William I. Tenzer v. Commissioner of Internal Revenue

285 F.2d 956 61-1 USTC P 9186 William I. TENZER, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16513. United States Court of Appeals Ninth Circuit. Dec. 30 1960. Ernest R. Mortenson, Pasadena, Cal., for petitioner. Howard A. Heffron, Acting Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Charles B. E. Freeman, Attys., Dept. of Justice, washington, D.C., for respondent. Before CHAMBERS and KOELSCE, Circuit Judges, and BOLDT, District judge. CHAMBERS, Circuit Judge. 1 Tenzer contends that he has a right to litigate in the Tax Court a deficiency determination on his 1952 federal income taxes because he filed there a petition for review within 90 days 1 after personal service 2 upon him of a copy of the Commissioner's notice which was adverse to him. This notice is commonly called the 90-day letter. But the Commissioner says, 'No.' He relies on the fact that the collector, 28 days before the personal service, had placed in the mail 3 the same notice addressed to Tenzer at his correct address in Los Angeles. 4 The Commissioner counts the 90-day period to petition in Tax Court from the date of mailing the notice. However, the taxpayer never receipted for the…

Tenzer contends that he has a right to-litigate in the Tax Court a deficiency determination on his 1952 federal income-taxes because he filed there a petition for review within 90 days 1 after personal service 2 upon him of a copy of the Commissioner’s notice which was adverse to-him. This notice is commonly called the 90-day letter. But the Commissioner-says, “No.” He relies on the fact that-the collector, 28 days before the personal service, had placed in the mail 3 the same-notice addressed to Tenzer at his correct address in Los Angeles. 4 The Commissioner counts the 90-day period to petition in Tax Court from the date of' mailing the notice. However, the taxpayer never receipted for the notice, which was; sent by registered mail, and in- due: course it was returned to the district collector. If the postman tendered the letter to Tenzer, the record does- not so show.

The Tax Court has agreed with the-Commissioner that the petition for review came too late and has dismissed' for want of jurisdiction.

We have a difficult statute or statutes-to interpret. The taxpayer relies on Sections 6212 and 6213 of the Revenue-Code of 1954. The Commissioner says-, the question should be…

(dissenting).

Statutory deficiency notice for the tax year 1952 was posted by registered mail to petitioner’s correct address on June 26, 1958. The postal service failed to deliver the notice letter, which some time later jvas returned to the Commissioner. On July 24, 1958 a copy of the deficiency notice bearing date of June 26, 1958 was delivered to petitioner in person.

Under the statutes and decisions cited in the majority opinion, registered mailing to a proper address of the 90-day letter is valid constructive notice to the taxpayer, whether or not the letter is actually received by the taxpayer. The period within which the taxpayer may petition for review in the tax court commences with such mailing date.

It may be that a constructive deficiency notice effective as of its mailing date is voided or superseded by a later new notice, whether constructively or personally served. It seems to me that a new notice does not result merely from delivery of a copy of the mailed notice. Nothing more than that occurred in the present case. Personal delivery to the taxpayer of a copy of the mailed notice bearing date of the mailing thereof although not specified as such, did not…