Opinion
Docket No. 44814.
1954-09-21
ABRAHAM GOLDSTEIN, Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
Jay O. Kramer, Esq. , for the petitioner. Joseph F. Rogers, Esq. , for the respondent.
Petitioner gave his business address on his 1945 income tax return. Thereafter he abandoned this address and on waivers for the year 1945 gave his subsequent business address. A notice of deficiency was mailed to this address. Petitioner had ceased to receive mail there. He had not notified the Commissioner of this fact and he had not given notice of his home address. The registered letter was returned undelivered and finally manual delivery was made. Petitioner filed his petition more than 90 days after the notice was mailed. Held, the notice constituted a valid notice to petitioner's last known address under section 272(k), Internal Revenue Code of 1939, and respondent's motion to dismiss for lack of jurisdiction is granted. Jay O. Kramer, Esq., for the petitioner. Joseph F. Rogers, Esq., for the respondent.
The respondent has determined a deficiency in petitioner's income tax for the year 1945 in the amount of $4,959.54. Cash deposited by petitioner in his personal bank account during 1945 was included as income by respondent.
The petitioner assigns as error (1) that the notice of deficiency was not mailed to petitioner's last known address and (2) that the cash deposits were not income.
The respondent contends that the proceeding should be dismissed for lack of jurisdiction. In view of the conclusion we have reached on the jurisdictional question, we have made no findings of fact on the question of cash deposits.
FINDINGS OF FACT.
Abraham Goldstein is an individual residing at 64–85 Saunders Street, Forest Hills, New York. It was his home in 1945 and at all times thereafter.
Petitioner filed his Federal income tax return for the year 1945 with the collector of internal revenue for the third district of New York. He gave as his address on this return 152 West 42d Street, New York, which was his business address at that time. He listed his occupation as ‘Attorney.’
For the years 1950 and 1951 the petitioner and his wife, Ruth Goldstein, filed joint returns prior to June 1952 with the collector of internal revenue for the first district of New York. They gave as their address 64–85 Saunders Street, Forest Hills, New York. (The returns read ‘6485’ Saunders.) He listed his occupation as ‘Restaurant Manager and Operator.’
Petitioner was a practicing attorney during 1945, having been admitted to the New York bar in 1933.
Upon his discharge from the Army, petitioner attempted to reestablish his law practice. He found his law practice unrewarding and decided to go into the operation of bars and grills. He participated in the purchase and management of several bars and grills during 1945. One restaurant in which he had a financial interest was the Iceland Restaurant (hereinafter referred to as Iceland) located at 1680 Broadway, New York.
When the internal revenue agent investigating petitioner's 1945 return first contacted him in 1948 or 1949, he had ceased to occupy the office at 152 West 42d Street. All conferences between the agent and the petitioner occurred at 1680 Broadway or at the office of his accountant. He maintained an office at Iceland, kept his records there, and received substantial amounts of mail at that address.
The agent first met Goldstein at 1680 Broadway at petitioner's request. The agent knew at that time that he no longer maintained an office at 152 West 42 d Street, the address given on the 1945 return.
During the course of the investigation, petitioner signed waivers extending the time for assessing the 1945 income tax deficiency as follows:
+-------------------------------------------------------+ ¦ ¦Statute ¦Date of ¦Signed by ¦ +------------+--------------+-------------+-------------¦ ¦Taxable year¦extended to— ¦consent ¦Commissioner ¦ +------------+--------------+-------------+-------------¦ ¦ ¦[June 30, 1950¦Jan. 21, 1949¦Feb.¦15, 1949¦ +------------+--------------+-------------+----+--------¦ ¦1945 ¦[June 30, 1951¦Apr. 12, 1950¦June¦15, 1950¦ +------------+--------------+-------------+----+--------¦ ¦ ¦[June 30, 1952¦Apr. 19, 1951¦May ¦4, 1951 ¦ +-------------------------------------------------------+ On these waivers his address is given as 1680 Broadway.
