Summary
In Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd mem., 538 F.2d 334 (9th Cir. 1976), the Tax Court defined "last known address" as "the taxpayer's last permanent address of a definite duration to which the taxpayer has directed the Commissioner to send all communications."
Summary of this case from McPartlin v. Commissioner of the Internal Revenue ServiceOpinion
Docket Nos. 4024-73 4025-73.
1974-06-24
ALTA SIERRA VISTA, INC., SUCCESSOR IN INTEREST TO ALTA SIERRA RANCHES, INC., PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENTALTA SIERRA VISTA, INC., SUCCESSOR IN INTEREST TO ALTA SIERRA CATTLE CO., INC., PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Stephen J. Schwartz and Charles A. Lane, for the petitioners. Leo McLaughlin, for the respondent.
Stephen J. Schwartz and Charles A. Lane, for the petitioners. Leo McLaughlin, for the respondent.
The Commissioner timely mailed deficiency notices to T corporation in respect of its two predecessor corporations at the post office box address used on T's income tax return for the taxable period immediately following its absorption of its predecessors. Although T received the deficiency notices 13 days later, it failed to file its petitions herein for an additional 123 days. Held, despite the confusion occasioned by T's use of several other addresses during its correspondence with the Commissioner, the address used by the Commissioner in the deficiency notices was the ‘last known address,‘ sufficient to render the deficiency notices valid, and the Commissioner's motions to dismiss for lack of jurisdiction are granted.
Petitioner is the successor in interest to two corporations. The Commissioner determined income tax deficiencies against petitioner in respect of each of its predecessor corporations in the following amounts:
+------------------------------------------------------------+ ¦Docket No. ¦Predecessor's taxable year ended ¦Deficiency ¦ +------------+----------------------------------+------------¦ ¦ ¦ ¦ ¦ +------------+----------------------------------+------------¦ ¦4024-73 ¦Feb. 29, 1968 ¦$10,862.38 ¦ +------------+----------------------------------+------------¦ ¦4025-73 ¦Mar. 1, 1968 ¦281,384.58 ¦ +------------------------------------------------------------+
These cases were consolidated for the purposes of the hearing on the Government's motion to dismiss for lack of jurisdiction. The primary issue presented is whether the Commissioner mailed the deficiency notices herein to petitioner at its ‘last known address' as that phrase is used in section 6212(b)(1), I.R.C. 1954. In the event the Commissioner did satisfy the terms of section 6212(b)(1), the parties do not dispute that petitioner filed its petitions herein after the close of the permissible statutory period in which to file its petitions, hence depriving this Court of jurisdiction in the matter.
FINDINGS OF FACT
The parties have filed a stipulation of facts which, together with its accompanying exhibits, is incorporated herein by this reference.
Alta Sierra Vista, Inc., the petitioner, is a California corporation which maintained its principal office in Sacramento, Calif., at the time of filing its petitions herein. Petitioner is the successor in interest to both Alta Sierra Ranches, Inc., and Alta Sierra Cattle Co., Inc., each of which was a California corporation. Petitioner filed final Federal corporate income tax returns for both corporations for their taxable periods ended February 29, 1968, and March 1, 1968, respectively, with the district director of internal revenue at San Francisco, Calif.
The petitioner, Alta Sierra Vista, Inc., was incorporated on February 20, 1968, under the laws of California. On March 1, 1968, its two wholly owned subsidiary corporations, Alta Sierra Ranches, Inc. (‘Ranches'), and Alta Sierra Cattle Co., Inc. (‘Cattle’), effected statutory mergers with petitioner, the surviving corporation, and thereafter ceased doing business in their former corporate capacities. On or about July 29, 1968, petitioner filed a final Federal income tax return for Ranches on which appeared the following name and address of the taxpayer:
Alta Sierra Ranches, Inc.
P.O. Box 86
Grass Valley, California 95945
Likewise, on or about August 1, 1968, petitioner filed a final tax return for Cattle using the same address as shown on Ranchers' return, i. e., P.O. Box 86, Grass Valley, Calif. 95945 (‘Box 86 address'). Appended to Cattle's return was the following statement:
On March 1, 1968, Alta Sierra Vista, Inc., 140 Tammy Way, Grass Valley, California, acquired 100% of the outstanding stock. Alta Sierra Vista, Inc. also owns 100% of Alta Sierra Ranches, Inc.
