Opinion
2102-20S
06-09-2021
RICHARD SUBIN, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Patrick J. Urda Judge
Petitioner, Richard Subin, filed a petition on February 3, 2020, requesting interest abatement and a redetermination of the deficiency for his 2016 tax year. [Doc. 1 at 1.] The Commissioner subsequently filed a motion to dismiss for lack of jurisdiction, contending that Mr. Subin's petition was untimely under section 6213. [Doc. 4 at 3.] Mr. Subin responded that the IRS had sent the notice of deficiency to the wrong address and that he had not received the notice in a timely fashion. [Doc. 14.] We will grant the Commissioner's motion and dismiss the case.
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. "Doc." references are to the documents compiled in the docket index for this case.
BACKGROUND
The following facts are solely for consideration of the pending motion and are based on the parties' pleadings, including the motion papers and supporting exhibits, and concessions made during oral argument on the motion to dismiss on March 15, 2021. At all times relevant to this case, Mr. Subin lived in Westminster, Colorado.
This case arises out of an IRS examination into Mr. Subin's 2016 tax year. As part of this examination, the IRS sent four letters to Mr. Subin at his Westminster address between July 23, 2018 and February 28, 2019. [Doc. 29 at 3.]
On or about March 5, 2019, Blue Bear Tax Solutions (Blue Bear), Mr. Subin's tax return preparer, filed his 2018 Form 1040, U.S. Individual Income Tax Return. [Doc. 19 at 7.] On the tax return, Blue Bear listed the Denver address of Mr. Subin's former tax return preparer as his home address, rather than the Westminster address. [Id.] Although he reviewed and signed the return, Mr. Subin did not notice this mistake. [Doc. 20 at 2.]
On April 8, 2019, the IRS sent by certified mail a statutory notice of deficiency to Mr. Subin at the Denver address, determining a deficiency of $6, 648 in his 2016 Federal income tax as well as a $1, 330 accuracy-related penalty under section 6662(a). [Doc. 1 at 3.] The notice identified July 15, 2019, as the last date to petition the Tax Court for redetermination. [Id.] Mr. Subin did not file his petition until February 3, 2020, 203 days after the statutory deadline had passed. [Doc. 1.]
At a March 2021 hearing on the motion to dismiss, the Commissioner conceded the accuracy-related penalty. [Doc. 30 at 5.]
DISCUSSION
I. Mr. Subin's Request for Interest Abatement
As an initial matter, we lack jurisdiction over Mr. Subin's request for interest abatement. Mr. Subin checked a box on his petition indicating that he sought review of a notice of final determination for disallowance of interest abatement claim with respect to his 2016 tax year. [Doc. 1 at 1.] Generally, we have jurisdiction over such a claim "at any time" after (1) the mailing of a final determination not to abate interest or (2) the claim has been pending with the IRS for 180 days. Sec. 6404(h)(1).
Mr. Subin fails to establish our jurisdiction over this claim. Specifically, Mr. Subin has neither shown that the IRS issued a final determination not to abate interest, nor demonstrated that he filed a claim that had been pending for at least 180 days when he filed his petition. We accordingly dismiss this claim for lack of jurisdiction. See Rogers v. Commissioner, T.C. Memo. 2009-111, at *5.
II. Mr. Subin's Request for Redetermination of Deficiency
A. Governing Principles
We likewise lack jurisdiction over Mr. Subin's redetermination claim. Our jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c); Rivas v. Commissioner, T.C. Memo. 2020-124, at * 1. As to the latter requirement, a taxpayer generally has 90 days after the issuance of a notice of deficiency to file a petition for redetermination in this Court. See sec. 6213(a).
For a notice of deficiency to be valid, it must be mailed to the taxpayer's last known address by certified or registered mail. See sec. 6212(a) and (b); see also Yusko v. Commissioner, 89 T.C. 806, 810 (1987); Cherizol v. Commissioner, T.C. Memo. 2014-119, at *7. Actual receipt of the notice is not required as long as the IRS properly mailed the notice to the taxpayer's last known address. See Ramey v. Commissioner, 156 T.C. No. 1, 2021 WL 129793, at *7 (2021) (citing Williams v. Commissioner, 935 F.2d 1066, 1067-68 (9th Cir. 1991), affg T.C. Memo. 1989-439).
