The opinion
DEBORAH L. SMITH, PETITIONER v. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT
Docket No. 12605–08. Filed February 28, 2013.
In 2007 P and her daughters moved from San Francisco to
Canada and became permanent residents of Canada. P contin-
ued to own a home and maintained a post office box in San
Francisco. In December 2007 P returned to San Francisco to
48
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(48) SMITH v. COMMISSIONER 49
move her remaining furniture to Canada. On Dec. 27, 2007,
while P was in San Francisco, R mailed a deficiency notice to
P’s San Francisco post office box. P did not pick up the notice
and on Jan. 8, 2008, returned to Canada. On May 2, 2008, P
received a copy of the notice, and on May 23, 2008, she filed
a petition with the Court. R filed a motion to dismiss for lack
of jurisdiction and contends that P’s petition was not timely
filed. P objects and contends that, pursuant to I.R.C. sec.
6213(a), she is entitled to 150, rather than 90, days to file a
petition. Held: Pursuant to I.R.C. sec. 6213(a), P’s petition
was timely filed within the 150-day period.
William Edward Taggart, Jr., for petitioner.
Randall E. Heath and Thomas R. Mackinson, for
respondent.
FOLEY, Judge: The issue for decision is whether petitioner,
pursuant to section 6213(a), had 90 or 150 days to file her
petition with this Court. 1
FINDINGS OF FACT
Petitioner and her husband untimely filed a joint Federal
income tax return relating to 2000. Subsequently, the
Internal Revenue Service selected petitioner and her hus-
band’s 2000 return for examination. On November 4, 2004,
petitioner and her husband signed a Form 872–I, Consent to
Extend the Time to Assess Tax As Well As Tax Attributable
to Items of a Partnership, relating to 2000. On October 31,
2006, petitioner and her husband signed Forms 872–I
relating to 1997 and 2000. On each form they listed an
address in Tiburon, California.
Prior to August 2007 petitioner resided in San Francisco,
California. In August 2007 petitioner and her two daughters
moved to Vancouver, British Columbia, Canada. In Sep-
tember 2007 petitioner rented a furnished apartment in Van-
couver and her daughters enrolled in, and began attending,
a school in Vancouver (Vancouver school). Soon thereafter
petitioner and her daughters applied for, and were granted,
permanent residency in Canada. Petitioner also applied for,
and received, a Canadian driver’s license. Petitioner contin-
ued to own her San Francisco home; maintained a post office
1 Unless otherwise indicated, all section references are to the Internal
Revenue Code as amended and in effect for the year in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
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50 140 UNITED STATES TAX COURT REPORTS (48)
box in San Francisco (P.O. box); and occasionally returned to
the United States to visit family.
In December 2007 petitioner leased an unfurnished single-
family residence in Vancouver for herself and her daughters.
On or about December 24, 2007, she returned to San Fran-
cisco to supervise the transportation of her furniture to Van-
couver and to arrange for the rental of her San Francisco
home. On December 27, 2007, respondent issued petitioner
and her husband, and mailed to their P.O. box, a deficiency
notice relating to 2000 (notice). 2 In the notice respondent
stated that petitioner and her husband had until March 26,
2008 (i.e., 90 days), to file a Tax Court petition. In addition,
respondent determined that petitioner and her husband were
liable for an $8,911,858 deficiency, a $2,044,590 section
6651(a)(1) addition to tax, and a $1,782,372 section 6662(a)
accuracy-related penalty.
On December 28, 2007, petitioner’s moving company began
transporting her furniture to Vancouver. The notice was
delivered to petitioner’s P.O. box on December 31, 2007, but
she did not pick it up. She returned to Vancouver on January
8, 2008; received a copy of the notice on May 2, 2008; and
on May 23, 2008 (i.e., 148 days after the notice’s mailing
date), while residing in Vancouver, filed a petition with the
Court.
On March 3, 2009, respondent sent petitioner’s counsel a
letter requesting additional documentation relating to peti-
tioner’s whereabouts on the notice’s mailing date. On April
8, 2009, petitioner’s counsel faxed respondent photocopies of
petitioner’s and her daughters’ Canadian permanent resident
cards, petitioner’s Canadian driver’s license, a canceled
October 2007 rent check, and a letter from the Vancouver
school verifying that petitioner’s daughters began attending
the school in September 2007. In a letter sent to petitioner
on April 10, 2009, respondent emphasized the importance of
petitioner’s physical location during December 2007 and
stated that the documentation petitioner provided was not
conclusive.
On July 24, 2009, the Court filed respondent’s motion to
dismiss for lack of jurisdiction, in which respondent contends
2 The P.O. box was petitioner’s mailing address as reflected on her 2006
Federal income tax return.
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(48) SMITH v. COMMISSIONER 51
that the petition was not filed within the time prescribed by
section 6213(a). The Court, on August 20, 2009, filed peti-
tioner’s objection to respondent’s motion. On September 1,
2009, the Court filed petitioner’s supplemental opposition to
respondent’s motion.
OPINION
This Court’s jurisdiction to redetermine a deficiency
depends on the issuance of a valid notice of deficiency and a
timely filed petition. 3 See secs. 6212(a), 6213(a), 6214(a);
Rule 13(a), (c); Levitt v. Commissioner, 97 T.C. 437, 441
(1991); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Section
6213(a) provides that a petition for redetermination of a defi-
ciency is timely if it is filed within 90 days (90-day rule) or,
if the notice is ‘‘addressed to a person outside the United
States’’, 150 days (150-day rule) after the notice’s mailing
date. Petitioner filed her petition 148 days after the notice’s
mailing date. Respondent contends that the petition is
untimely and the 90-day rule is applicable because petitioner
was in the United States when the notice was mailed and
delivered. Petitioner contends that the notice was ‘‘addressed
to a person outside the United States’’ and the 150-day rule
is applicable because she was a resident of Canada (i.e.,
when the notice was mailed and delivered), received the
notice in Canada, and experienced delay. We agree and hold
that petitioner is entitled to the 150-day period.
The phrase ‘‘addressed to a person outside the United
States’’ is ambiguous, and the Court has consistently con-
strued it broadly. See Looper v. Commissioner, 73 T.C. 690,
694 (1980); Lewy v. Commissioner, 68 T.C. 779, 781–782
(1977). Where a statute is capable of various interpretations,
we are inclined to adopt a construction which will permit the
Court to retain jurisdiction without doing violence to the
statutory language. See Lewy v. Commissioner, 68 T.C. at
781, 783–786 (holding that the 150-day rule is applicable to
a foreign resident who is in the United States when the
notice is mailed, but outside the United States when the
notice is delivered); see also Levy v. Commissioner, 76 T.C.
3 Petitioner bears the burden of proving that this Court has jurisdiction.
See Patz Trust v. Commissioner, 69 T.C. 497, 503 (1977); see also Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).