Both Ranches' and Cattle's returns were mailed in envelopes which bore ‘140 Tammy Way, Grass Valley, California’ (‘Tammy Way address') as the sender's address.
On January 9, 1969, the United States Postmaster at Grass Valley opened Post Office Drawer E for use by petitioner. On or about April 16, 1969, petitioner filed its income tax return for the taxable period March 1, 1968, through January 31, 1969, with the Western Service Center at Ogden, Utah. On that return petitioner provided the following address (‘Drawer E address'):
P.O. Drawer E
Grass Valley, California 95945
On July 16, 1970, the Western Service Center received petitioner's income tax return for its taxable year ended January 31, 1970. That return, which also showed the Drawer E address, was accompanied by a transmittal letter on the addressed stationery of petitioner's general legal counsel, Diepenbrock, Wulff, Plant & Hannegan, 455 Capitol Mall, Sacramento, Calif. 95814 (‘Capitol Mall address'), which read as follows:
DEAR SIR:
On behalf of Alta Sierra Vista, Inc., we enclose the Federal Income Tax Return of Alta Sierra Vista, Inc. Return shows that no tax is due.
Very truly yours,
DIEPENBROCK, WULFF, PLANT & HANNEGAN
By ROBERT R. WULFF
Robert Wulff, in addition to being a practicing attorney and a member of the Diepenbrock law firm, had become the president and sole executive officer of petitioner in February of 1970.
In March 1971, petitioner moved all of its books and records to new quarters at 950 Fulton Avenue, Suite 145, Sacramento, Calif. 95825 (‘Fulton Avenue address'), at which address they have remained until the time of these proceedings. Accordingly, on March 8, 1971, petitioner's agent notified the postmaster at Grass Valley of the new address which was thereupon recorded on the Post Office Department Address Change Sheet in order to facilitate forwarding mail sent to petitioner at its former Drawer E address.
At sometime prior to March 25, 1971, Revenue Agent Kenneth Kimble began an audit of both Cattle's and Ranches' final tax returns. In the course of his examination, Kimble had opportunity to communicate a number of times with Wulff at his law office. He sent Wulff consent forms for the extension of the applicable periods of limitations, which Wulff executed; on at least two occasions Kimble called Wulff at his law office in respect of the audit; he wrote to Wulff at his law office requesting documents; and he met with Wulff there on May 26, 1971. Kimble addressed his correspondence to Wulff in care of Diepenbrock, et al., at the Capitol Mall address; Wulff's return correspondence was signed by him on behalf of his law firm, not as president of petitioner. In dealing with Kimble, Wulff advised him that, although the Diepenbrock firm was acting as petitioner's general counsel, Stephen Schwartz, an attorney practicing in San Francisco, was representing petitioner with respect to the Government's examination and audit; however, this did not preclude a reasonable inference that Wulff as a member of the Diepenbrock firm was also representing petitioner in this matter.
At about the end of May 1971, petitioner sent its income tax return for the period ended January 31, 1971, to the Western Service Center at Ogden, Utah. The taxpayer's address appearing on the return was:
Alta Sierra Vista, Inc.
c/o Robert L. (sic) Wulff, 455 Capitol Mall
Sacramento, California 95814
The accompanying transmittal letter, however, was written on petitioner's stationery with the Fulton Avenue address typed in in place of the former Drawer E address which was thoroughly ‘X'-ed out.
At sometime prior to September 21, 1971, Kimble left his employment with the Internal Revenue Service, and Revenue Agent Frank Beyer undertook to complete the examination. By that time the examination had expanded in scope to include petitioner's returns for the taxable periods ended January 31, 1969, and January 31, 1970. On September 21, 1971, Beyer mailed additional consent forms to Wulff at his law office requesting further extensions of the periods of limitations to June 30, 1972, for each of the three corporations involved. The forms, as filled out by Beyer, showed the Box 86 address for both Cattle and Ranches and the Drawer E address for petitioner. Wulff signed each of the three forms and returned them to the IRS accompanied by a transmittal letter written on his law firm stationery and signed ‘Diepenbrock, Wulff, Plant & Hannegan, By Robert R. Wulff.’ Wulff did not then or later notify Beyer or any other agent of the Commissioner that the addresses on the forms were erroneous.
