Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)

MEMORANDUM^* 

The Tax Court denied Quentin L. Breen's motion to vacate its decision dismissing his petition challenging an Internal Revenue Service ("IRS") notice of deficiency. The Tax Court also denied Breen's motion for reconsideration. Breen appeals, and we affirm.

DISCUSSION

Under the circumstances and as Breen concedes, the Tax Court could have granted his motion and vacated its final judgment only if Breen showed that the IRS obtained the judgment against him through fraud on the court. See Abatti v. Commissioner, 859 F.2d 115, 118 (9th Cir. 1988). "We review the Tax Court's denial of leave to file the motion to vacate for abuse of discretion." Id. at 117. We hold that the Tax Court did not abuse its discretion in denying Breen's motions.

Breen argues that the IRS defrauded the Tax Court when it represented to the court in support of its motion to dismiss that it had unsuccessfully attempted to contact Breen concerning settlement negotiations and trial preparations. We reject this argument for two reasons.

First, Breen has failed to show that the IRS misrepresented to the court that it could not locate Breen. Breen argues that the IRS should have ascertained his current address and therefore had constructive knowledge of his address. A taxpayer's last known address, as a matter of law, is the one listed on the taxpayer's last tax return. United States v. Zolla, 724 F.2d 808, 810-11 (9th Cir. 1984). In this circuit, we presume the IRS knows this last address. Id. Breen asks us to extend this rule to include addresses known independently to IRS investigators or ascertainable by the IRS through a telephone call to the State Bar. As we have in the past, we decline to extend further the duty we already recognize in the IRS to ascertain taxpayers' addresses. See id.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988). Because the IRS need not have pursued the methods Breen suggests to ascertain his current address, we cannot say that the IRS knew Breen's current address and yet misrepresented to the Tax Court its inability to locate Breen.

Second, even if the IRS had constructive knowledge of Breen's address, as Breen argues, and thus misrepresented its inability to locate him to the Tax Court, we disagree that such conduct constitutes fraud on the court. "Fraud on the court must involve 'an unconscionable plan or scheme which is designed to improperly influence the court in its decision.' " Abatti, 859 F.2d at 118 (quoting Toscano v. Commissioner), 441 F.2d 930, 934 (9th Cir. 1971). A failure to use its constructive knowledge may well amount to IRS negligence, but it does not arise to an unconscionable plan to influence the Tax Court improperly.¹ 

2. Demand for an Evidentiary Hearing.

Breen argues that the Tax Court should have granted him an evidentiary hearing wherein he could show IRS fraud on the court to invalidate the Tax Court's final judgment against him. We agree with the Tax Court, however, that Breen failed to allege facts sufficient to merit an evidentiary hearing. Breen's argument that the IRS had constructive knowledge of his current address, as we have discussed, does not arise to a prima facie allegation of fraud on the court entitling Breen to an evidentiary hearing.

Moreover, the record shows that regardless of IRS assertions to the court about attempts to contact Breen, the Tax Court did not abuse its discretion in dismissing Breen's petition. As a petitioner before the Tax Court, Breen had a continuing duty to apprise the court of his current address. Tax Ct. Rule 21(b) (4). Breen's failure to fulfill this duty prevented him from receiving Tax Court notices of his pretrial conference and trial dates. Therefore, Breen himself, and not the IRS or Tax Court, bears responsibility for failing to receive these notices and for failing to appear. Because Breen failed to appear at his pretrial conference and trial, the Tax Court was well within its discretionary powers to dismiss Breen's petition. See King, 857 F.2d at 681 (we may "affirm on any basis clearly supported by the record").

Breen argues finally that the IRS denied him due process by giving notice of its motion to dismiss and moving for dismissal on the same day, thus assuring Breen would have no opportunity to respond. We conclude, however, that if any such error did occur, it was harmless. Had Breen fulfilled his duty to apprise the Tax Court of his current address, he would have received notice of his trial date when he could have opposed the IRS motion to dismiss. Moreover, even absent the IRS motion to dismiss, the Tax Court could have dismissed Breen's petition sua sponte for his failure to appear at pretrial conference or trial. Like Breen's claim of fraud on the court, therefore, Breen's due process argument fails. Regardless of IRS conduct in giving notice of its motion to dismiss, the Tax Court did not abuse its discretion in dismissing Breen's petition because of Breen's own failure to abide his duty as a Tax Court petitioner.

AFFIRMED.