Gregory W. McKay v. Commissioner of the Internal Revenue Service

886 F.2d 1237 64 A.F.T.R.2d 89 -5712, 58 USLW 2255 , 89-2 USTC P 9574, 28 Fed. R. Evid. Serv. 903 Gregory W. McKAY, Petitioner, v. COMMISSIONER OF the INTERNAL REVENUE SERVICE, Respondent. No. 88-7056. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1988. Decided Oct. 6, 1989. Gregory W. McKay, Beverly Hills, Cal., pro se. Gary R. Allen, Tax Div., Dept. of Justice, Washington, D.C., for respondent. Appeal from a Decision of the United States Tax Court. Before BROWNING, SCHROEDER and NOONAN, Circuit Judges. JAMES R. BROWNING, Circuit Judge: 1 On April 7, 1977 the IRS issued a notice of deficiencies and fraud penalties with respect to appellant's 1972 and 1973 income tax returns. Some eight years later, appellant filed a pro se petition for redetermination. The tax court dismissed the petition as untimely under 26 U.S.C. Sec. 6213 (a), which requires that such a petition be filed "[w]ithin 90 days ... after the notice of deficiency authorized in section 6212 is mailed." 2 Appellant claims he did not receive the notice of deficiency. The tax court found appellant received a copy of the notice from his attorney, Herbert D. Sturman, in ample time to file a…

On April 7, 1977 the IRS issued a notice of deficiencies and fraud penalties with respect to appellant’s 1972 and 1973 income *1238 tax returns. Some eight years later, appellant filed a pro se petition for redetermination. The tax court dismissed the petition as untimely under 26 U.S.C. § 6213 (a), which requires that such a petition be filed “[wjithin 90 days ... after the notice of deficiency authorized in section 6212 is mailed.”

Appellant claims he did not receive the notice of deficiency. The tax court found appellant received a copy of the notice from his attorney, Herbert D. Sturman, in ample time to file a timely petition for review in the tax court. That factual finding is not clearly erroneous. See Mayors v. Commissioner, 785 F.2d 757, 759 (9th Cir.1986). Although IRS records of mailing and receipt of such notices were destroyed after 5 years, appellant’s attorney testified he received the notice and it was and remained his normal practice to personally deliver such notices to his clients within a few days of receipt. The tax court credited Sturman’s testimony, noting that he was a credible and forthright witness, and that his testimony was uncontroverted. Such…

dissenting:

The majority’s decision in this case will make the administration of the law for the future more burdensome.

Congress has declared that when the IRS, by appropriate means, sends a notice of deficiency to the taxpayer’s last known address, the notice is effective regardless of whether the taxpayer actually receives it. See 26 U.S.C. § 6212 (b)(1) (1982); United States v. Zoila, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 , 105 S.Ct. 116 , 83 L.Ed.2d 59 (1984). An IRS mailing of a notice to an attorney can be as effective as a mailing to the taxpayer’s “last known address,” but only when the taxpayer requests that all communications be mailed directly to the attorney. See D'Andrea v. Commissioner, 263 F.2d 904, 907 (D.C.Cir.1959); Reddock v. Commissioner, 72 T.C. 21, 24 (1979). A limited power of attorney, requesting that copies of correspondence be sent to the taxpayer’s attorney or other agent, does not effect a change of the taxpayer’s last known address, and notice to the attorney does not constitute valid notice to the taxpayer. See McDonald v. Commissioner, 76 T.C. 750, 753 (1981); Houghton v. Commissioner, 48 T.C. 656, 661 (1967).

In our court’s…