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52 140 UNITED STATES TAX COURT REPORTS (48)
228, 231–232 (1981) (holding that the 150-day rule is
applicable to a U.S. resident who is temporarily outside of
the country when the notice is mailed and delivered); Looper
v. Commissioner, 73 T.C. at 694–695 (holding that the 150-
day rule is applicable where a notice is mailed to an address
outside the United States); Hamilton v. Commissioner, 13
T.C. 747, 754 (1949) (holding that the 150-day rule is
applicable to a foreign resident who is outside the United
States when the notice is mailed and delivered). Our holding
is consistent with our jurisprudence, is a practical construc-
tion of section 6213(a), and leaves the statutory language
unscathed.
I. Foreign Residents
The 150-day rule applies when the notice is ‘‘addressed to
a person outside of the United States.’’ See sec. 6213(a).
Where the Court has determined the applicability of the 150-
day rule, the critical inquiry has generally been whether the
taxpayer fell within the categories of taxpayers Congress
intended to benefit: foreign residents or U.S. residents
temporarily absent from the country. See Malekzad v.
Commissioner, 76 T.C. 963, 970 (1981); Levy v. Commis-
sioner, 76 T.C. at 231; Lewy v. Commissioner, 68 T.C. at 782.
In Hamilton, the Court held that a U.S. citizen who
resided in a foreign country was a person ‘‘outside’’ of the
United States. Hamilton v. Commissioner, 13 T.C. at 748,
754 (construing the predecessor to the current section 6213).
The Court in Hamilton also held that the 150-day rule was
not applicable to a U.S. resident who was temporarily absent
from the country. 4 Id. The Court concluded that Congress, in
enacting the 150-day rule, ‘‘was legislating with respect to
taxpayers regularly residing and carrying on their business
and professional activities in places outside the States of the
Union’’. Id. at 752. In subsequent cases the Court recognized
that ‘‘[i]t is more likely that delay will occur in these tax-
payers’ receiving the notice of deficiency, and certainly more
4 In Mindell v. Commissioner, 200 F.2d 38, 39 (2d Cir. 1952), the Court
of Appeals for the Second Circuit rejected this holding and concluded that
the 150-day rule was applicable to U.S. residents temporarily absent from
the country. See also Estate of Krueger v. Commissioner, 33 T.C. 667, 668
(1960) (adopting the reasoning of the Court of Appeals for the Second Cir-
cuit in Mindell); see infra pt. II.
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(48) SMITH v. COMMISSIONER 53
time is needed to file a petition because of the physical pres-
ence of these taxpayers outside the United States.’’ See
Camous v. Commissioner, 67 T.C. 721, 735 (1977); see also
Degill Corp. v. Commissioner, 62 T.C. 292, 297 (1974).
In Hamilton, the Court mused that a foreign resident
‘‘who, through fortuitous circumstance, physically happened
to be in one of the States of the Union on the particular day
the deficiency notice was mailed’’ would be entitled to the
150-day period and that any other interpretation of the 150-
day rule would not be reasonable. See Hamilton v. Commis-
sioner, 13 T.C. at 753–754. The Court in Lewy v. Commis-
sioner, 68 T.C. at 784–786, confronted this situation. In
Lewy, a foreign resident, in the United States on the notice’s
mailing date, left the country the following day and experi-
enced delay in receiving the notice. Id. at 779–780. The
Commissioner contended that the taxpayer’s physical pres-
ence in the United States precluded the applicability of the
150-day rule. Id. at 782. The Court rejected this contention
as ‘‘excessively mechanical, unrelated to the section’s basic
purpose, and unsupported by case law.’’ Id. at 782, 784
(stating that the Court has ‘‘firmly and unequivocally
rejected barren haggling over dialectical distinctions in the
jurisdictional area’’). The Court held that the taxpayer, a for-
eign resident, was ‘‘precisely the type of taxpayer the 150-day
rule * * * [was] designed to assist’’. 5 See id. at 782–784.
In sum, a foreign resident’s status as a person ‘‘outside of
the United States’’ is not vitiated by the resident’s brief pres-
ence in the United States on the notice’s mailing date. See
id. at 782–783 (stating that ‘‘ephemeral presence at the
moment the deficiency notice is mailed is not controlling’’).
Similarly, a foreign resident may be ‘‘a person outside the
5 The Court reviewed Mindell v. Commissioner, 200 F.2d 38, Estate of
Krueger v. Commissioner, 33 T.C. 667, Cowan v. Commissioner, 54 T.C.
647 (1970), Degill Corp. v. Commissioner, 62 T.C. 292 (1974), and Camous
v. Commissioner, 67 T.C. 721 (1977), and observed:
‘‘the crucial criterion to be gleaned from the decided cases is whether the
‘person’ is physically located outside the United States so that the notice
of deficiency mailed to its United States address will be delayed in
reaching it in a foreign country * * * and thereby hamper its ability to
adequately respond by filing a petition to litigate its case in this Court.
* * *’’ [Lewy v. Commissioner, 68 T.C. 779, 783 (1977) (quoting Degill
Corp. v. Commissioner, 62 T.C. at 299).]
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54 140 UNITED STATES TAX COURT REPORTS (48)
United States’’ even if the foreign resident is in the United
States on the notice’s delivery date (i.e., if the taxpayer ulti-
mately receives notice several months later while in the for-
eign country).
II. U.S. Residents Temporarily Absent From the Country
The 150-day rule is also intended to provide relief to U.S.
residents temporarily absent from the country. See Levy v.
Commissioner, 76 T.C. at 231; Lewy v. Commissioner, 68 T.C.
at 783–784; Estate of Krueger v. Commissioner, 33 T.C. 667,
668 (1960). In Mindell v. Commissioner, 200 F.2d 38, 39 (2d
Cir. 1952), a U.S. resident was temporarily absent from the
country when the notice was mailed and delivered. The
Court of Appeals for the Second Circuit rejected the Tax
Court’s holding in Hamilton that the 150-day rule was not
applicable to U.S. residents who were temporarily absent
from the country. See Mindell v. Commissioner, 200 F.2d at
39. In holding that the 150-day rule was applicable to such
individuals, the Court of Appeals held that the critical
inquiry was whether the taxpayer experienced delay in the
receipt of the notice. See id. In Estate of Krueger v. Commis-
sioner, 33 T.C. at 667–668, a U.S. resident was in Japan on
the notice’s mailing date. We adopted the broader application
of the 150-day rule as set forth in Mindell but did not reject
the holding or reasoning in Hamilton relating to the applica-
tion of the 150-day rule to foreign residents. Estate of
Krueger v. Commissioner, 33 T.C. at 668; see also Lewy v.
Commissioner, 68 T.C. at 786 (stating that Estate of Krueger
broadened the Court’s holding in Hamilton and ‘‘expanded
the class of persons entitled to file within 150 days’’).