In general, "a taxpayer's last known address is the address that appears on the taxpayer's most recently filed and properly processed Federal tax return, unless the [IRS] is given clear and concise notification of a different address" Sec. 301.6212-2(a), Proced. & Admin. Regs.; see also Chapman v. Commissioner, T.C. Memo. 2019-110, at * 11. A taxpayer may change his address in a variety of ways, including utilizing a new address on his most recently filed tax return. See Savedoff v. Commissioner, T.C. Memo. 2020-125, at *9; see also sec. 301.6212-2(a) and (b), Proced. & Admin. Regs.; Rev. Proc. 2010-16, sec. 5.04, 2010-19 I.R.B. 664, 667. When notified of a change of address, the Commissioner must exercise reasonable care and diligence in ascertaining and mailing the notice of deficiency to the correct address. See Roy v. Commissioner, T.C. Memo. 1992-559, at *4.
In deciding whether the Commissioner mailed a notice to a taxpayer at the taxpayer's last known address, the relevant inquiry "pertains to * * * [the Commissioner's] knowledge rather than to what may in fact be the taxpayer's most current address." Frieling v. Commissioner, 81 T.C. 42, 49 (1982).
B. Analysis
In this case, the parties agree that Mr. Subin's petition was not filed within 90 days of the date on which the notice of deficiency was mailed. The parties solely dispute whether the notice was sent to Mr. Subin's last known address.
If jurisdiction is lacking because of respondent's failure to issue a valid notice of deficiency, we will dismiss on that ground, rather than for lack of a timely filed petition. Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989), affd without published opinion, 935 F.2d 1282 (3d Cir. 1991); Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Keeton v. Commissioner, 74 T.C. 377, 379-380 (1980).
We conclude that the notice was properly mailed to Mr. Subin's last known address, as defined in section 301.6212-2(a), Proced. & Admin. Regs. At the time that the notice of deficiency was issued on April 15, 2019, Mr. Subin's "most recently filed and properly processed Federal tax return" was his 2018 tax return, filed March 5, 2019, which included the Denver address of his former tax return preparer as Mr. Subin's address. The Denver address thus was the last known address unless the IRS was given clear and concise notification of a different address. See sec. 301.6212-2(a), Proced. & Admin. Regs.
Mr. Subin has presented no evidence or argument that he provided such notification. Instead, he argues that the IRS should have deduced that the Denver address was incorrect because of the previous correspondence addressed to his Westminster address. This correspondence, however, predates the filing of Mr. Subin's 2018 tax return, and thus would not alert the IRS to the error. Mr. Subin has not established that the IRS failed to exercise reasonable care or due diligence when it accepted the Denver address as his last known address. See, e.g., Bagwell v. Commissioner, T.C. Memo. 1984-93, 1984 WL 15403, at *5 (1984) (stating that if the taxpayer's own accountant did not know of the address discrepancy and the taxpayer overlooked the mistake while he signed the return, it would not be reasonable to charge the Commissioner with knowledge of the address change).
The IRS thus was entitled to rely on the Denver address as Mr. Subin's last known address when it mailed the notice of deficiency. The IRS has established that it properly sent the notice by certified mail to the Denver address, as evidenced by a copy of the notice (displaying the Denver address and a certified mail tracking number) and a U.S. Postal Service Form 3877, Firm Mailing Book for Accountable Mail, which reflects the mailing to the Denver address. Mr. Subin did not petition this Court within the 90-day period established by section 6213(a), and we therefore lack jurisdiction over Mr. Subin's deficiency claim.
Although Mr. Subin cannot pursue his case in this Court, he is not without a judicial remedy. Specifically, he may pay the tax, file a claim for refund with the Internal Revenue Service, and, if the claim is denied, sue for a refund in the appropriate Federal District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n. 5 (1970).
Accordingly, it is
ORDERED that the Commissioner's motion to dismiss for lack of jurisdiction, filed April 2, 2020, as supplemented on August 24, 2020 and April 14, 2021, is granted, and this case is dismissed for lack of jurisdiction.