Opinion
3197-22
03-11-2024
DAVID G. LEACH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Ronald L. Buch Judge
Pending before the Court is the Commissioner's Motion to Dismiss for Lack of Jurisdiction filed December 21, 2022. David Leach requested innocent spouse relief, which the Commissioner granted in part and denied in part. The Commissioner conveyed his conclusions in notices of Final Determination sent to Mr. Leach's last known address. Mr. Leach claims not to have received the notices. Several years after the Commissioner sent the notices, Mr. Leach filed a petition with the Court. The Commissioner asks that we dismiss this case for lack of jurisdiction because the petition was untimely. Mr. Leach argues that the deadline to file a petition is not jurisdictional. The Tax Court only has jurisdiction to hear cases to the extent provided by Congress, and Congress only gave the Court jurisdiction over innocent spouse cases in which a petition is timely filed. Because Mr. Leach failed to file a timely petition, the Tax Court does not have jurisdiction to hear his case.
Background
Mr. Leach sought relief from joint and severable liability for 2009 and 2010. Although the record is incomplete, information provided by the parties indicates that Mr. Leach filed joint returns with his then-wife Renee for 2009 and 2010. The filing of a joint return gives rise to a joint and severable liability. I.R.C. § 6013(d)(3). In 2016, Mr. Leach requested that the Commissioner relieve him of joint and several liability.
The Commissioner granted relief in part. On June 20, 2017, the Commissioner issued separate notices of Final Determination with respect to 2009 and 2010. For each year, the Commissioner granted relief in part and denied relief in part.
Mr. Leach does not dispute that these notices were sent to his last known address. The Commissioner's certified mail list shows four items being mailed to Mr. Leach on June 20, 2017. Two of those items were addressed to "David Leach" and two were addressed to "David G Leach Jr." The certified mail list identifies pieces of mail by certified mail number, and the Commissioner provided a Final Determination for each year bearing a certified mail number that corresponds to the certified mail list. All four items were mailed to the address shown on Mr. Leach's 2016 Form 1040, U.S. Individual Income Tax Return, which was his most recently filed return at the time the Commissioner mailed the notices.
The Commissioner's records associate both David G. Leach and David G. Leach, Jr. with the same social security number.
Mr. Leach did not receive at least one of the notices. Mr. Leach alleged in his petition that he was not aware "of the mailing of a final determination to his last known address for taxable years 2009 or 2010." Records produced by the Commissioner in response to a Freedom of Information Act request made by Mr. Leach's counsel include one envelope that was returned to the Commissioner. The envelope bears the notation:
RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD
In early 2022, more than four years after the Commissioner mailed the notices of Final Determination, Mr. Leach filed his petition in this case. In his petition, Mr. Leach alleged that he was not aware of the Commissioner's mailing of a final determination for 2009 or 2010 to his last known address.
Mr. Leach resided in Arizona at the time of filing his petition, making this case appealable to the United States Court of Appeals of the Ninth Circuit. I.R.C. § 7482(b)(1)(F).
In answering the petition, the Commissioner pled facts indicating a possible jurisdictional issue. The Commissioner averred that he mailed a Final Determination to Mr. Leach at his last known address on June 20, 2017. If correct, a petition filed in 2022 likely would have been untimely. But the Commissioner did not attach any Final Determination to his answer, and the Court needed further information from the parties.
The Court ordered a motion or further response from the Commissioner. Specifically, the Court instructed the Commissioner either to file a jurisdictional motion or to provide the Court with a copy of any pertinent notices that he issued to Mr. Leach. The Commissioner eventually filed the Motion to Dismiss for Lack of Jurisdiction that is pending before us. Mr. Leach, through counsel, responded to the Commissioner's Motion, and the Commissioner replied.
Discussion
The parties' arguments are fairly straightforward. The Commissioner argues that the deadline by which to file a petition in a standalone innocent spouse case is jurisdictional. We have previously held that the deadline is jurisdictional. Pollock v. Commissioner, 132 T.C. 21 (2009). Mr. Leach urges us to overrule Pollock. He directs our attention to another case pending before this Court, Frutiger v. Commissioner, no. 31153-21, in which this same issue had been briefed but not yet decided at the time Mr. Leach filed his response. We have since decided Frutiger, and our opinion in that case necessitates that we reject Mr. Leach's jurisdictional argument. 162 T.C. No. 5 (2024). Citing Terrell v. Commissioner, 625 F.3d 254 (5th Cir. 2010), Mr. Leach also implies that the Commissioner's having received a piece of returned mail should affect our jurisdictional conclusion, but he does not explain how we would reach a different conclusion. Because Terrell is materially distinguishable, it is inapposite and does not affect our conclusion.