In the early months of 1952, the Iceland Restaurant Corporation was in financial difficulties. At some time prior to June 23, 1952, the corporation was thrown into bankruptcy by its creditors. The agent was never informed, nor did he have knowledge, of such bankruptcy, or that petitioner had ceased to receive mail at 1680 Broadway. He never informed the agent or anyone in the collector's office that 1680 Broadway was no longer his address.
On June 23, 1952, a notice of deficiency was timely sent by registered mail to petitioner at 1680 Broadway. The notice was returned to respondent on June 30 marked ‘removed no address.’ The petitioner was subsequently contacted by telephone at his home on July 14 or 16, 1952, and went to the collector's office, where manual delivery was made July 16, 1952. On October 13, 1952, petitioner filed a petition with this Court.
We find as an ultimate fact that the notice of deficiency was mailed to petitioner's last known address in accordance with the statute.
OPINION.
VAN FOSSAN, Judge:
Each party has raised a jurisdictional question. The petitioner contends that the notice mailed June 23, 1952, was not a valid notice of deficiency because it was not sent to petitioner's ‘last known address' as required by statute. The respondent asserts that this Court has no jurisdiction because the petition was filed more than 90 days after the mailing of the notice of deficiency. If either of these positions is sustained, this Court has no jurisdiction.
Petitioner argues that 1680 Broadway was not his ‘last known address' within the meaning of section 272(k), Internal Revenue Code of 1939.
He testified that the agent investigating the return knew his home address prior to the mailing of the deficiency letter. The agent flatly denied this testimony. Petitioner eventually modified his testimony and stated that he ‘imagined’ the agent knew his home address.
SEC. 272. PROCEDURE IN GENERAL.(k) ADDRESS FOR NOTICE OF DEFICIENCY.—In the absence of notice to the Commissioner under section 312(a) of the existence of a fiduciary relationship, 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 even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.
Respondent contends that 1680 Broadway was petitioner's last known address within the meaning of the statute because the address given on the return had been abandoned, and the Broadway address was the one given in the three waivers. Petitioner testified that he signed the waivers in blank. The revenue agent contradicted this and stated that the waivers contained the address when mailed. We have found as a fact that the waivers carried the address 1680 Broadway when mailed.
It is undisputed that after the notice had been returned, someone in the collector's office telephoned the petitioner at his home. Petitioner went to the collector's office and manual service was completed there. Petitioner makes much of this fact on brief. He argues that this proves the collector's office had actual knowledge of his home address before the 90 day letter was sent. This is a non sequitur. It simply proves that someone in the collector's office was able to locate petitioner by July 14 or 16, nothing more.
Notification of the collector's office generally will not suffice to charge respondent with knowledge that the address as shown on the waivers is no longer petitioner's address. See Estate of Henry W. Clark, 10 T. C. 1107, affd. 173 F. 2d 13, and Estate of George F. Hurd, 9 T. C. 681.
The case of Marjorie F. Birnie, 16 T. C. 861, is in point on the question of jurisdiction. In that case, the taxpayer stated in her return that her address was 3109 Waverly Drive, Los Angeles, California. After an investigation of the return had been started, taxpayer moved to Paradise Valley, Nevada. She filed a waiver giving as her address ‘c/o M. E. Lewis, C. P. A., 1110 Wilshire Los Angeles 14.’ Thereafter taxpayer notified respondent of her Nevada address in connection with another tax matter. A notice of deficiency was sent in care of the address given in the waiver. This Court rejected petitioner's contention that such address was not her last known address and denied the motion to dismiss.
The facts in the case at bar are less favorable to the petitioner than those in the Clark and Birnie cases. They are controlling here. Petitioner's address last known to the Commissioner was 1680 Broadway and the notice of deficiency was validly and timely sent to that address.
The respondent asks that the petition be dismissed because the petition was filed on October 13, 1952, which is more than 90 days after notice was sent on June 23, 1952. The respondent first raised this question of jurisdiction on brief. The petitioner argues that this is too late. The contention is without merit. This Court has limited jurisdiction and a plea of no jurisdiction may be raised at any time. First National Bank of Wichita Falls, Trustee, 3 T. C. 203; D. L. Blackstone, Administrator, 12 B. T. A. 456; and French & Co., 10 B. T. A. 665.
Respondent's motion to dismiss is granted.