In Levy v. Commissioner, 76 T.C. at 229–230, U.S. resi-
dents departed on the notice’s mailing date for a five-day trip
to Jamaica, the notice was delivered to their residence while
they were in Jamaica, and their absence resulted in delayed
receipt of the notice. The Court held that the 150-day rule
was applicable. Id. at 231–232; cf. Malekzad v. Commis-
sioner, 76 T.C. at 971–972 (holding that the 150-day rule was
not applicable to U.S. residents who were in the country on
the notice’s mailing date, were outside the country for less
than 48 hours, and did not experience delay in receiving the
notice).
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(48) SMITH v. COMMISSIONER 55
III. Petitioner Is Entitled to the 150-Day Period.
Petitioner is within the category of taxpayers that Con-
gress intended to benefit. See Lewy v. Commissioner, 68 T.C.
at 782; Camous v. Commissioner, 67 T.C. at 735; Hamilton
v. Commissioner, 13 T.C. at 753–754. She was a Canadian
resident (i.e., when the notice was mailed and delivered); was
not at the address to which the notice was delivered; and
received the notice, in Canada, 127 days after the notice’s
mailing date. Although petitioner was in San Francisco when
the notice was mailed and delivered, her status as a person
‘‘outside of the United States’’ is largely a function of her
residency and is not vitiated by her brief presence in the
United States. In short, the 150-day rule is applicable.
Contentions we have not addressed are irrelevant, moot, or
meritless.
To reflect the foregoing,
An appropriate order will be issued.
Reviewed by the Court.
THORNTON, COLVIN, VASQUEZ, GALE, WHERRY, PARIS, and
KERRIGAN, JJ., agree with this opinion of the Court.
GOEKE, J., concurs in the result only.
MARVEL, J., did not participate in the consideration of this
opinion.
COLVIN, J., concurring: I agree with the opinion of the
Court and write in response to some of the points made in
the dissenting opinions of Judge Halpern and Judge Gustaf-
son.
I. Introduction
In pertinent part, section 6213(a) provides: ‘‘Within 90
days, or 150 days if the notice is addressed to a person out-
side the United States, after the notice of deficiency author-
ized in section 6212 is mailed * * *, the taxpayer may file
a petition with the Tax Court for a redetermination of the
deficiency.’’ The conclusion of the first dissenting opinion, see
Halpern op. p. 71, that this language ‘‘has during the last 60
years taken on a fixed meaning, dependent on the taxpayer’s
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56 140 UNITED STATES TAX COURT REPORTS (48)
physical location’’, is at odds with our holdings in numerous
cases applying the 150-day period to foreign residents who
were briefly in the United States when the notice of defi-
ciency was sent.
Contrary to the interpretation of section 6213(a) in the dis-
senting opinions, we have consistently given the statute a
‘‘broad, practical construction’’ and said we ‘‘ ‘should not
adopt an interpretation which curtails * * * the right to a
prepayment hearing * * * in the absence of a clear congres-
sional intent to do so.’ ’’ Lewy v. Commissioner, 68 T.C. 779,
781, 782 (1977) (quoting King v. Commissioner, 51 T.C. 851,
855 (1969)); see also Looper v. Commissioner, 73 T.C. 690,
694 (1980). A construction of the statute that limits a foreign
resident’s ‘‘outside the United States’’ status to the resident’s
location on the notice’s delivery date would be just as ‘‘exces-
sively mechanical, unrelated to the section’s basic purpose,
and unsupported by case law’’ as the construction we rejected
in Lewy v. Commissioner, 68 T.C. at 782.
II. Hamilton v. Commissioner
In Hamilton v. Commissioner, 13 T.C. 747, 748, 753–754
(1949), we said that the 150-day period applies to a taxpayer
who regularly resides outside the United States but who
through fortuitous circumstance happened to be physically in
one of the States of the Union on the particular day the defi-
ciency notice was mailed to him. Contrary to the view
expressed in the first dissenting opinion, our ‘‘reading’’ of
Hamilton relating to consideration of a taxpayer’s foreign
residence has not ‘‘evolved.’’ See Halpern op. p. 64. Hamilton
was cited with approval in Levy v. Commissioner, 76 T.C.
228, 230 (1981), Lewy v. Commissioner, 68 T.C. at 785–786,
and Degill Corp. v. Commissioner, 62 T.C. 292, 297 (1974).
Most of the cases since Hamilton have simply dealt with dif-
ferent factual situations (i.e., where U.S. residents were
temporarily absent from the United States or where a notice
was addressed to a foreign address). See Malekzad v.
Commissioner, 76 T.C. 963 (1981); Levy v. Commissioner, 76
T.C. 228; Looper v. Commissioner, 73 T.C. 690; Camous v.
Commissioner, 67 T.C. 721 (1977); Cowan v. Commissioner,
54 T.C. 647 (1970).
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(48) SMITH v. COMMISSIONER 57
In Estate of Krueger v. Commissioner, 33 T.C. 667, 668
(1960), we held that the 150-day rule also applies to U.S.
residents temporarily absent from the country. In Estate of
Krueger, we agreed with the opinion of the Court of Appeals
for the Second Circuit in Mindell v. Commissioner, 200 F.2d
38, 39 (2d Cir. 1952). See Estate of Krueger v. Commissioner,
33 T.C. at 668. In Mindell, the taxpayer, a U.S. citizen and
indicted tax evader, moved with his family to Mexico. See
Mindell v. Commissioner, 200 F.2d at 39. We had concluded
in Mindell that the taxpayer was not regularly residing
abroad and therefore was entitled to only 90 days. Id. The
Court of Appeals for the Second Circuit reversed and stated:
[W]e cannot agree * * * that the statute grants the 150 day period only
to persons outside the designated area ‘‘on some settled business and
residential basis, and not on a temporary basis * * *’’. We find nothing
in the language of the statute or in its legislative history to suggest that
Congress intended to differentiate between persons temporarily absent
from the United States and persons ‘‘regularly residing’’ abroad. What-
ever the reason for the taxpayer’s absence from the country receipt of
the deficiency notice was likely to be delayed if he was not physically
present at the address to which the notice was sent; hence he was given
additional time to apply for review of the deficiency. We think the fact
of ‘‘residence’’ abroad irrelevant. [Id.]
The Court of Appeals for the Second Circuit said that resi-
dency was irrelevant because the taxpayer was outside the
country, was not likely to return, and therefore was entitled
to 150 days under section 6213. Residency is, indeed, irrele-
vant where a U.S. resident is temporarily outside the
country. There is nothing in Mindell, which rejected the
notion that the 150-day rule is limited to foreign residents,
or our Opinions, to support the contention in the first dis-
senting opinion that residency does not apply to, or is irrele-
vant with respect to, foreign residents. With respect to this
Court’s position, it also is noteworthy that, in Estate of
Krueger, where we adopted the reasoning of Mindell, we
included all of the above-quoted excerpt except the sentence
deeming residence irrelevant. Estate of Krueger v. Commis-
sioner, 33 T.C. at 668.
