Unpublished Disposition, 935 F.2d 273 (9th Cir. 1989)

MEMORANDUM^* 

Petitioners appeal from an order of the tax court granting the Tax Commissioner's motion to dismiss a petition for redetermination of tax liability. We affirm.

STATEMENT OF FACTS

In 1987, the Commissioner of Internal Revenue (Commissioner) determined a deficiency in the reported income of petitioners Gordon and Cathy Bellis (Petitioners) for the year 1984. On May 29, 1987, a notice of deficiency was sent by certified mail to Petitioners' residence at 2504 Scott Street, San Francisco, California. The Postal Service delivered the deficiency notice to Petitioners' address on June 1, 1987. The "Delivery Notice or Receipt" form indicates that someone at the residence received the letter and signed the name Cathy Bellis to the receipt. The signature on the receipt is different than that acknowledged as Cathy Bellis' signature on various checks presented to the Tax Court.

In 1988, the IRS initiated collection activities with respect to Petitioners' unpaid 1984 deficiency. After receiving notice that a tax lien had been placed on their property, Petitioners filed a petition for redetermination of their tax liability on May 9, 1988.

On June 24, 1988, the Commissioner filed a motion with the Tax Court to dismiss the petition for lack of jurisdiction on the ground that the petition was not filed within 90 days of the date the deficiency notice was mailed, as required by 26 U.S.C. § 6213(a).

The Tax Court filed a memorandum opinion on June 8, 1989, granting the Commissioner's motion on the grounds that the notice of deficiency was mailed as statutorily required, and that a restricted delivery scheme was not required or envisioned by the Internal Revenue Code.

The formal order of dismissal was filed on June 13, 1989. It is from this order that Petitioners appeal.

DISCUSSION

"It is well-settled that to maintain an action in [the tax court] there must be a valid notice of deficiency and a timely filed petition." Leask v. C.I.R., 57 T.C.M. 1000, 1001 (1989). Section 6212(b) of the Internal Revenue Code explicitly provides that a "notice of deficiency ... if mailed to the taxpayer at his last known address, shall be sufficient." 26 U.S.C. § 6212(b). The fact that the notice is never actually received by the taxpayer does not make it invalid. See King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988); Mulvania v. Commissioner, 769 F.2d 1376, 1379 (9th Cir. 1985); United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied 469 U.S. 830 (1984); Leask, 57 T.C.M. at 1002 ("actual receipt is not required when [the Commissioner] meets the conditions of section 6212(a) and (b) (1)").

The parties in this case have stipulated to the fact that the Commissioner mailed the notice of deficiency by certified mail pursuant to 26 U.S.C. § 6212(a). "There is a strong presumption in the law that a properly addressed letter will be delivered, or offered for delivery, to the addressee." Zenco Engineering Co. v. C.I.R., 75 T.C. 318, 323 (1980). Petitioners' protestations to the contrary, the fact that the notice was allegedly never received is irrelevant in determining whether the 90-day period for filing a petition had expired.

Petitioners argue that a notice of deficiency under Sec. 6212 is invalid if not delivered. The law of this circuit squarely rejects this contention, and the cases cited by Petitioners in support of their argument are not on point.

In McKaig v. C.I.R., 51 T.C. 331 (1968), the notice of deficiency was not received by the taxpayer because a postal employee changed the address on the certified mail form and directed the notice to an undeliverable address. Here, by contrast, the certified mail was correctly addressed, and the certified mail receipt shows that the notice was delivered to Petitioners' residence. The McKaig holding is inapplicable unless the taxpayer presents some proof of error in delivery by the postal service. No evidence was presented to the tax court that would in any way indicate that the postal service erred in delivering the notice to petitioners' address. See also Leask, 57 T.C.M. at 1002 (McKaig holding inapplicable unless notice improperly addressed, or taxpayer presents proof of "error in postal delivery"). Because petitioners have not made any showing that the notice was improperly addressed, or that an error in postal delivery was made, but merely alleged that some unknown person forged petitioner Cathy Bellis' signature to the Delivery Notice, we cannot find that the mailing of the notice was not completed.

In Rogers v. C.I.R., 57 T.C. 711 (1972), the Tax Court held that mailing of a notice which was returned as undeliverable would not start the 90-day period for filing a petition. Id. at 712. In the instant case, the notice was delivered to Petitioners' address and not returned to the Commissioner as undeliverable, so the rule of Rogers is similarly inapplicable.

