WILBUR K. MILLER, Circuit Judge.
The Commissioner of Internal Revenue sent by registered mail on June 25, 1957, a notice of income tax deficiency to A. Ralph D'Andrea, addressing him at 64 East 34th Street, New York, N. Y. On the same day he sent a copy by ordinary mail to Charles H. Renthal, 1501 Broadway, New York, N. Y., the petitioner's attorney in fact.
The registered letter was not delivered to D'Andrea, but was returned to the sender. The copy was duly received by Renthal. A petition for redetermination of the deficiency was mailed to the Tax Court of the United States September 24, 1957.
On November 22, 1957, the respondent Commissioner filed with the Tax Court a motion to dismiss "for lack of jurisdiction for the reason that the petition was not filed within ninety days after the mailing of the statutory notice of deficiency (not counting Saturday, Sunday or a legal holiday in the District of Columbia as the 90th day), as provided in Section 6213(a) of the Internal Revenue Code of 1954 [26 U.S.C.A. § 6213 (a)]." In support, it was alleged that "the notice of deficiency was mailed to the petitioner on June 25, 1957; that the time for filing a petition with the Tax Court expired on September 23,
After a hearing, the Tax Court granted what it described as "respondent's motion to dismiss for lack of jurisdiction alleging that the petition was not filed with the Court within the time prescribed by statute." Thereafter, the petitioner filed a motion to vacate the order of dismissal, alleging facts tending to show the notice of deficiency was not sent by registered mail to his last known address as required by § 6212 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6212. The effect of the motion was to charge that, instead of dismissing for lack of jurisdiction on the ground of tardy filing, the Tax Court should have dismissed for lack of jurisdiction on the ground that the 90-day deficiency notice was not sent by registered mail to the petitioner at his last address known to the Commissioner.
The motion to vacate the order of dismissal was denied April 16, 1958, by the following order entered by the Tax Court:
Decision turns on whether the statutory notice was sent to the petitioner "at his last known address." If it was, the Tax Court may have been correct in dismissing the petition for redetermination as having been filed one day too late.
In other words, the order of dismissal for late filing in effect denied a redetermination
According to the affidavit of the Technical Advisor of the Internal Revenue Service, which was filed with the Tax Court, he "concluded that the petitioner's address was 64 East 34th Street, New York, N. Y., as a result of his examination of the case file, which disclosed that the power of attorney filed by the representative with the District Director of Internal Revenue on June 1, 1956 set forth 64 East 34th Street, New York, N. Y. as petitioner's address." This was the basis for the Commissioner's choice of the 34th Street number in New York as "the last known address."
The power of attorney filed June 1, 1956, from which the Technical Advisor decided that 64 East 34th Street, New York, N. Y., was the last known address, was also before the Tax Court. In pertinent part, it is as follows:
This instrument begins with the petitioner's then present address, and closes with the clear designation of a new one.
The Technical Advisor clearly mistook the import of the power of attorney when he concluded from it that the petitioner's last known address was 64 East 34th Street, New York, N. Y. The Commissioner relied upon the mistake when he sent the deficiency notice to the wrong address; and the Tax Court fell into error by following the same mistake. Cf. Eppler v. Commissioner of Internal Revenue, 7 Cir., 1951, 188 F.2d 95; United States v. Williams, D.C.S.D.Ohio 1958, 164 F.Supp. 874.
Sending a copy of the deficiency notice by ordinary mail to petitioner's attorney in fact fell far short of satisfying the statutory requirement. This case is factually different from Commission of Internal Revenue v. Stewart, 1951, 186 F.2d 239, where the Sixth Circuit held notice by registered mail to the taxpayer's attorney in fact was sufficient. There the attorney in fact was acting under a
The case is remanded with directions to vacate the order dismissing the petition for lack of jurisdiction because of late filing, and in lieu thereof to enter an order dismissing for lack of jurisdiction because the notice of deficiency was not legally given.
Reversed and remanded.
The Government successfully contended that the address in care of Goodman was the "last known address" and that therefore the 90-day letter was sent to the proper place.