of the taxpayer, or the last known temporary address of a definite duration or period to which all communications during such period should be sent." (Emphasis added.) Gregory v. United States, 57 F.Supp. 962, 973 (Ct. Cl. 1944).
This Court and others have consistently held that a taxpayer, who asserts that a notice of deficiency has been mailed to him at the wrong address, must show that he filed a clear and concise notification concerning a definite change of address. Langdon P. Marvin, Jr., 40 T.C. 982 (1963). Clearly the statute does not place upon the Internal Revenue Service the "duty and responsibility of finding out before mailing
Petitioner had been in communication with Officer Klebenow with reference to the audit of his 1966 return. Petitioner was aware that adjustments had been proposed; however, he never mentioned this to Officer Holland. In fact at no time prior to the mailing of the notice of deficiency did petitioner ever indicate that he wished all tax correspondence to be sent to his Rochester address.
Respondent's motion to dismiss is sustained.
An appropriate order will be entered.
(a) TIME FOR FILING PETITION AND RESTRICTION ON ASSESSMENT.—Within 90 days * * * after the notice of deficiency authorized in section 6212 is mailed * * * the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. * * *