holding notice effective if received without prejudicial delay by the taxpayer
How later courts described this case
- holding notice effective if received without prejudicial delay by the taxpayer
- notice of deficiency, though not sent to taxpayer's last known address, valid where taxpayer actually received the notice within 90 days of its mailing and timely filed a petition
- "[S]o long as the notice of deficiency is timely mailed by the Commissioner and is received without prejudicial delay by the taxpayer * * *, the notice is effective for all purposes from the time of its mailing."
- respondent mailed a consent form to taxpayer's new address after oral notification
Written by the judges who cited it.
The opinion
Shields, J., concurring: I concur in the result but feel that we should not take up the question of the statute of limitations at this point. The matter before us for decision is a motion by petitioners to dismiss for lack of jurisdiction. Whether or not the proposed assessment is time barred under section 6501(a) has no bearing on our jurisdiction. If it did, we would never be able to consider the many proposed assessments set forth in notices of deficiency which are issued even years after the expiration of the normal 3-year statute but which may or may not be barred depending upon whether or not we find there is fraud under section 6501(c)(1) or (2); no return was filed under section 6501(c)(3); a valid consent to an extension of the statute under section 6501(c)(4); a substantial omission under section 6501(e); or some other exception to the usual statute of limitations. Consequently, I believe at this point in this case we should make no reference to the statute of limitations except a statement to the effect that the statute is not a jurisdictional matter and will not be considered on a motion to dismiss for lack of jurisdiction. The proper place to handle the question of the statute of limitations would be in a separate motion for summary judgment, if there is no material fact in dispute, or at the trial, if there are disputed facts.
With respect to the jurisdictional question, I would deny the motion to dismiss solely upon the ground that this case falls squarely within our line of cases dealing with the following general facts: (1) The notice was not mailed to the last address known to the respondent; (2) in spite of the incorrect address used on the notice, it was actually delivered to the taxpayer; and (3) a petition was filed within 90 days of the date of the notice. We have repeatedly held that under these facts we have jurisdiction. Goodman v. Commissioner, 71 T.C. 974 (1979); Zaun v. Commissioner, 62 T.C. 278 (1974); Lifter v. Commissioner, 59 T.C. 818 (1973); Clodfelter v. Commissioner, 57 T.C. 102 (1971), affd. 527 F.2d 754 (9th Cir. 1975); Brzezinski v. Commissioner, 23 T.C. 192 (1954).
Wiles and Wilbur, JJ., agree with this concurring opinion.