Unpublished Disposition, 844 F.2d 793 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 793 (9th Cir. 1986)

Marvin WEISS and Pauline Weiss, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 87-7115.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 22, 1988.* Decided April 6, 1988.

Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.


MEMORANDUM** 

Marvin and Pauline Weiss appeal a tax court order dismissing as untimely their petition for redetermination of a tax deficiency. The Weisses contend the Internal Revenue Service (IRS) did not mail a notice of deficiency in tax payments to their "last known address," and therefore, the statutory period within which to file their petition for redetermination was tolled until they actually received notice, rather than beginning to run on the date the petition was mailed. The IRS had sent notice to the Weisses' home address contrary to the Weisses' request that all correspondence be mailed to their attorney.

We affirm the tax court. The Weisses' actual receipt of the deficiency notice at their home address did not result in prejudice due to delay in delivery. Thus, the Weisses had sufficient notice of their claimed tax deficiency under 26 U.S.C. § 6212(a) to start the 90 day period running on the date the notice was mailed.

On March 28, 1986, a notice of deficiency as required by 26 U.S.C. § 62121  was mailed by the IRS to the Weisses' home address in West Covina, California by certified mail. On April 1, 1986, the Weisses' daughter signed a receipt for the certified notice. It is undisputed that the Weisses received the notice within a week thereafter. On June 30, 1986, 94 days following mailing of the statutory notice, the IRS received, via Federal Express, the Weisses' petition for redetermination of the deficiency.2  The petition was dated June 20, 1986. The tax court dismissed the petition for lack of subject matter jurisdiction because receipt of the Weisses' petition fell outside of the 90 day period prescribed by 26 U.S.C. § 6213(a).

The Weisses contend they gave proper notice to the IRS that all correspondence be sent to them at their attorney's offices. They argue that, because the notice of deficiency was sent to their home address rather than their "last known address," the 90 day statutory period should not start running until notice was actually received, rather than when it was mailed by the IRS. This contention lacks merit.

Under 26 U.S.C. § 6213(a), the IRS must send notice of a deficiency before it may assess, collect, or reduce to judgment income tax liabilities. Title 26 U.S.C. § 6212(b) (1) provides that the notice of deficiency, "... if mailed to the taxpayer at his last known address, shall be sufficient ..." This is so even where notice is not actually received by the taxpayer. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982); United States v. Voorhies, 658 F.2d 710, 713, n. 4 (9th Cir. 1981). A taxpayer has 90 days from the date of mailing of the notice of deficiency to petition the tax court for a redetermination. 26 U.S.C. § 6213(a).3 

These provisions provide the IRS with a safe harbor by which a notice of deficiency may be sent to a taxpayer. If the notice is sent certified or registered mail to the taxpayer's last known address, the notice is proper and the 90 day period within which a taxpayer may file his or her petition begins to run. However, section 6212 provides only one method by which service may be accomplished. Other methods may also be used, as long as actual receipt by the taxpayer results. Clodfelter v. Commissioner of Internal Revenue, 527 F.2d 754, 757 (9th Cir. 1975), cert. denied, 425 U.S. 979 (1976); Boren v. Riddell, 241 F.2d 670, 672 (9th Cir. 1957).

The Weisses do not argue that the notice sent to their home address was not received or that insufficient time remained within which to file a petition. In fact, they concede that they received actual notice of the deficiency in the first week in April, nearly three months before their petition to the tax court was due. They merely argue that they provided the IRS with clear and concise notice of a change of address, both orally and in writing, requesting all documents be sent to their attorney. As discussed below, this contention is irrelevant.

First, the Weisses' petition for redetermination itself states, " [a]t all times mentioned herein, Marvin H. and Pauline E. Weiss (petitioners) maintained their legal residence at 316 South Monte Verde Drive, in West Covina, California 91791 ..." This was the address to which the notice of deficiency was sent. There is no contention in the petition that the notice of deficiency was not sent to their "last known address."

Second, the law is clear that where a taxpayer actually receives notice of a tax deficiency within a sufficient time to permit him/her, without prejudice, to file a petition, the fact that the notice is erroneously addressed is irrelevant. Mulvania v. Commissioner of Internal Revenue, 769 F.2d 1376, 1378 (9th Cir. 1985); Clodfelter, 527 F.2d at 757 ("... if mailing results in actual notice without prejudicial delay ... it meets the conditions of Sec. 6212(a) no matter to what address the notice successfully was sent."). Thus, even if the IRS incorrectly mailed notice to the Weisses' home rather than to their attorney, the resulting brief delay did not create any prejudice to the Weisses, because ample time remained following receipt of the IRS' notice of deficiency in which to file their petition.

Furthermore, section 6213 clearly states that it is the date the notice of deficiency is mailed which commences running of the statutory period. This is true regardless of when the taxpayer receives actual notice, unless the lateness of receipt results in prejudice. Mulvania, 769 F.2d at 1379; Wallin v. Commissioner of Internal Revenue, 744 F.2d 674 (9th Cir. 1984) (statutory period tolled when taxpayer failed to receive notice until expiration of entire 90 day period); Clodfelter, 527 F.2d at 757. As discussed above, the Weisses were not prejudiced. Because the 90 day period prescribed by 26 U.S.C. § 6213(a) began to run on March 28, 1986, the Weisses' filing of their petition on June 30, 1986 was untimely.4 

The dismissal by the tax court is AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

26 U.S.C. § 6212 provides, in pertinent part:

(a) In general.--If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 41, 42, 43, 44, or 45, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.

(b) (1) Income and gift taxes and certain excise taxes.--In the absence of notice to the Secretary under section 6903 of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax ... if mailed to the taxpayer at his last known address, shall be sufficient ...

 2

The Weisses state in their brief that their petition was filed with the IRS on June 26, 1986. Although the Weisses contend they sent their petition on the 90th day after mailing of the notice of deficiency, the tax court did not receive the petition until the 94th day, June 30, 1986. Because the Weisses sent the petition by Federal Express, 26 U.S.C. § 7502, which provides that a petition is timely if postmarked by the United States Postal Service on or before the 90th day, is inapplicable. Lindemood v. Commission of Internal Revenue, 566 F.2d 646 (9th Cir. 1977) (petition mailed by private postage meter is not postmarked by postal employee for purposes of 26 U.S.C. § 7502)

 3

26 U.S.C. § 6213(a) provides, in part:

(a) Time for filing petition and restriction on assessment.--Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency....

 4

The Weisses are not completely foreclosed from litigating the merits of their claim, as they may pay the amount owed and subsequently bring suit in district court. Thomas v. United States, 755 F.2d 728, 729-30 (9th Cir. 1985)