Again, on March 10, 1972, Beyer mailed unexecuted consent forms to Wulff's law office for his signature. Wulff signed all three forms, including the one pertaining to petitioner which bore the Drawer E address, and thereby extended the applicable periods of limitations until December 31, 1972. Wulff returned the forms to Beyer along with a transmittal letter typed on petitioner's stationery on which was printed the Fulton Avenue address. The Service thereupon mailed a fully executed copy of Ranches' consent form to the Box 86 address and also sent a copy of a reexecuted consent form
Due to an error in preparing the first form pertaining to cattle, it was necessary to execute a second, corrected form.
Alta Sierra Vista, Inc.
(Successor in Interest to:
Alta Sierra Cattle Co., Inc.)
P.O. Box 86
Grass Valley, CA 95949 (sic)
Wulff did not communicate to Beyer or to any other Government representative that any of the addresses referred to, and specifically the Box 86 and Drawer E addresses, were either incorrect or no longer in use.
On or about July 10, 1972, petitioner filed its income tax return for the taxable year ended January 31, 1972, with the Western Service Station at Ogden, Utah. The address provided on the return was ‘c/o Robert L. (sic) Wulff, 455 Capitol Mall, Sacramento, CA 95814.’ The accompanying transmittal letter was typed on petitioner's stationery showing the Fulton Avenue address.
Once again, on September 18, 1972, Beyer wrote to Wulff requesting an extension of the period of limitations. This was the only letter of their correspondence which was addressed to petitioner (‘Attn: Mr. Robert R. Wulff’) rather than to Wulff directly and sent to the Fulton Avenue address rather than the Capitol Mall address. Nonetheless, the forms enclosed with the letter again used the Drawer E address for petitioner and the Box 86 address for both Cattle and Ranches. Without commenting upon the addresses used, Wulff thereafter advised Beyer that he would not sign the forms.
Following discussions with Beyer, Olaf Berg, an IRS reviewer of field audit cases, determined that deficiencies existed in respect of both Cattle and Ranches. In preparing the notices of deficiency, he noted that several addresses appeared in petitioner's file. The most current returns in the file were those of petitioner for the taxable years ended January 31, 1969 and 1970, both of which bore the Drawer E address. Consequently, it was to that address that he caused to be sent, via certified mail, separate deficiency notices on December 29, 1972, to petitioner as successor in interest to Cattle and Ranches in respect of their taxable years ended March 1, 1968, and February 29, 1968, respectively. Berg did not send duplicate originals to any other address.
The notices of deficiency were delivered to the United States Post Office at Grass Valley, Calif., on January 2, 1973. On January 10, 1973, the postmaster, Grass Valley, forwarded the notices of deficiency to 950 Fulton Avenue, Suite 145, Sacramento, Calif. 95825. The notices arrived at the Sacramento Post Office the following day, and petitioner's agent received them the same day.
On May 14, 1973, 136 days after the deficiency notices were mailed and 123 days after petitioner received them, the Commissioner assessed petitioner the sums of $10,862.38 and $281,384.58 as set forth in the deficiency notices. Petitioner thereupon filed petitions with this Court on June 4, 1973, alleging the failure of the Commissioner to mail deficiency notices to petitioner at its last known address with the result that the statutory periods of limitations in respect of Cattle and Ranches had run as of January 1, 1973, and that the Commissioner's subsequent assessments were therefore without authority. On August 27, 1973, the Commissioner filed motions to dismiss for lack of jurisdiction on the ground that the ‘petitions' (which did not challenge the deficiencies themselves but attacked only the assessments because of the alleged failure to send the notices to its last known address) did not seek the redetermination of deficiencies and that the Court was therefore without jurisdiction. On January 28, 1974, petitioner filed amended petitions without objection, and the Commissioner redirected his motions to dismiss to the amended petitions. At that time, the Commissioner also filed motions to dismiss both petitions on the basis that neither petition was filed within the time prescribed by section 6213(a).
OPINION
RAUM, Judge:
The central issue in this case is whether the Commissioner issued to petitioner valid notices of deficiency. The statutory requirements of such notices are set forth in section 6212, I.R.C. 1954.
