Harold E. Rorschach and Virginia P. Rorschach, Petitioners, v. Commissioner of Internal Revenue, Respondent, 341 F.2d 567 (10th Cir. 1965)

Petitioner,¹  an attorney appearing pro se, seeks review of a decision of the Tax Court dismissing for lack of jurisdiction his attempt to appeal to that court from what he asserts to be a deficiency assessment lodged against him by the Commissioner for income tax for the year 1961. The order of dismissal entered by the Tax Court is premised upon a finding that petitioner was not a party to the Commissioner's assessment and consequently could not perfect an appeal. And, in turn, the finding was premised by a judicial admission to that effect made by the Commissioner in open court. We would term the instant appeal to be completely frivolous were it not tempered by petitioner's obvious sincerity and his persistent, although unwarranted, concern that he might be victimized in an administrative abyss.

Petitioner is, and was at all pertinent times, a resident of Oklahoma, and filed, with his wife Margaret, a timely and joint income tax return for 1961 with the District Director at the Tulsa, Oklahoma, office. Petitioner stated therein that his residence address and his business address were in Tulsa. He did, however, maintain a mailing address at 7918 Chevy Chase, Houston, Texas.

The Houston address is the residence of petitioner's son, Harold E. Rorschach, Jr., and his wife, Virginia. Rorschach, Jr. and his wife Virginia filed a timely and joint 1961 return with the District Director at Austin, Texas. Rorschach, Jr., is a consulting physicist and a member of the faculty at Rice Institute. On June 17, 1963, Mr. and Mrs. Rorschach, Jr., executed a power of attorney granting petitioner authority to act for them on any matter involving their federal income taxes for 1961 and requesting that copies of all communications relative thereto be sent to petitioner at 532 Kennedy Building, Tulsa, Oklahoma.

On October 25, 1963, through the Austin office of the District Director, a notice of deficiency for 1961 taxes was mailed to Mr. Harold E. Rorschach and Mrs. Virginia P. Rorschach, Husband and Wife, 7918 Chevy Chase, Houston, Texas. The accompanying schedule showed an adjustment in taxable income relative to a fellowship grant pertinent to the return of Rorschach, Jr. and not applicable to petitioner's return.

Because the applicable statute, 26 U.S.C. § 6212(b) (1), provides that a notice of deficiency must be "mailed to the taxpayer at his last known address * * *" petitioner argues that he became the designated taxpayer when the notice was addressed, in part, to Harold E. Rorschach (not Harold E. Rorschach, Jr.) and that neither the Commissioner's inadvertence nor the Commissioner's subjective intent are material to the case. Such argument, of course, never gets off the ground and ignores reality. However, assuming arguendo that any confusion or ambiguity arose from the notice as between the persons Harold E. Rorschach and Harold E. Rorschach, Jr., which, from an abundance of caution, would justify petitioner in taking a protective measure, he has now done so and has become completely immune from further shadows. The decision of the Tax Court, based upon the most firm of all grounds, a judicial admission, has found that he is not and cannot be subjected to any assessment by virtue of the October 25 notice.

Affirmed.