Gary Snell, Petitioner-appellant, v. Commissioner of Internal Revenue Service, Respondent-appellee, 50 F.3d 16 (9th Cir. 1995)

MEMORANDUM^** 

Gary Snell appeals the tax court's dismissal of his petition for redetermination of a tax deficiency for lack of jurisdiction. The tax court held that Snell's petition was untimely. Snell contends that the tax court erred because the Commissioner of the Internal Revenue Service ("Commissioner") did not send the notice of deficiency to Snell's "last known address." We have jurisdiction under 26 U.S.C. § 7482(a) and affirm.

We review the tax court's dismissal for lack of jurisdiction de novo. Abrams v. Commissioner, 814 F.2d 1356, 1357 (9th Cir. 1987) (per curiam). We review the issue of whether a notice of deficiency was mailed to a taxpayer's last known address for clear error. King v. Commissioner, 857 F.2d 676, 678-79 (9th Cir. 1988).

Under 26 U.S.C. § 6212, once the Commissioner determines a tax deficiency, he is authorized to send a notice of the deficiency to the taxpayer's last known address by certified or registered mail. See 26 U.S.C. §§ 6212(a) & (b) (1). The taxpayer has ninety days from the date the notice of deficiency is mailed in which to file a petition for redetermination of the deficiency in tax court. Id. Sec. 6213(a). The ninety-day period begins on the day the notice of deficiency is mailed, regardless of when or if the taxpayer actually receives it. Williams v. Commissioner, 935 F.2d 1066, 1067 (9th Cir. 1991). The timely filing of a petition with the tax court is jurisdictional. Shipley v. Commissioner, 572 F.2d 212, 213 (9th Cir. 1977) (per curiam).

Although the Commissioner must "exercise reasonable diligence in ascertaining the taxpayer's correct address," Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd, 538 F.2d 335 (9th Cir. 1976), he may rely on the address given "on [the taxpayer's] most recent return, unless the taxpayer communicates to the IRS 'clear and concise' notice of a change of address." United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 (1984) (citations omitted).

From July 1988 to August 1991, Snell was a California state prisoner incarcerated at the Vacaville Correctional Facility. On or about August 17, 1988, revenue agent David Sanchez became aware of Snell's incarceration through information provided by an unidentified third party. On March 30, 1989, the IRS received Snell's 1987 tax return. Although Snell was incarcerated at the time he mailed his 1987 tax return, he listed his address as: P.O. Box 223118, Carmel, California 93322. On October 5, 1989, the Commissioner sent by certified mail duplicate notices of deficiency for the taxable year of 1985 to (1) the Carmel P.O. Box address provided by Snell on his most recent tax return, and (2) 30980 Aurora Del Mar, Carmel Highlands, California 93923, the address of Snell's residence prior to being incarcerated.

Snell contends that the Commissioner was not entitled to rely on these addresses because the Commissioner was aware that Snell was confined in prison at the time he mailed the notice of deficiency. Snell, however, failed to give the IRS notice that he wished correspondence to be sent to the Vacaville prison. In addition, Snell used the Carmel P.O. Box address on the tax return he mailed from prison only seven months before the IRS mailed the notice of deficiency. Moreover, Snell maintained the Carmel P.O. Box address while he was incarcerated and instructed his executive secretary to pick up his mail from the box on a regular basis. She did so, but following his instructions did not pick up registered or certified mail.

In light of these facts, we agree with the tax court that the IRS was not required to rely on the third party's notice of Snell's address change. See Zolla, 724 F.2d at 808 (If the IRS was required to rely on third party information "where the taxpayer himself did not communicate the change of address to the IRS, the taxpayer would not be estopped from arguing that a change of address noted by the IRS was incorrect."); see also Olsen v. United States, 694 F. Supp. 1484, 1487 (D. Or. 1988) (Commissioner not obligated to inquire whether tax form filed by third party reflected taxpayer's new address). The Commissioner properly relied on the address provided by Snell on his most recent return prior to the mailing of the notice of deficiency. See Zolla, 724 F.2d at 811. Accordingly, the tax court did not clearly err by determining that a notice of deficiency was mailed to Snell's last known address. See Williams, 935 F.2d at 1068. Because Snell did not file his petition for redetermination until May 14, 1992, the petition was untimely and the tax court did not err by dismissing the petition for lack of jurisdiction.¹  See 26 U.S.C. § 6213(a), (c); Shipley, 572 F.2d at 213.

AFFIRMED.