Opinion
Docket No. 11921.
1948-06-14
ESTATE OF HENRY W. CLARK, ALLEYNE CLARK, EXECUTRIX, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Frank E. Barnett, Esq., for the petitioner. William F. Evans, Esq., for the respondent.
A notice of deficiency mailed to the executrix at the address given in the estate tax return, although she had changed her address and had filed documents or written communications to the Commissioner, in connection with the estate, showing a new or different address, but had not requested that the new address be used in communications pertaining to the tax matters of the estate, held, not defective so as to deprive this Court of jurisdiction. Frank E. Barnett, Esq., for the petitioner. William F. Evans, Esq., for the respondent.
This proceeding involves an estate tax deficiency of $29,530.68. In contesting the deficiency the petitioner relies solely upon her contention that the notice of deficiency was defective, in that it was not sent to her properly addressed by registered mail, as required by statute, and that, therefore, this Court is without jurisdiction in the case and the deficiency is barred by the statute of limitations.
FINDINGS OF FACT.
The decedent, Henry W. Clark, died July 17, 1942, a resident of New York, New York. His sister, Alleyne Clark, qualified as his executrix and, on October 22, 1942, filed an estate tax preliminary notice (Form 704) with the collector for the third district of New York. She filed an estate tax return (Form 706) on June 8, 1943. She gave as her address on both forms 280 Park Avenue, New York, New York, the address of decedent at the time of his death.
The Commissioner, on June 6, 1946, sent a deficiency notice by registered mail addressed to ‘Estate of Henry W. Clark, Miss Alleyne Clark, Executrix, 280 Park Avenue, New York, N.Y.‘ This deficiency notice was returned to the sender with the notation that the addressee could not be found. Later, on July 1, 1946, the letter was delivered manually by a representative of the Commissioner to one of her attorneys, Frederick H. Stokes, to whom she had given a power of attorney to represent her as executrix of the decedent's estate in matters before the Treasury Department and the Tax Court of the United States. The attorney accepted delivery of the deficiency notice on behalf of the petitioner and signed a receipt in acknowledgment thereof. A copy of this deficiency notice was attached to the petition filed herein.
The petitioner's failure to receive the deficiency notice by mail through the usual channels was due to the fact that she had changed her residence from 280 Park Avenue, New York, New York, to 142 Chestnut Street, Boston, Massachusetts. She leased an apartment located at that address on June 10, 1943, for a period of one year, beginning September 1, 1943. She moved to the new address about September 1, 1943, and has resided there continuously since that time. She left a forwarding address with the employees at her old address and also with the post office authorities in New York.
The petitioner wrote a letter to the Bureau of Internal Revenue on September 28, 1943, in connection with the auditing of a gift tax return which she had filed for 1942 and in such letter she called attention to the fact that she had recently changed her residence to 142 Chestnut Street, Boston, Massachusetts. Letters relating to the gift tax return were mailed to the petitioner at her new address by the ‘Revenue Agent in Charge, Upper New York Division,‘ on October 29, 1943, and by the Deputy Commissioner, Washington, D.C., on December 18, 1943.
On February 23, 1944, the petitioner, in her capacity as executrix of the decedent's estate and in connection with the estate tax return involved in this proceeding, filed with the ‘Internal Revenue Agent in Charge, Upper New York Division,‘ an affidavit executed by her February 19, 1944, in which she stated, among other things, that she resided at 142 Chestnut Street, Boston, Massachusetts.
There were other communications between the petitioner, or her attorneys, and the Commissioner, or the revenue agent in charge, prior to the mailing of the deficiency notice herein, which showed the petitioner's address as 142 Chestnut Street, Boston, Massachusetts.
On August 30, 1946, the petitioner, as executrix of decedent's estate, filed a petition to this Court alleging that the respondent erred in including in the gross estate the value of certain policies of insurance on the decedent's life, and further alleging, as a separate defense against the proposed assessment, that a notice of deficiency was not sent to the petitioner by registered mail within three years of the date the estate tax return was filed, as required by section 871 (a), Internal Revenue Code, and that, therefore, the proposed assessment is barred by the statute of limitations.
Thereafter, on March 6, 1947, the petitioner filed a motion for a severance of the issues and a special hearing on the question of the applicability of the statute of limitations, which motion was denied. On August 15, 1947, the petitioner filed a motion to dismiss this proceeding for want of jurisdiction, averring that the notice of deficiency was not sent by registered mail to the petitioner at her last known address, ‘in accordance with Section 871 (a) (1) and other related sections of the Internal Revenue Code.‘ Hearing was had on this motion to dismiss and on the merits.
OPINION.
LEMIRE, Judge:
It has been held that defects, such as the one claimed here, in the mailing of a notice of deficiency are cured where the taxpayer receives the notice and timely files a petition on the merits. See Commissioner v. New York Trust Co., 54 Fed.(2d) 463; Olsen v. Helvering, 88 Fed.(2d) 650; Commissioner v. Rosenheim, 132 Fed.(2d) 677; Kay Manufacturing Co., 18 B.T.A. 753; affirmed per curiam, 53 Fed.(2d) 1083; Bankers Trust Co., Trustee, 24 B.T.A. 10; Corinne Porter Scruggs, Administratrix, 29 B.T.A. 1102.
On the facts here, however, we can not find that the notice of deficiency was defective, as the petitioner contends. It was sent to the executrix by registered mail, as required by section 871, Internal Revenue Code, to the address given by her in the estate tax return. The executrix in the meantime had moved from New York to Boston and had conveyed that information to the Commissioner in certain communications pertaining to other tax matters. She had also given her new address in an affidavit which she had furnished the Commissioner in regard to matters connected with the administration of the estate. While the Commissioner might reasonably have used the new address in directing the notice of deficiency to the executrix, we do not think that he was legally required to do so. He might have concluded, with equally good reason, that the executrix wished all communications regarding the tax matters of the estate which she represented mailed to her at the address shown in the estate tax return. At least, the petitioner did not make it clear to the Commissioner that such was not her wish. Only if she had done so and if the Commissioner had nevertheless sent the notice of deficiency to the old address would the petitioner be in a position to press the claims upon which she now relies to escape the proposed assessment.
We think that the notice of deficiency here complied substantially with the requirements of the statute for the purpose of our jurisdiction. See Commissioner v. Rosenheim, supra; Estate of George F. Hurd, 9 T.C. 681.
Since in this proceeding the petitioner has adduced no evidence, and made no argument, on the merits, the respondent's determination of the deficiency of $29,530.68 is sustained.
Reviewed by the Court.
Decision will be entered for the respondent.