WASHINGTON, Circuit Judge.
This is a petition for review of an order of the Tax Court of the United States. The petitioner, Fannie Dolezilek, filed no Federal income tax returns for the years 1946 through 1950. On March 11, 1952, the Commissioner of Internal Revenue mailed to her by registered letter a statutory notice of deficiency in respect to the years just mentioned, pursuant to Section 272 of the Internal Revenue Code, 26 U.S.C. § 272. The letter was properly addressed. It was, however, returned by the Post Office authorities stamped "Unclaimed — Refused."
Petitioner interprets the statute as not requiring actual receipt of notice, and says that ordinarily the ninety-day period is to be computed from the date of the registered mailing. She argues, however, that she was misled by the fact that the letter was delivered by hand. The manual delivery, she says, led her to believe that the ninety days were to be computed from it — and consequently it should be. We cannot agree. The statute flatly says that a petition may be filed with the Tax Court within ninety days "after such notice is mailed." It makes no provision for manual delivery or for the computation of the ninety-day period from the date of such delivery. It specifically provides that "notice of a deficiency in respect of a tax imposed by this chapter, if mailed to the taxpayer at his last known address, shall be sufficient for the purposes of this chapter * * *."
We hold, therefore, that where a taxpayer receives actual notice of deficiency during the ninety-day period, and has adequate time remaining within that period for preparing and filing his petition, he is not entitled to compute the period from a date other than that of mailing.
Petitioner further urges that as a member of the Sioux Tribe of Indians she is a ward of the United States; that the income here in question was derived from restricted trust lands under the jurisdiction of the United States; and that the Secretary of the Interior, as her guardian, should have received notice of the tax deficiency charged against her. We consider these contentions irrelevant to the issue of the Tax Court's jurisdiction.
For these reasons the order of the Tax Court must be
WILBUR K. MILLER, Circuit Judge (dissenting).
The question here seems to me of sufficient importance to justify a statement of the reasons why I cannot concur in the court's conclusion. Before discussing the question, I briefly summarize the facts which gave rise to it.
Mrs. Dolezilek is a full blood Sioux Indian living on the Fort Peck Reservation at or near the small town of Poplar, Montana. She is of subnormal intelligence, incapable of reading English comprehendingly. On March 11, 1952, the Internal Revenue Agent in Charge at Salt Lake City, Utah, deposited in the mail a registered letter addressed to Mrs. Dolezilek at Poplar. It contained a notice from the Commissioner of Internal Revenue that he had determined her to be liable for income taxes in the sum of $15,721.52, plus penalties aggregating $4,622.22. The letter reached the Poplar post office March 13. As Mrs. Dolezilek did not call for it within thirty days thereafter, the postmistress on April 12 returned the letter to the Internal Revenue Agent in Charge at Salt Lake City.
On June 16 Mrs. Dolezilek filed with the Tax Court a petition for redetermination of the proposed assessment. This was only sixty-two days after she had actually received the deficiency notice,
The basic question presented by the factual situation is: Does the mere mailing of a registered deficiency letter which, through no fault of the taxpayer, is not delivered to him but is returned to the sender, constitute notice that the Commissioner of Internal Revenue has made a deficiency determination so as to set in motion the ninety-day period within which, under § 272, the taxpayer may ask the Tax Court to review the determination?
My brothers of the majority answer the question in the affirmative, but they qualify their answer by saying the ninety-day period of limitation began to run against Mrs. Dolezilek when the undelivered letter was mailed, because forty-five days later she received actual notice of the deficiency. This left her ample time, they say, to prepare and file her petition in the Tax Court. Thus the majority refrain from squarely holding that limitation begins to run if notice is completely lacking. But still they rule that the mailing of the undelivered registered letter causes the commencement of the limitation period, provided only that actual notice of deficiency is given to the taxpayer at a later date which is not too late. This seems to me to rewrite the statute which gives the taxpayer ninety days to prepare and file his petition. Congress apparently thought the full period should be allowed. Moreover, my colleagues place upon the Tax Court the difficult duty of deciding, in each case such as this, whether the unexpired portion of the original ninety-day limitation period is long enough to afford the taxpayer a fair opportunity to apply to the Tax Court for relief. The legislative duty to fix a limitation period is imposed on the Tax Court for determination on an ad hoc basis.
I suggest further that, regardless of the restriction the majority place upon their ruling, it remains a holding to this effect: That the ninety-day period for petitioning the Tax Court begins to run when the registered deficiency letter is mailed, although the post office fails to deliver it to the addressee and returns it to the sender; and that this is true even in a case like this where an ignorant, illiterate addressee did not willfully refuse to accept the registered letter, but merely failed to call for it after two notices of its arrival, which she may never have received and may not have understood if she did receive them. Thus efficacy as notice is attributed to the physical act of mailing regardless of nondelivery. The holding means that, if a mail sack containing a deficiency notice were burned or otherwise destroyed in transit, the taxpayer who never received it would be barred from the Tax Court ninety days after the letter was mailed.
I am unwilling to believe Congress intended such an unfair result. Nor do I believe the statute either requires or permits it. The Commissioner is authorized
So, my opinion is that Congress intended to permit an application to the Tax Court within ninety days after the mailing of a final or ninety-day deficiency letter which was actually delivered to the taxpayer by the post office;