Section 6212(a) authorizes the Secretary of the Treasury or his delegate to send a notice of deficiency in respect of income taxes to the taxpayer by certified mail or by registered mail; section 6212(b)(1) provides, with an exception not here pertinent, that when the notice is mailed to the taxpayer's ‘last known address,‘ it is ‘sufficient’ even if the taxpayer is dead or is under a legal disability or has terminated its corporate existence. Despite the seemingly nonmandatory language of subsection (b), some courts have at least suggested that there is thereby imposed a necessary condition to the validity of every deficiency notice, namely, that the Commissioner mail it to the taxpayer's last known address. Cf. DeWelles v. United States, 378 F.2d 37, 39 (C.A. 9), certiorari denied 389 U.S. 996; Frances Lois Stewart, 55 T.C. 238, 241; John W. Heaberlin, 34 T.C. 58, 59; but see Berger v. Commissioner, 404 F.2d 668, 672-674 (C.A. 3), affirming 48 T.C. 848, certiorari denied 395 U.S. 905; Delman v. Commissioner, 384 F.2d 929, 932-933 (C.A. 3), affirming a Memorandum Opinion of this Court, certiorari denied 390 U.S. 952; Clement Brzezinski, 23 T.C. 192, 194-195. It is in any event clear, however, that by properly mailing the deficiency notice to the taxpayer's last known address, the Commissioner can insure the efficacy of that notice. Cf. DeWelles v. United States, 378 F.2d 37, 39 (C.A. 9); Gregory v. United States, 57 F.Supp. 962, 974 (Ct.Cl.), certiorari denied 326 U.S. 747; Clement Brzezinski, 23 T.C. 192, 195.
Sec. 6212 provides in relevant part:SEC. 6212. NOTICE OF DEFICIENCY.(a) IN GENERAL.—If the Secretary of his delegate determines that there is a deficiency in respect of any tax imposed by subtitle A or B or chapter 42, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.(b) ADDRESS FOR NOTICE OF DEFICIENCY.—(1) INCOME AND GIFT TAXES AND TAXES IMPOSED BY CHAPTER 42.—In the absence of notice to the Secretary or his delegate under section 6903 of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax imposed by subtitle A, chapter 12, or chapter 42, if mailed to the taxpayer at his last known address, shall be sufficient for purposes of subtitle A, chapter 12, chapter 42, and 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.
The notice provisions of section 6212 are complemented by the Tax Court filing requirements contained in section 6213.
A taxpayer may file a petition with the Tax Court for redetermination of a deficiency only within 90 days ‘after the notice of deficiency authorized in section 6212 is mailed.’ Sec. 6213(a). The purpose of this section is to provide the taxpayer with an opportunity to challenge in the Tax Court an alleged deficiency before he has to pay it. When these sections are read together, a clear statutory pattern emerges ( DeWelles v. United States, 378 F.2d 37, 39 (C.A. 9)):
Sec. 6213 provides in relevant part:SEC. 6213. RESTRICTIONS APPLICABLE TO DEFICIENCIES; PETITION TO TAX COURT.(a) TIME FOR FILING PETITION AND RESTRICTION ON ASSESSMENT.—Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.(c) FAILURE TO FILE PETITION.—If the taxpayer does not file a petition with the Tax Court within the time prescribed in subsection (a), the deficiency, notice of which has been mailed to the taxpayer, shall be assessed, and shall be paid upon notice and demand from the Secretary or his delegate.
The obligations under ss 6212 and 6213 are mutual. The Secretary's delegate must mail the notice of deficiency to the taxpayer's last known address; if he does not, the 90-day period does not run, and the Tax Court will not have jurisdiction to determine the assessment. J. W. Heaberlin, 34 T.C. 58 (1960). If, however, the notice is properly sent, the taxpayer is bound to petition the Tax Court within 90 days, and even a showing that he did not receive the notice at the last known address will not excuse the taxpayer. Luhring v. Glotzbach, 304 F.2d 556 (4th Cir. 1962). * * *
Petitioner herein contends that the Drawer E address was not its last known address and that the Government thus failed to comply with the statutory procedure set forth in section 6212. Consequently, although petitioner does not deny having received the notices on January 11, 1973, it argues that the statutory period of limitations had expired in the interim, and the Commissioner is therefore barred from assessing the deficiencies here in question. The Commissioner responds simply that the deficiency notices were mailed to petitioner's last known address and that petitioner filed its petition herein after the expiration of the 90-day period which commenced on December 29, 1972, the mailing date. The Court, he concludes, is therefore without jurisdiction and must grant the Commissioner's motion to dismiss for that reason. We hold that the Commissioner must prevail here.
