Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Robert M. MENAR and Linda K. Menar, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 88-7136.

United States Court of Appeals, Ninth Circuit.

Submitted June 21, 1989.* Decided June 23, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Robert and Linda Menar appeal the tax court's grant of the Commissioner's motion to dismiss their petition for redetermination for lack of jurisdiction on the ground that the Menars' petition was untimely filed. The tax court correctly found that Linda was not liable because she was not Robert's spouse during the tax years in question. They contend that the government violated their due process rights because IRS employees twice misrepresented that no notice of deficiency had been sent although one had been sent, and therefore, they were precluded from filing a timely petition for redetermination. We affirm.

The filing of a petition within the 90-day period prescribed by 26 U.S.C. § 6213 is a jurisdictional requirement which cannot be altered by equitable considerations. Healy v. Commissioner, 351 F.2d 602, 603 (9th Cir. 1965). Non-receipt of a notice of deficiency has no effect on its validity so long as it is sent to the taxpayers' last known address. 26 U.S.C. § 6212(b) (1); Mulvania v. Commissioner, 769 F.2d 1376, 1379 (9th Cir. 1985).

Here, the parties have stipulated that the statutory notice of deficiency was sent to the taxpayers' last known address. The statutory requirement of notice has therefore been satisfied. 26 U.S.C. § 6212. Moreover, the Menars have a constitutionally adequate remedy of paying the tax and then instituting a refund suit in district court. See Roat v. Commissioner, 847 F.2d 1379, 1383-84 (9th Cir. 1988).

Additionally, the Menars contend that the notice of deficiency is invalid as it is incorrectly addressed to Linda Menar rather than Mary Menar, Robert's former wife. However, the inclusion of a reference to another taxpayer which does not preclude delivery to the taxpayer does not invalidate a statutory notice of deficiency. Clodfetter v. Commissioner, 527 F.2d 754, 757 (9th Cir. 1975) cert. denied, 425 U.S. 979 (1976).

The Menars also contend that under 26 U.S.C. § 6212(b) (2) a duplicate original notice of deficiency should have been sent to Mary Menar, Robert Menar's former wife, because Mary Menar and Robert Menar filed joint returns for the tax years in issue. See Appellant's Brief at 17-18. We disagree. The tax court was not required to send a duplicate original to Mary Menar in order to notify Robert properly. Where a joint return is made, tax liability is joint and several. See 26 U.S.C. § 6013(d) (3). The Commissioner was therefore entitled to proceed separately against Robert Menar. See Garfinkel v. Commissioner, 67 TC 1028, 1030 (1977).

Finally, the Menars contend that a copy of the notice of deficiency should have been sent to their tax representative, Timothy Tuttle, because he had sent a power of attorney to the IRS. See Appellant's Brief at 6, 12. We disagree. Because the record reveals that Tuttle did not have a broad power of attorney, the IRS was not required to send all communications to Tuttle. See Mulvania v. Commissioner, 769 F.2d 1376, 1379 (9th Cir. 1985).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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