Opinion
4192-22
03-08-2023
JOHN M. LEFFLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
Petitioner timely filed the petition in this case on March 8, 2022, seeking review of a notice of deficiency, dated December 27, 2021, issued to petitioner for tax year 2018.
On August 4, 2022, petitioner filed a Motion to Dismiss asserting that the notice of deficiency is invalid because (1) respondent failed to send the notice of deficiency to petitioner by certified mail and (2) the notice of deficiency does not state the last day to timely file a petition in the Tax Court.
On October 11, 2022, respondent filed a Notice of Objection to Motion to Dismiss, in which he asserts that he mailed the notice of deficiency to petitioner's last known address by certified mail. Respondent attached to his Objection a copy of a postmarked substitute United States Postal Service Form 3877 showing that the notice of deficiency was mailed by certified mail to petitioner at 217 N Juanita Ave, Redondo Beach, CA 90277, on December 23, 2021.
On January 30, 2023, petitioner filed a Response to respondent's Objection, in which he states, "Petitioner maintains his arguments by and through counsel with respect to the errors on the face of the notice of deficiency. No further arguments will be presented."
If a notice has not properly been sent to a taxpayer's last know address, the provisions of sections 6212(a), 6212(b)(1), and 6213(a), I.R.C., were intended to provide the taxpayer with notice of the Commissioner's determination and an opportunity to litigate the validity of that determination in this Court without first paying the determined deficiency. McKay v. Commissioner, 89 T.C. 1063, 1067 (1987), aff 'd, 886 F.2d 1237 (9th Cir. 1989); Mulvania v. Commissioner, 81 T.C. 65, 67 (1983), and cases there cited. Providing the taxpayer with actual notice of the deficiency in a timely manner is the essence of the statutory scheme. Clodfelter v. Commissioner, 527 F.2d 754, 756 (9th Cir. 1975), aff 'g 57 T.C. 102 (1971); McKay v. Commissioner, 89 T.C. at 1068; Mulvania v. Commissioner, 81 T.C. at 68. If mailing results in actual notice without prejudicial delay, it meets the conditions of section 6212(a), I.R.C., regardless of the address to or manner in which the notice was sent. Clodfelter v. Commissioner, 527 F.2d at 757; see also, e.g. McKay v. Commissioner, 89 T.C. at 1065, 1068; Mulvania v. Commissioner, 81 T.C. at 69.
The omission of the last date to timely file a petition in the Tax Court does not render the notice of deficiency invalid. See Elings v. Commsiioner, 324 F.3d 1110, 1112-1113 (9th Cir. 2003), aff 'g an unpublished Order of this Court; Smith v. Commissioner, 275 F.3d 912, 915-916 (10th Cir. 2001), aff 'g 114 T.C. 489 (2000); Rochelle v. Commissioner, 116 T.C. 356 (2001), aff'd 293 F.3d 740 (5th Cir. 2002).
The notice of deficiency clearly states that the petition had to be filed within 90 days of the date of the notice of deficiency. Petitioner filed a timely petition in this case by filing the petition 71 days after the date of the notice of deficiency and within 90 days of the mailing of the notice of deficiency.
Upon due consideration, it is
ORDERED that petitioner's Motion to Dismiss is denied.