III. Lewy v. Commissioner
In Lewy v. Commissioner, 68 T.C. 779, the taxpayer was a
foreign resident temporarily present in the United States.
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58 140 UNITED STATES TAX COURT REPORTS (48)
The taxpayer was in the United States when the notice was
mailed; however, we held that he was ‘‘outside the United
States’’ for purposes of section 6213(a) and therefore was
entitled to application of the 150-day rule. Id. at 785–786.
We said that
Our reasoning in Hamilton v. Commissioner, 13 T.C. 747 (1949), pro-
vides further support for our conclusion [that the 150-day rule applied]:
‘‘An interpretation of the provision as meaning something more substan-
tial than the mere fortuitous circumstance of place where a taxpayer
physically happened to be on a certain date would likewise protect
against hardship a taxpayer regularly residing outside the States of the
Union and the District of Columbia, but who, through fortuitous cir-
cumstance, physically happened to be in one of the States of the Union
on the particular day the deficiency notice was mailed to him, and
would, because of his residence outside the States of the Union and the
District of Columbia, preserve to him the right to the period of 150 days
for the filing of his petition, just as it would for his neighbor who hap-
pened to be at home on the day when the deficiency notice was mailed.
[13 T.C. at 753–754.]’’ [Id. at 785; emphasis added.]
In addition, we held that Mindell and Estate of Krueger did
not ‘‘vitiate the above quoted language’’ but simply
‘‘expanded the class of persons entitled to file within 150
days.’’ Id. at 786. In short, we affirmed, rather than aban-
doned, our analysis in Hamilton. See id.
IV. Degill Corp. v. Commissioner
A foreign resident’s ‘‘outside the United States’’ status is
appropriately tied to the focal point of the taxpayer’s activi-
ties and property (i.e., residency). Linking a foreign resident’s
‘‘outside the United States’’ status to residency is a reason-
able and practical construction of the statute. A taxpayer’s
books, records, and residence are typically in the same place.
Such status does not depend solely on the taxpayer’s location
on the notice’s mailing and delivery dates. The analysis in
Degill Corp. v. Commissioner, 62 T.C. 292 is illuminating. In
Degill Corp., we held that the 150-day rule applied to a
domestic corporation which had an office in the United
States, had its home office in the South Pacific, and con-
ducted all of its business outside the United States. Id. at
293–294, 300. We observed that
the crucial criterion to be gleaned from the decided cases is whether the
‘‘person’’ is physically located outside the United States so that the
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(48) SMITH v. COMMISSIONER 59
notice of deficiency mailed to its United States address will be delayed
in reaching it in a foreign country * * *, and thereby hamper its ability
to adequately respond by filing a petition to litigate its case in this
Court. * * * [Id. at 299.]
We were ‘‘convinced that the * * * ‘registered office’ alone
should not be considered the physical location of * * * [the
corporation’s] home office when its officers, books, records,
majority stockholders, and entire equipment’’ were located
abroad. Id. We also concluded that the taxpayer required
additional time because its books, records, shareholders, and
equipment were abroad. Id. Despite the fact that the corpora-
tion had a Philadelphia office and the notice was mailed and
delivered in December 1972 to both the Philadelphia and for-
eign addresses, we held that where ‘‘the situs of corporate
activity is entirely outside the United States, congressional
concern for adequate response time for a taxpayer makes the
150-day rule applicable’’. See id. at 295, 299.
In essence, the corporation’s ‘‘residency’’ was a relevant
and determining factor. We analyzed the matter accordingly,
following our holding in Hamilton establishing that foreign
residents were entitled to application of the 150-day rule. See
Degill Corp. v. Commissioner, 62 T.C. at 297–300. Specifi-
cally, we noted that Degill Corp. was not a case of a U.S.
resident’s temporary absence but was ‘‘a permanent absence
from the United States which would have invoked the 150-
day rule even under the former stricter rule of * * * [Ham-
ilton]’’ (i.e., the rule limiting the 150-day rule to foreign resi-
dents). Degill Corp. v. Commissioner, 62 T.C. at 300. In sum,
our analysis in Degill Corp. supports the analysis of the
opinion of the Court.
Malekzad and Levy involved U.S. residents temporarily
abroad, while in Looper the issue was whether ‘‘outside’’
modified ‘‘address’’ or ‘‘person.’’ Contrary to the reliance
placed on them by the first dissenting opinion, these cases do
not involve foreign residents and so do not speak to the case
before the Court. 1
1 Indeed,
the analysis in Levy v. Commissioner, 76 T.C. 228 (1981), and
Malekzad v. Commissioner, 76 T.C. 963 (1981), contradicts the first dis-
senting opinion’s assertion that physical location is determinative. In Levy
we stated that ‘‘[a]n inquiry into petitioners’ geographic location at the pre-
cise moment the deficiency notice was mailed [is not controlling because
Continued
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60 140 UNITED STATES TAX COURT REPORTS (48)
For the foregoing reasons I agree with the reasoning and
conclusion of the opinion of the Court.
THORNTON, FOLEY, VASQUEZ, GALE, WHERRY, PARIS, and
KERRIGAN, JJ., agree with this concurring opinion.
HALPERN, J., dissenting:
I. Introduction
I disagree with the majority’s determination that the statu-
tory notice of deficiency (notice or statutory notice) that
respondent addressed to petitioner for her 2000 tax year was
addressed to a person outside the United States so that,
pursuant to section 6213(a), she had 150 (rather than 90)
days to file the petition. The majority reads the words of sec-
tion 6213(a), ‘‘a person outside the United States’’, as if Con-
gress had, in fact, written ‘‘a person residing outside the
United States who is briefly present in the United States and
who, while present, does not receive the notice’’. Petitioner
was present in the United States for a two-week period
bracketing both the mailing and delivery of the notice to her
address (a U.S. address) last known to the Commissioner,
and, in the light of the words actually used by Congress and
the relevant caselaw, that is sufficient for me to conclude
that the notice was not addressed to a person outside the
United States. Therefore, pursuant to section 6213(a), she
had only 90, and not 150, days from the date the notice was
mailed to file her petition with the Tax Court. Her petition,
filed 148 days after the notice was mailed, was not timely,
it] is too narrow of a consideration to effectuate the purposes of the stat-
ute.’’ See Levy v. Commissioner, 76 T.C. at 231 (emphasis added). In
Malekzad, we held that taxpayers who were outside the United States
when the notice was delivered were not ‘‘outside the United States’’ be-
cause other factors (i.e., the lack of delay) made the 150-day rule inappli-
cable. See Malekzad v. Commissioner, 76 T.C. 963. We stated that ‘‘the
statute does not say that the determination of whether the 90-day period
or the 150-day period applies depends upon the geographical location of
the taxpayer at the exact time the statutory notice is mailed. * * * The
statute also does not say that the applicability of the 150-day period de-
pends upon the taxpayer’s geographical location at the exact time the stat-
utory notice is delivered by the Postal Service to the taxpayer’s home.’’ Id.
at 969.
