Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1988)

MEMORANDUM^** 

Karen E. Noel and Robert E. Noel appeal the tax court's denial of Karen Noel's motion to dismiss her from the action based on the Internal Revenue Service's ("IRS") failure to send a duplicate of the joint notice of deficiency to her last known address pursuant to 26 U.S.C. § 6212(b) (2). We have jurisdiction pursuant to 26 U.S.C. § 7481(a) (1) and affirm.

* FACTS

The Noels filed a joint return for tax year 1985 which listed separate addresses for both. In 1986, the Noels were divorced. Subsequently, Robert Noel notified the IRS of a change in his address to 1233 California Street, San Francisco, California. No change of address was submitted by Karen Noel, and she apparently never resided at the California Street address.

On September 15, 1988, the IRS mailed a joint notice of deficiency to the California Street address. No copy of this notice was sent to Karen Noel.

On December 14, 1988, a timely petition was filed in the tax court seeking a redetermination of tax deficiencies and penalties for tax year 1985. The petition stated that Robert Noel, an attorney, was appearing "pro per" and that Karen Noel was represented "by her undersigned attorney." The petition was signed "Robert E. Noel, in proper and as attorney for petitioner, Karen G. Noel." Karen Noel, through her attorney Robert Noel, then filed a motion to dismiss the action as to her based on the IRS's failure to send her a copy of the notice of deficiency to her last known address pursuant to 26 U.S.C. § 6212(b) (2). The tax court denied the motion. Taxpayers timely petition this court for review.

II

MERITS

Taxpayers contend that the notice of deficiency is invalid as to Karen Noel because the IRS did not send a copy to her last known address. This contention lacks merit.

Generally, to be valid, a notice of deficiency must be sent to the taxpayer's last known address. See 26 U.S.C. § 6212(b) (1). We have held, however, that a notice of deficiency is valid "if it is received in sufficient time to permit the taxpayer, without prejudice, to file a petition" in the tax court. Mulvania v. Commissioner, 769 F.2d 1376, 1378 (9th Cir. 1985); see also King v. Commissioner, 857 F.2d 676, 679 n. 4 (9th Cir. 1988) (a notice of deficiency is "valid if it is actually received by the taxpayer in sufficient time to make a timely petition, or if the taxpayer otherwise learns of the notice and acknowledges it by making a timely petition"); Clodfelter v. Commissioner, 527 F.2d 754, 757 (9th Cir. 1975) ("if mailing results in actual notice without prejudicial delay (as clearly was the case here), it meets the conditions of Sec. 6212(a) no matter to what address the notice successfully was sent"), cert. denied, 425 U.S. 979 (1976).

Here, Karen Noel, represented by her attorney Robert Noel, timely filed a petition for review in the tax court. As the tax court observed, " [t]he appearance by Robert E. Noel on behalf of Karen Noel has not been disavowed by the latter, and continues to the present time." Given these circumstances, the tax court did not err in denying Karen Noel's motion to dismiss for lack of jurisdiction based on the IRS's failure to send her a copy of the notice of deficiency to her last known address pursuant to 26 U.S.C. § 6212(b) (2). See Mulvania, 769 F.2d at 1378; McKay v. Commissioner, 886 F.2d 1237, 1239 (9th Cir. 1989) (actual notice without prejudicial delay ... meets the conditions of & 6212(a) (quotations omitted)).

AFFIRMED.