Although the Code does not address itself to that which constitutes a taxpayer's last known address, we have consistently held that the last known address is the taxpayer's last permanent address or legal residence known by the Commissioner or the last known temporary address of a definite duration to which the taxpayer has directed the Commissioner to send all communications. Daniel Lifter, 59 T.C. 818, 820-821; Culver M. Budlong, 58 T.C. 850, 852; Harvey L. McCormick, 55 T.C. 138, 141. See Gregory v. United States, 57 F.Supp. 962, 973 (Ct.Cl.). The relevant inquiry pertains to the Commissioner's knowledge rather than to what may in fact be the taxpayer's most current address in use. Administrative realities demand that the burden fall upon the taxpayer to keep the Commissioner informed as to his proper address. Cohen v. United States, 297 F.2d 760, 773 (C.A. 9), certiorari denied 369 U.S. 865; Clark's Estate v. Commissioner, 173 F.2d 13, 14 (C.A. 2), affirming 10 T.C. 1107; Gregory v. United States, 57 F.Supp. 962, 973 (Ct.Cl.); Culver M. Budlong, 58 T.C. 850, 852; Harvey L. McCormick, 55 T.C. 138, 141-142. And while the Commissioner is bound to exercise reasonable diligence in ascertaining the taxpayer's correct address (Arlington Corp. v. Commissioner, 183 F.2d 448, 450 (C.A. 5), reversing a Memorandum Opinion of this Court; Maxfield v. Commissioner, 153 F.2d 325, 326 (C.A. 9), reversing Tax Court order of dismissal), he is entitled to treat the address appearing on a taxpayer's return as the last known in the absence of clear and concise notification from the taxpayer directing the Commissioner to use a different address. Luhring v. Glotzbach, 304 F.2d 556, 558-559 (C.A. 4); Daniel Lifter, 59 T.C. 818, 821; Culver M. Budlong, 58 T.C. 850, 852; Frances Lois Stewart, 55 T.C. 238, 241; Harvey L. McCormick, 55 T.C. 138, 141; Langdon P. Marvin, Jr., 40 T.C. 982, 984-985. ‘The last known address thus becomes a matter of proof in each case in which the question arises.’ Maxfield v. Commissioner, 153 F.2d 325, 326 (C.A. 9).
Bearing in mind that when a taxpayer changes his address it is he who must notify the Commissioner of such change or else accept the consequences, we are satisfied that the Drawer E address was the ‘last known address' herein. That is the address which petitioner used on its tax returns for the 2 years which were the subject of the Service's examination that was conducted simultaneously with its examination of the tax liabilities of petitioner's predecessors. Petitioner, however, argues that its subsequent course of conduct in communicating with the several revenue agents was tantamount to the requisite notification that it had abandoned the Drawer E address in favor of either the Capitol Mall or the Fulton Avenue address. While it is certainly true that the Commissioner is bound to regard as the taxpayer's last known address an address which replaces that used on the return and of which his agents acquire actual knowledge (Maxfield v. Commissioner, 153 F.2d 326, 326-327 (C.A. 9), reversing Tax Court order of dismissal; Welch v. Schweitzer, 106 F.2d 885, 887 (C.A. 9); United States v. Lehigh, 201 F.Supp. 224, 227 (W.D. Ark.); Floyd R. Clodfelter, 57 T.C. 102, 106), the evidence here falls patently short of establishing that the agents acquired such knowledge. That most of the correspondence was mailed to Wulff's law office attests only to the fact that he, the representative of petitioner, could most easily be reached there, not that petitioner had adopted the same address. Indeed, each of the three consent forms pertaining to petitioner and sent to Wulff at his law office clearly bore the Drawer E address given in petitioner's returns, and Wulff took no steps to correct them. Perhaps signing a waiver form should not be construed as an affirmative representation as to the address used thereon, but it most surely contributes to a course of conduct from which the Commissioner's agent might reasonably infer that the address used remained in use. Delman v. Commissioner, 384 F.2d 929, 932 (C.A. 3), affirming a Memorandum Opinion of this Court, certiorari denied 390 U.S. 952; Frances Lois Stewart, 55 T.C. 238, 241; Marjorie F. Birnie, 16 T.C. 861, 862-863. Furthermore, except for a single instance, Wulff's letters were written on law firm stationery and more often than not signed expressly on behalf of the law firm. This in no way indicates to us that petitioner, the subject of those letters, was also of that address, nor do we believe that the Commissioner's agents could have reasonably concluded otherwise.