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(48) SMITH v. COMMISSIONER 61
and we should grant respondent’s motion to dismiss for lack
of jurisdiction.
II. Discussion
A. Section 6213(a)
In pertinent part, section 6213(a) provides: ‘‘Within 90
days, or 150 days if the notice is addressed to a person out-
side the United States, after the notice of deficiency author-
ized in section 6212 is mailed * * *, the taxpayer may file
a petition with the Tax Court for a redetermination of the
deficiency.’’ Filing a timely petition for redetermination of a
deficiency is a jurisdictional requirement. Mindell v. Commis-
sioner, 200 F.2d 38, 39 (2d Cir. 1952); Lewy v. Commissioner,
68 T.C. 779, 781 (1977).
B. Judicial Gloss
The seemingly straightforward language of section 6213(a)
allowing a taxpayer 150 days to file a petition ‘‘if the notice
is addressed to a person outside the United States’’ has been
subject to much judicial gloss since, as a wartime measure in
1942, its predecessor language was added to the Internal
Revenue Code of 1939. In Hamilton v. Commissioner, 13 T.C.
747 (1949), we rejected the Commissioner’s argument that,
because their last known addresses (to which the statutory
notices had been sent) were within the United States, the
two subject taxpayers had no more than 90 days to file peti-
tions. We held that the words ‘‘outside the [United States]’’
in a predecessor provision referred to a ‘‘person’’ rather than
to the word ‘‘addressed’’. 1 We added, however, that the 150-
1 The legislative history of that predecessor provision in the Revenue Act
of 1942, ch. 619, 56 Stat. 798, was described in Hamilton v. Commissioner,
13 T.C. 747, 750–751 (1949), as follows:
The 150-day provision added at the end of section 272(a)(1) [of the In-
ternal Revenue Code of 1939] first appeared when the Revenue Bill of
1942 was reported to the Senate by its Committee on Finance, and was
explained in the committee report as follows:
‘‘Under existing law if a notice of deficiency in income tax is mailed
to a taxpayer he has 90 days within which to file his petition with the
Board of Tax Appeals. In the case of a taxpayer in remote places, such
as Hawaii or Alaska, this time limit may possibly work a hardship be-
Continued
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62 140 UNITED STATES TAX COURT REPORTS (48)
day period was available only to persons outside the United
States ‘‘on some settled business and residential basis, and
not on a temporary basis’’. Id. at 753. We have since then
rejected that distinction. See Estate of Krueger v. Commis-
sioner, 33 T.C. 667, 668 (1960). In Estate of Krueger, we fol-
lowed the lead of the Court of Appeals for the Second Circuit
in Mindell v. Commissioner, 200 F.2d 38. In Mindell, the
Court of Appeals reversed our unpublished order granting
the Commissioner’s motion to dismiss for lack of jurisdiction
on account of an untimely petition. Apparently, we had found
that the taxpayer, a fugitive from prosecution living with his
family in Mexico, was not regularly residing abroad. We had
therefore concluded, on the authority of Hamilton, that he
was entitled to no more than 90 days to file a petition. While
the Court of Appeals agreed with our interpretation in Ham-
ilton that the availability of the 150-day period turned on the
location of the person and not on a foreign address, it
rejected the distinction we had drawn that the 150-day
period was available only to persons out of the country ‘‘ ‘on
some settled business and residential basis, and not on a
temporary basis’ ’’. Id. at 39. Indeed, it questioned our finding
that Mr. Mindell was not regularly residing abroad. 2 In any
event, it thought the fact of residence abroad to be irrelevant.
Id. It stated:
We find nothing in the language of the statute or in its legislative his-
tory to suggest that Congress intended to differentiate between persons
temporarily absent from the United States and persons ‘‘regularly
cause of delays in transporting mail that may occur during the present
hostilities. To correct this hardship section 272(a)(1) of the Code has
been amended to increase the period to 150 days if the notice is mailed
to a person outside the States of the Union and the District of Columbia.
This extension applies only to deficiency notices mailed after the date of
enactment of the act.’’ [Senate Finance Committee Report No. 1631, Sev-
enty-seventh Congress, second session, p. 154.]
As the result of a conference on the bill, the House receded and accepted
the Senate amendment without explanation other than a statement in
the conference report of the substance of the sentence added.
2 The Court of Appeals stated: ‘‘But even on the Tax Court’s theory that
the taxpayer must show that he was ‘regularly residing’ abroad, we fail to
see why his affidavit was insufficient to establish that fact. Evidence that
he had been indicted and jumped bail, if relevant at all, would seem to
support his claim of residence in Mexico’’. Mindell v. Commissioner, 200
F.2d 38, 39 (2d Cir. 1952).
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(48) SMITH v. COMMISSIONER 63
residing’’ abroad. Whatever the reason for the taxpayer’s absence from
the country receipt of the deficiency notice was likely to be delayed if he
was not physically present at the address to which the notice was sent;
hence he was given additional time to apply for review of the deficiency.
We think the fact of ‘‘residence’’ abroad irrelevant. [Id.]
Subsequently, in Looper v. Commissioner, 73 T.C. 690, 694
(1980), we reconsidered the inference in Hamilton and other
of our cases that the 150-day rule applies only in cases where
the taxpayer is out of the United States and not in cases
where the address is a foreign address. We stated that the
common element in the decided cases is a recognition that
the receipt of mail is often delayed when it travels abroad.
Id. We quoted the following language from Degill Corp. v.
Commissioner, 62 T.C. 292, 299 (1974), as illustrating our
reasoning in the decided cases.
‘‘As we see it, the crucial criterion to be gleaned from the decided cases
is whether the ‘person’ is physically located outside the United States so
that the notice of deficiency mailed to its United States address will be
delayed in reaching it in a foreign country, possession, or territory, and
thereby hamper its ability to adequately respond by filing a petition to
litigate its case in this Court. * * * ’’ [Looper v. Commissioner, 73 T.C.
at 694.]
We rejected as ‘‘unduly restrictive’’ a reading of the statute
that the 150-day rule applies only in cases where the tax-
payer is out of the United States and not in cases where the
address is a foreign address. Id. We stated: ‘‘The literal terms
of the statute can support a reading that the 150-day rule
applies either when the taxpayer is out of the country or
when the address on the notice is a foreign address and the
legislative history is such that it does not foreclose either
construction.’’ Id. We held accordingly. Id. at 695–696.