Finally, in Zenco Engineering Co. v. C.I.R., 75 T.C. 318 (1980), the tax court held that to prove mishandling by the postal service of a properly addressed and mailed notice of deficiency, "more is required than the bald testimony of a taxpayer ... that [he] never got the letter." Id. at 323. As noted supra, the parties stipulated that the notice was correctly addressed and properly mailed. It is doubtful that Petitioner Gordon's testimony that the signature on the receipt was not that of his wife, and that they never received the notice, is anything more than the "bald testimony" referenced in Zenco.

The tax court did not err in determining that it had no jurisdiction over the petition, because the 90-day period to file for redetermination had expired. The language of section 6212 and the law of this circuit are clear: a notice of deficiency is valid if properly mailed, and actual receipt by the taxpayer is not mandated.

A defendant must be afforded reasonable notice and an opportunity to be heard before his or her rights are determined with finality. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Eisenberg v. C.I.R., 47 T.C.M. 729, 730 (1983) (Tax Code notice provisions "were designed to afford a taxpayer notice of the Commissioner's determination and an opportunity to litigate the validity of such determination in this Court without first paying the claimed deficiency"). The method of notice must be reasonably likely to provide actual notice. " [A] notice of deficiency which does not satisfy the minimum statutory requirements for notice cannot reasonably be considered a notice of deficiency." Roskos v. C.I.R., 850 F.2d 514, 517 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989); see also O'Brien v. C.I.R., 62 T.C. 543, 550 (1974) ("If the mailing of a notice of deficiency to a taxpayer is to be any more than an empty gesture, there should be some reasonable expectation that the taxpayer will receive it.").

Petitioners argue that certified mail, absent restricted delivery, is not a reasonable procedure for providing notice of a tax deficiency, and therefore deprives them of due process.

There is nothing within the language of Sec. 6212 that requires restricted delivery. In fact, the statute expressly provides that certified mail is sufficient as a form of delivery. Neither the language of the statute, its legislative history, nor the cases interpreting Sec. 6212 have ever indicated that restricted delivery is constitutionally required. See, e.g., Eisenberg, 47 T.C.M. at 731 (citing 65 Cong.Rec. 2970 (1924)) (statute does not require that notices be sent certified mail with return receipt requested).

This circuit has held that the use of certified or registered mail to the taxpayer's last known address "give [s] the notice great potential to reach the taxpayer." Roskos, 850 F.2d at 517.

Regarding the constitutional requirements of notice, Cohen v. United States, 297 F.2d 760 (9th Cir.), cert. denied, 369 U.S. 865 (1962), held, " [W]e find no constitutional weakness in the use of the authorized method of sending the 90-day letter, even in those cases where it may not actually be received." Id. at 772. Cohen further noted that, unlike Mullane, petitioners rights would not be totally cut off by the act of denying a late petition.

Failure to petition the [Tax Court] within 90 days of the mailing of the letter does deprive the taxpayer of a privilege, namely, withholding payment of the tax pending determination of the validity and correctness of the assessment by the [Tax Court], and litigating the matter before the [Tax Court]. But it does not deprive him of all right to contest the validity or correctness of the assessment; he can still do this by paying the tax, filing a claim for refund, and if that be denied, suing in the District Court or Court of Claims.... [Mullane et al.] deal with the cutting off of all rights, not of one of two alternative remedies provided to the taxpayer by the Congress as a matter of grace.

Cohen, 297 F.2d at 772 (citations omitted).

The cases cited by Petitioners are inapposite, and do not support the contention that the current system of notice deprived Petitioners of their due process rights. The use of certified mail without restricted delivery for notices of tax deficiency does not violate due process.

Petitioners also argue that the postal service's current system of certified mail delivery violates equal protection, because no identification is required when certified mail is delivered to the taxpayer's address, but picture identification is required if the same mail is collected at the post office. Petitioners cite us to no legal authority that would support this contention.

The general rule of equal protection law is that "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). This rule gives way when the government action bases disparate treatment of individuals on a suspect or quasi-suspect classification. Id. Because no suspect classifications have been alleged here, we apply a rational basis standard of review.

The postal service has a rational basis for requiring that identification be presented to collect mail from the post office, but not at one's residence, as it is fair to assume that those at a residence live there and have a right to collect mail there. Petitioners' argument therefore lacks merit.

CONCLUSION

The Tax Court did not err in determining that it had no jurisdiction over the petition for redetermination of liability. The notice of deficiency was sent in compliance with 26 U.S.C. § 6212, and this court has repeatedly held that if the notice is properly sent, lack of actual receipt does not invalidate the notice. The system of non-restricted delivery certified mail does not violate Petitioners' due process rights, and the postal system's requirements for showing identification do not violate equal protection.

AFFIRMED.