With respect to the Fulton Avenue address, it cannot seriously be contended that merely by mailing to the Internal Revenue Service a letter at the top of which petitioner's Fulton Avenue address was printed, without any explanation whatsoever, petitioner duly notified the Commissioner that such address had replaced its former address and that the former address was no longer to be used. That letter's insufficiency as notice is only highlighted by the fact that enclosed with it was a signed consent form in respect of petitioner on which the Drawer E address was given. We are persuaded that the rather cavalier attitude expressed by such conduct is irreconcilable with an intention to notify the Commissioner of a changed address, and we find as a matter of fact that the ambiguity occasioned by the letter entirely deprived it of any efficacy as notice to the Commissioner. Our conclusion in this matter is not altered by Revenue Agent Beyer's use of the Fulton Avenue address for sending additional extension forms to Wulff. As with the earlier forms, this one also used the Drawer E address for petitioner, and inasmuch as Wulff neglected to correct the Service's entirely evident misunderstanding of the Fulton Avenue address' substitutive nature, we cannot credit petitioner with having properly notified the Commissioner.
In this regard, we further note that by showing a post office drawer as its address on the returns, petitioner implicitly represented to the Commissioner that it chose not to use the address of its actual place of business in respect of tax matters. Conceivably, petitioner could have retained the Drawer E address so that even if the Commissioner were to be charged with knowledge of a new address for its place of business, it would not be inconsistent with the Commissioner's use of the Drawer E address as the last known address, at least until he was notified expressly that the post office drawer was no longer in use. Cf. Berger v. Commissioner, 404 F.2d 668, 671 (C.A. 3), affirming 48 T.C. 848, certiorari denied 395 U.S. 905; Delman v. Commissioner, 384 F.2d 929, 932 (C.A. 3), affirming a Memorandum Opinion of this Court, certiorari denied 390 U.S. 952. Petitioner here clearly failed to provide the Commissioner with such notice.
Indeed, quite contrary to petitioner's contention, its course of conduct served to obscure its current address from the Commissioner rather than to apprise him of it. In the course of its dealings with the IRS, petitioner at times used four different addresses, none of which was accompanied by an explanation. In the face of a multiplicity of addresses, we cannot say that the Commissioner had either notice or knowledge that petitioner wished him to use other than the Drawer E address as given on the relevant tax returns. Cf. Richard A. Zaun, 62 T.C. 287 (1974).
Petitioner further argues that Wulff orally directed Revenue Agent Kimble to use his law firm's address. Of course, oral notice, if clear and concise, might have been sufficient to charge the Commissioner with knowledge of and require him to use a new address in sending the notice of deficiency. DeWelles v. United States, 378 F.2d 37, 39 (C.A. 9), certiorari denied 389 U.S. 996; Cohen v. United States, 297 F.2d 760, 773 (C.A. 9), certiorari denied 369 U.S. 865. Here, however, we are unpersuaded by Wulff's testimony, which was not convincing in this respect, as well as by the subsequent course of Wulff's conduct, that he provided Kimble with notice of sufficient precision or clarity to satisfy the requirements of last known address.
Although on its tax returns for the 2 years following those under examination petitioner used the Capitol Mall address and filed them at the same service center as it had the earlier returns, they do not affect the last known address with respect to the years under investigation. As we said in Culver M. Budlong, 58 T.C. 850, 852-853:
The service center does not have any responsibility with respect to the auditing of returns or the issuing of statutory notices of deficiency. The service center provides the means for handling in an effective, administrative fashion the millions of returns to be filed with the district directors within its realm. The Code does not require a check with a service center for verification of the ‘last known address' of a taxpayer prior to the issuance of a statutory notice. * * *
Our confidence in this result is bolstered by the fact that in using the Drawer E address the Commissioner actually provided petitioner with prompt and fair notice of the deficiencies. Cf. Richard A. Zaun, 62 T.C. 378 (1974). Notice is the gist of the statute. As was stated in Boren v. Riddell, 241 F.2d 670, 673-674 (C.A. 9):
Here the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received actual notice in sufficient time to petition the Tax Court to stay the levy and distraint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights.
We find that the Commissioner mailed the notices of deficiency to petitioner at its last known address and satisfied the requirements of section 6212(b) (1). The deficiency notices so sent were valid. Petitioner has filed to file its petitions herein within 90 days of the date of such mailing, and has thus not fulfilled the jurisdictional requirement of this Court. We must therefore grant the Commissioner's motion to dismiss both petitions for lack of jurisdiction.
Appropriate orders will be entered granting respondent's motions to dismiss the petitions.