C. Foreign Residence No Longer Decisive
While in Hamilton v. Commissioner, 13 T.C. 747, the tax-
payer’s residence abroad was decisive to our determination
that he was, in the words of the present statute, ‘‘a person
outside the United States’’ (entitled to 150 days to file a peti-
tion), we have, as discussed, since then disregarded the
distinction between expatriates and those sojourning abroad
in determining whether a taxpayer is such a person. Foreign
residence as a decisive factor has given way to physical loca-
tion outside the United States as the ‘‘crucial criterion’’,
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64 140 UNITED STATES TAX COURT REPORTS (48)
applicable both to expatriates and those sojourning abroad,
in determining who (despite the notice having been mailed to
their U.S. last known address) is ‘‘a person outside the
United States.’’ See Degill Corp. v. Commissioner, 62 T.C. at
299. Indeed, our reading of Hamilton seems to have evolved
consistent with that distinction. In Levy v. Commissioner, 76
T.C. 228, 230 (1981), we cited Hamilton for the proposition
that the phrase, in section 6213(a), ‘‘addressed to a person
outside the United States’’ means ‘‘the taxpayer to whom the
notice is addressed must have been located abroad.’’
(Emphasis added.) In Looper v. Commissioner, 73 T.C. at
693, we were more explicit, stating that, in Hamilton, we
read section 272(a)(1) of the Internal Revenue Code of 1939
(the predecessor to section 6213(a)) ‘‘to provide the 150-day
period for persons who were physically outside the United
States at the time the statutory notice was mailed’’.
(Emphasis added.) In Degill Corp., we were faced with deter-
mining the physical location of an artificial person, a
domestic corporation, whose entire business operations were
overseas. Because of the exclusiveness of its activities over-
seas, we concluded that ‘‘this domestic corporation was phys-
ically located abroad’’, entitled to 150 days to file a petition.
Degill Corp. v. Commissioner, 62 T.C. at 300 (emphasis
added). We were careful not to suggest that a temporary
absence of officers from the U.S. home office of a domestic
corporation requires the 150-day rule to apply. Id. We stated:
‘‘Here we have a permanent absence from the United States
which would have invoked the 150-day rule even under the
former stricter rule of Rebecca S. Hamilton, 13 T.C. 747
(1949).’’ Id. In other words, we saw no need to address the
question of whether, on account of the overseas travel of the
officers of a domestic, U.S. headquartered corporation, the
corporation would be considered as physically located abroad,
so as to be entitled to 150 days to file a petition pursuant to
the temporarily-absent-from-the-country rule we adopted in
Estate of Krueger v. Commissioner, 33 T.C. 667.
While physical location and residence will often coincide, a
taxpayer may not at all times be physically located (present)
at her residence. If, as we said in Degill Corp. v. Commis-
sioner, 62 T.C. at 299, ‘‘the crucial criterion’’ is whether the
taxpayer ‘‘is physically located outside the United States’’,
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(48) SMITH v. COMMISSIONER 65
then, when residence and location fail to coincide, the former
must give way to the latter.
Our position with respect to determining whether a tax-
payer is a person outside the United States (and thus enti-
tled to 150 days to file a petition) is distilled in the following
language from Looper v. Commissioner, 73 T.C. at 694: ‘‘the
150-day rule applies either when the taxpayer is out of the
country or when the address on the notice is a foreign
address’’. And, as the development of our caselaw shows, out
of the country means ‘‘physically located outside the United
States’’. Degill Corp. v. Commissioner, 62 T.C. at 299. 3
Although we continue on occasion to cite Hamilton, the por-
3 There
are, of course, the questions of ‘‘when’’ and of for ‘‘how long’’ the
taxpayer must be absent from the country in order to be allowed 150 days
to file a petition. In Malekzad v. Commissioner, 76 T.C. 963, 969 (1981),
we noted that, while sec. 6213(a) prescribes that the period (whether 90
or 150 days) to file a petition runs from the date of mailing of the statutory
notice, the statute does not prescribe the time as of when the determina-
tion is to be made that the notice is addressed to a person outside the
United States. We stated: ‘‘In determining the applicability of the 150-day
period as opposed to the 90-day period, * * * the Court has chosen to look
at both the date of mailing of the statutory notice and the date it was fi-
nally received by the taxpayer.’’ Id. at 969–970. The notice in Malekzad
was delivered to the taxpayers’ home on a Saturday. Earlier on that day
they had departed on an overnight trip to Mexico. We refused to read the
statute as saying that the applicability of the 150-day period turns on the
taxpayer’s location at the exact time the notice is delivered by the Postal
Service to the taxpayer’s home. Id. at 969. Nevertheless, although appar-
ently granting that, because of their departure from the United States on
the delivery day, the Malekzads were outside the United States on that
day, we held that their absence was too brief to entitle them to an ex-
tended period to file a petition. In Malekzad, we first made clear that a
taxpayer has 150 days from the date a statutory notice is mailed to file
a petition if, on the day the notice is delivered, she is outside the United
States. We then determined that, if the taxpayer departs from the United
States on the delivery day, she is deemed to be outside the United States
for all of that day. We thus resolved an ambiguity with respect to a tax-
payer’s location on the delivery date. There is no ambiguity in this case
as to petitioner’s location on the day the notice was delivered to her post
office box: She was in San Francisco. As evidenced by Malekzad, and as
discussed in the next section of this dissenting opinion, we may disregard
a taxpayer’s ephemeral absence from, or presence in, the United States.
Petitioner’s presence in the United States was not, as we have considered
the term, ephemeral. She is entitled to only 90 days to file the petition.
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66 140 UNITED STATES TAX COURT REPORTS (48)
tion of that report that pegs an extended period to file a peti-
tion to residence abroad is an anachronism.
D. Ephemeral Presence Disregarded
An expatriate need not worry that her ephemeral presence
in the United States will limit her to 90 days to petition a
statutory notice delivered to her U.S. last known address
while she was for a short time in (perhaps transiting) the
United States. While the authority addresses the reverse
situation, i.e., whether a taxpayer’s temporary absence from
the United States makes him ‘‘a person outside the United
States’’ (with 150 days to file a petition), the deciding prin-
ciples should be the same. In Cowan v. Commissioner, 54
T.C. 647, 652 (1970), we held that the taxpayers, ‘‘who
merely went across the border into Mexico for part of 1 day’’
were not persons outside the United States entitled to 150
days to file their petition. In Malekzad v. Commissioner, 76
T.C. 963, 970 (1981), allowing no extended filing period on
account of the taxpayers’ overnight trip to Mexico, we
described the taxpayer’s 11-hour absence in Cowan as
‘‘ephemeral’’ and added: ‘‘By the same token, a mere ephem-
eral presence in the United States on the date of mailing of
the statutory notice also will not necessarily deprive a tax-
payer of the benefits of the 150-day period’’. In Levy v.