Mr. Leach does not affirmatively state that the address used by the Commissioner was not his address at the time the notices were mailed. And the Postal Service notation on the undelivered envelope does not provide any indication that Mr. Leach was no longer at the address at which delivery was attempted, only that the envelope was "unclaimed." We need not address, and we make no finding, as to where Mr. Leach actually resided when the notices were mailed or when delivery was attempted. We also make no finding as to whether Mr. Leach had actual knowledge of any of the notices.
I. The Commissioner Properly Mailed the Final Determination
The Commissioner sent both notices to Mr. Leach's last known address. The Commissioner must send a notice of final determination by certified or registered mail to the taxpayer's last known address. I.R.C. § 6015(e)(1)(A)(i)(I). A taxpayer's last known address is the address shown on the most recently filed and properly processed return, absent clear and concise notice of a change of address. Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984), cert. denied, 469 U.S. 830 (1984). The Commissioner mailed the Final Determinations to the address shown on Mr. Leach's most recently filed tax return. If a notice is mailed to the taxpayer at the taxpayer's last known address, actual receipt is immaterial. King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), aff'g, 88 T.C. 1042 (1987); see Treas. Reg. §§ 1.6015-6(a)(1), 301.6212-2(a).
The Fifth Circuit's opinion in Terrell does not affect our conclusion. In that case, Ms. Terrell requested innocent spouse relief. After submitting her request to the Commissioner, she relocated. The Commissioner sent Ms. Terrell three separate pieces of correspondence, all of which were returned as undeliverable. Yet even after having received three pieces of mail as undeliverable, the Commissioner sent the final determination to Ms. Terrell at the address listed on her initial request. Terrell, 625 F.3d at 257. Unlike what occurred in Terrell, there is nothing in the record before us that shows that any previous correspondence that was addressed to Mr. Leach was returned to the Commissioner as undeliverable. Even if Mr. Leach's address had changed, the Commissioner was not on notice of any such change at the time he mailed the Final Determinations. In sum, the Commissioner properly mailed the Final Determinations to Mr. Leach's last known address.
II. The 90-Day Petition Deadline is Jurisdictional
Like other federal courts, the Tax Court is a court of limited jurisdiction and can only exercise its jurisdiction to the extent provided by Congress. I.R.C. § 7442; Judge v. Commissioner, 88 T.C. 1175, 1180-81 (1987). When an individual elects innocent spouse relief, section 6015(e)(1)(A) confers jurisdiction on this Court to determine the appropriate relief only if the taxpayer files a petition not later than ninety days after the Commissioner has issued a notice of Final Determination. I.R.C. § 6015(e)(1)(A)(ii); Sutherland v. Commissioner, 155 T.C. 95, 99 (2020).
Mr. Leach filed an untimely petition, and we lack jurisdiction to consider his case. In Frutiger v. Commissioner, we held that the deadline for filing a petition in innocent spouse cases is jurisdictional. In that case, the Commissioner mailed Mr. Frutiger, a notice of Final Determination denying him innocent spouse relief. 162 T.C. No. 5, slip op. at 2. Ninety-six days later, Mr. Frutiger filed a petition seeking review of the Commissioner's Final Determination. Id. Mr. Frutiger argued that the deadline for filing a petition seeking innocent spouse relief should be subject to equitable tolling. 162 T.C. No. 5, slip op. at 5. We held that section 6015(e)(1)(A) comports with the "clear statement" rule set in the recent Supreme Court opinion, Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022). 162 T.C. No. 5, slip op. at 12. Because section 6015(e)(1)(A) makes a clear statement that the 90-day filing deadline is jurisdictional, it is not subject to equitable tolling. We lacked jurisdiction to consider an untimely petition. We reach the same conclusion here.
Counsel for the Center for Taxpayer Rights also filed a brief as amicus curiae.
Conclusion
The Commissioner properly mailed notices of Final Determination to Mr. Leach at his last known address. Mr. Leach filed his petition from those Final Determinations long after the deadline to do so had passed. And that deadline is jurisdictional. Thus, we lack jurisdiction to hear this case, and it is
ORDERED that the Court's Order to Show Cause served November 21, 2022, is made absolute. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed December 21, 2022, is granted, and this case is dismissed.