Commissioner, 76 T.C. 228, the taxpayers were entitled to
150 days to file their petition where they left on a 5-day trip
to Jamaica on the day a statutory notice was mailed to their
residence and the notice was awaiting them on their return.
Considering these cases, our position appears to be that a
few-hours’ or an overnight absence from the United States is
ephemeral (i.e., it is as if the taxpayer never left the
country), whereas an absence of four days encompassing the
mailing and delivery of the notice places the taxpayer ‘‘out-
side the United States’’ for purposes of section 6213(a). Thus,
even under the majority’s interpretation that a taxpayer is ‘‘a
person outside the United States’’ (entitled to 150 days to file
a petition) if she resides abroad and is only temporarily in
the United States when a statutory notice is mailed to her
U.S. last known address, Levy would appear to require that
petitioner be accorded only 90 days to file since she was in
the United States for just over a two-week period during
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(48) SMITH v. COMMISSIONER 67
which the notice was both mailed to, and delivered to, her
last known address, in the United States. In other words, her
physical presence in the United States was not sufficiently
temporary (i.e., ‘‘ephemeral’’), and it cannot be disregarded
for purposes of section 6213(a).
E. When Absence Matters
An expatriate may visit the United States, and a U.S. resi-
dent may travel abroad. In Lewy v. Commissioner, 68 T.C.
779, the taxpayer, a resident of France, who was temporarily
in the United States, left the country the day after a statu-
tory notice was mailed to his U.S. address. We allowed the
taxpayer 150 days to file a petition, finding that Congress
intended the extended period to apply not only to those who,
because of receipt of the notice after 90 days have run, are
‘‘totally prevented’’ from petitioning the Tax Court within
that time, but also ‘‘to persons like petitioner who experience
significant delays in receiving notices due to absence from
the country.’’ Id. at 785. We stated: ‘‘We are unwilling to
frustrate this clear congressional policy by relegating peti-
tioner to a lesser period whenever there exists some conceiv-
able way filing could be accomplished within that time.’’ Id.
We added: ‘‘Our reasoning in Hamilton * * * provides fur-
ther support for our conclusion’’, and we quoted language
from Hamilton in which we pointed out that, if residence
were decisive, physical presence in the United States on the
day a statutory notice was mailed to him would not deprive
the taxpayer of 150 days to file a petition. 4 Id.
In Levy v. Commissioner, 76 T.C. 228, discussed supra, the
statutory notice was mailed to the taxpayers at their last
known address, their residence, in Chicago, Illinois, on the
same day they departed the United States for a five-day
vacation in Jamaica. The notice was delivered to their resi-
dence on the second day of their vacation and was there
when they returned, three days later. We allowed the tax-
payers 150 days to file a petition. We first put aside the fact
that they were both inside and outside the United States on
the day the notice was mailed to them, stating: ‘‘In any
4 The quote is dictum, the Hamilton court not being presented with that
circumstance. Indeed, the majority describes the quote as the Hamilton
court’s musing. See op. Ct. p. 53.
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68 140 UNITED STATES TAX COURT REPORTS (48)
event, the petitioners were abroad when the statutory notice
was delivered at their home, and this seems to be what the
statute contemplates.’’ Id. at 231. We then stated: ‘‘The 150-
day period has been held to apply not only to * * * [expatri-
ates] but also to persons who are temporarily absent from
the country’’. Id. We added, relying for authority on Lewy:
‘‘In addition, the absence from the country must result in
delayed receipt of the deficiency notice.’’ Id. (citing Lewy v.
Commissioner, 68 T.C. at 783).
Clearly, in Levy, the taxpayers’ U.S. residence played no
role in our consideration of whether they were entitled to a
150-day filing period. Indeed, we dismissed residence as a
relevant concern. And in retrospect, while in Lewy we found
support in Hamilton, the fact that Mr. Lewy was a French
resident made no difference whatsoever. What made a dif-
ference in Lewy (and it is for the thing that made a dif-
ference in Lewy that we cited it in Levy) was that Mr. Lewy’s
‘‘absence from the country * * * result[ed] in [his] delayed
receipt of the deficiency notice.’’ Levy v. Commissioner, 76
T.C. at 231. 5
A close reading of Levy and Lewy shows that, in the case
of those temporarily inside or outside the United States, resi-
dence is beside the point. Absence from the United States,
resulting in delay, is what matters.
F. Hamilton Not Dispositive
In Hamilton v. Commissioner, 13 T.C. 747, we read what
is now the term ‘‘a person outside the United States’’ as, in
effect, describing an expatriate. Today, we must decide
whether an expatriate whose last known address is in the
United States and who is physically present in the United
States when a statutory notice is mailed to that address is,
5 The notion that to be entitled to 150 days to file a petition the taxpayer
must show not only absence from the country but also an attendant delay
in receipt of the notice was established in Cowan v. Commissioner, 54 T.C.
647 (1970), a Court-reviewed report. In Cowan, discussed supra, we found
that the taxpayers, who were in Mexico for about 11 hours on the day a
statutory notice was mailed to their North Hollywood, California, address,
were entitled to only 90 days to file a petition. We quoted the ‘‘resident-
abroad-irrelevant language’’ from Mindell and, relied, instead, on the fact
that spending 11 hours in Mexico is not likely to result in delayed delivery.
Id. at 652.
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(48) SMITH v. COMMISSIONER 69
at that time, ‘‘a person outside the United States’’. With
respect to petitioner, the majority states: ‘‘her status as a
person ‘outside of the United States’ is largely a function of
her residency and is not vitiated by her brief presence in the
United States.’’ See op. Ct. p. 55 (emphasis added). If her
status is ‘‘largely’’ a function of her residence, then it is not
exclusively a function of her residence, and Hamilton is not
dispositive. In other words, for the majority, petitioner’s
expatriation is not, in and of itself, sufficient to qualify her
for an extended (150-day) period to file a petition.
G. Other Factors
In Hamilton we read Congress’ words ‘‘a person outside the
States of the Union and the District of Columbia’’ 6 as if Con-
gress had in fact written ‘‘a person residing outside the
States of the Union and the District of Columbia’’. The
majority now reads the words of section 6213(a) ‘‘a person
outside the United States’’ as if Congress had in fact written
‘‘a person residing outside the United States who is briefly
present in the United States and who, while present, does not
receive the notice’’.
The addition of the nonreceipt criterion is evidenced by the
majority’s including in its explanation of why petitioner is in
the category of taxpayers that Congress intended to benefit
with an extended filing deadline a finding that petitioner
(while in the United States) was not at the address to which
the notice was delivered. See op. Ct. p. 55. The importance
of that finding is evidenced by the majority’s preceding
discussion concluding that, not only does the briefness of
petitioner’s presence play a role, see op. Ct. pp. 53–54, but:
‘‘Similarly, a foreign resident may be ‘a person outside the
United States’ even if the foreign resident is in the United
States on the notice’s delivery date (i.e., if the taxpayer ulti-
mately receives notice several months later while in the for-
eign country).’’ (Emphasis added.) The inference is that, if an
expatriate receives a statutory notice while present in the
United States, the expatriate is, as of the time of receipt, no
longer ‘‘a person outside the United States’’.
Certainly, Congress knows how to make clear that non-
receipt of a statutory notice entitles a person to some relief.
6 The predecessor to today’s ‘‘a person outside the United States’’.
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70 140 UNITED STATES TAX COURT REPORTS (48)
In specifying the rules for a so-called collection due process
hearing, Congress, in section 6330(c)(2)(B), provided that a
person may at such a hearing raise a challenge to the exist-
ence or amount of the underlying tax liability ‘‘if the person
did not receive any statutory notice of deficiency for such tax
liability’’. To the contrary, receipt of the notice plays no role
in the interaction between section 6212(b)(1), which, in gen-
eral, makes ‘‘sufficient’’ the mailing of the statutory notice to
the taxpayer’s last known address, and section 6213(a),
which allows the taxpayer 90 days or, in the case of a ‘‘notice
* * * addressed to a person outside the United States’’, 150
days after the notice is mailed to file a petition with the Tax
Court. Indeed, the irrelevance of receipt is underlined by the
concluding words of section 6212(b)(1), which provide that a
notice mailed to the taxpayer’s last known address is suffi-
cient ‘‘even if such taxpayer is deceased, or is under a legal
disability, or, in the case of a corporation, has terminated its
existence.’’ Caselaw is consistent with the absence of any
requirement of receipt before the taxpayer’s section 6213(a)
period to petition the Tax Court begins to run. See, e.g.,
Keado v. United States, 853 F.2d 1209, 1211–1212 (5th Cir.
1988); DeWelles v. United States, 378 F.2d 37, 39 (9th Cir.
1967); Estate of McKaig v. Commissioner, 51 T.C. 331, 335
(1968); Spivey v. Commissioner, T.C. Memo. 2001–29, aff ’d,
29 Fed. Appx. 575 (11th Cir. 2001).
The addition of a nonreceipt criterion to the determination
of whether a statutory notice is addressed to a person outside
the United States also leads to a paradox if the taxpayer
specified in a notice addressed to her last known (U.S.)
address is in the country when the notice is mailed and
delivered to that address but is not physically present to
retrieve it. If she does not retrieve it before departing the
United States, the majority would conclude that it was
addressed to a person outside the United States, who has
150 days to file her petition. If, on the other hand, she
retrieves it before departing, then, apparently, the majority
would conclude that it was not addressed to a person outside
the United States, who has only 90 days to file her petition.
As to petitioner, her status was thus indeterminate between
the delivery of the notice to her post office box on December
31, 2007, and her departure from the United States on
January 8, 2008. Section 6213(a) pegs the period during
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(48) SMITH v. COMMISSIONER 71
which a taxpayer may file a petition with the Tax Court to
the date the notice is mailed. Until petitioner left the country
on January 8, 2008, the period she had (90 or 150 days) to
file her petition was not only unknown; it was, under the
majority’s rationale, unknowable. When she left without
retrieving the notice, she satisfied the majority’s definition of
a person outside the United States; but, had she visited her
post office box before departing and retrieved the notice, then
her physical location, inside the United States, would have
prevailed and her time to petition would have been fixed at
90 days.
The majority states: ‘‘Where a statute is capable of various
interpretations, we are inclined to adopt a construction which
will permit the Court to retain jurisdiction without doing
violence to the statutory language.’’ See op. Ct. p. 51. I
believe that the majority’s reading of the words in section
6213(a) ‘‘a person outside the United States’’ as if Congress
had, in fact, written ‘‘a person residing outside the United
States who is briefly present in the United States and who,
while present, does not receive the notice’’ does do violence to
the statutory language. We must keep in mind the general
proposition that grants of jurisdiction to the Federal courts
should be narrowly construed. See, e.g., United States v.
Mitchell, 445 U.S. 535, 538 (1980):
It is elementary that ‘‘[t]he United States, as sovereign, is immune
from suit save as it consents to be sued . . ., and the terms of its consent
to be sued in any court define that court’s jurisdiction to entertain the
suit.’’ United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of
sovereign immunity ‘‘cannot be implied but must be unequivocally
expressed.’’ United States v. King, 395 U.S. 1, 4 (1969). In the absence
of clear congressional consent, then, ‘‘there is no jurisdiction in the Court
of Claims more than in any other court to entertain suits against the
United States.’’ United States v. Sherwood, supra, at 587–588. [Some
citations omitted.]
III. Conclusion
The meaning of the expression ‘‘a person outside the
United States’’ has during the last 60 years taken on a fixed
meaning, dependent on the taxpayer’s physical location. The
majority’s rewrite of section 6213(a) not only contradicts that
meaning but presents an implausible construction of the
statute. We should grant respondent’s motion to dismiss for
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72 140 UNITED STATES TAX COURT REPORTS (48)
lack of jurisdiction on the ground that petitioner had 90 days
to file the petition and the petition, filed on the 148th day,
was not timely.
HOLMES, GUSTAFSON, and MORRISON, JJ., agree with this
dissent.
GUSTAFSON, J., dissenting: The taxpayer in this case did
not file her petition ‘‘within 90 days’’ after the mailing of the
IRS’s notice of deficiency, see 26 U.S.C. sec. 6213(a), but
rather 148 days. We therefore lack jurisdiction unless ‘‘the
notice is addressed to a person outside the United States.’’
Id. It was not so addressed.
Rather, the notice was addressed to the taxpayer’s post
office box address in San Francisco, California (an address
obviously inside the United States); and at the time the
notice was mailed by the IRS and delivered to that post office
box, the taxpayer was in San Francisco (i.e., was inside the
United States). The notice of deficiency was therefore neither
addressed to nor delivered to ‘‘a person outside the United
States’’. The deadline for filing a petition was therefore the
90-day deadline.
Various other facts about the taxpayer’s situation could be
adduced to make the situation appear more sympathetic
(e.g., she was very busy moving, and she never saw the
notice) or less sympathetic (e.g., she was in San Francisco a
full week after delivery but did not check her mail); but the
statute makes no mention of such considerations. It provides
a 90-day deadline, and it makes an exception only when ‘‘the
notice is addressed to a person outside the United States.’’
That exception is not met here. I would dismiss the petition.
HALPERN, KROUPA, HOLMES, and MORRISON, JJ., agree
with this dissent.
f
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