Petition — Mercer v. Commissioner

~ ‘Supreme Court, U. &

FILED

' MAR 10 1978

_MICHAEL RODAK, JR., CLE

vo, €821755

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

PAUL W. MERCER and FLORENCE L. MERCER,

Petitioners,

vs.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the United States)

}

f

>, a

ex

Paul W. Mercer \ “4

Pro Per

Address:

L & M Building, Suite l

4014 N. 7th Street

Phoenix, Arizona 85014

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

PAUL W. MERCER and FLORENCE L. MERCER,

Petitioners,

vs.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the United States

Paul W. Mercer

Pro Per

Address:

L & M Building, Suite l

4014 N. 7th Street

Phoenix, Arizona 85014

INDEX

Page

Opinions Below ....cceeeecccccceces 2

JumieGistiaoG ccccccccece seebesecece 3

Question Presented .....ccescecsees 4

Statute Involved ....cccccceccsccces 5-8

BERCOMORE ccccccccceseccecseceecees 9,10

Reasons for Granting this Writ .... 11-19

GaomGAMGGGR coccccesessosesevevesees 19

Appendix A:

Order of the United States Tax Court

of December 6, 1976 ccccceccccccesece

Opinion of the United States Court

of Appeals For the Ninth Circuit,

of November 25, 1977 w.ncccecevccevees

Order of the United States Court of

Appeals For the Ninth Circuit denying

Petition for Rehearing dated January

BDe AFFS coccccccccesecececseseseeges

-i-

TABLE OF CASES

Page

Cohen v. United States,

297 F 2d 760 (C.A. 9, 1962)

cert. denied, 369 U.S. 865

0 a 15

Boren v. Riddell,

241 F 2d 670 (C.A. 9, 1957) ....eeeee 16

Compton v. National Metals Co.,

10 Ariz. App. 366, 459 P2d 93 ........ 12

O'Brien v. Commissioner,

———$

a 17

People v. Skinner,

149 ALR 299, 18 Cal 2d 349,

Oe ee 16

Robinson v. Hanrahan,

409 U.S. 38 (1972) *ee eee eeeeeeeeneenenee 17

Schroeder v. New York City,

89 ALR 2d 1398, 371 US 508, 9 L Ed

& ee Ff CO eee errr ree 13

Swansea Properties, Inc. v. Hedrick,

3 Ariz. App. 594, 416 Ped 1015 ...... 12

Tenzer v. Commissioner,

ee ee ey ee 15

Traders & General Ins. Co. v. Malitz,

Gals Giles GOD © UE BUD cccescssesceces 15

-ii-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

RICHARD A. WILSON and SHARON L. WILSON,

et al., Petitioners,

vs.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

To the Honorable, the Chief Justice

and Associate Justices of the Supreme Court

of the United States.

Richard A. Wilson and Sharon L. Wilson,

et al., Petitioners herein, pray that a writ

of certiorari issue to review the opinion

of the United States Court of Appeals For

The Ninth Circuit entered in the above-

entitled case on November 25, 1977.

OPINIONS BELOW

The opinion of the United States

Court of Appeals For The Ninth Circuit is

unreported and is printed in Appendix A

hereto, infra, page

JURISDICTION

The opinion of the United States Court

of Appeals For The Ninth Circuit (Appendix

A hereto, infra, page __—Si) was entered

on November 25, 1977. A timely petition

for rehearing was denied on January 13, 1978.

The jurisdiction of this Court is

invoked under Rule 1254 of the Supreme

Court Federal Rules of Jurisdiction and

Venue.

QUESTIONS PRESENTED

What are the minimum requirements of

notice which is not violative of the due

process clause of the constitution of the

United States?

Whether the tax court was correct in

dismissing Petitioners’ petition as to

John Does 1-5 and Jane Does 1-5 for lack

of jurisdictional prerequisite of deficiency

notice being sent on the one hand, then

denying Paul W. Mercer and Florence L.

Mercer's motion to amend on the grounds

that the motion was untimely filed, in that

the 90 day period had expired, the time

frame being identical in both instances.

STATUTES INVOLVED

Internal Revenue Code of 1954 (26 U.S.C.):

SEC. 6212. NOTICE OF DEFICIENCY

(a) [as amended by Sec. 89(b),

Technical Amendments Act of 1958, P.L.

85-866, 72 Stat. 1606 and Sec. 101(j) (40),

Tax Reform Act of 1969, P.L. 91-172,

83 Stat. 487] In General.-- If the

Secretary or his delegate determines that

there is a deficiency in respect of any tax

imposed by subtitles A or B or chapter 42,

he is authorized to send notice of such

deficiency to the taxpayer by certified

mail or registered mail.

(b) [as amended by Sec. 101(j) (41)

Tax Reform Act of 1969, supra] Address

for Notice of Deficiency. --

(1) Income and gift taxes and

taxes imposed by chapter 42. --In the

absence of notice to the Secretary or his

delegate under section 6903 of the existence

of a fiduciary relationship, notice of a

deficiency in respect of a tax imposed by

subtitle A, chapter 12, or chapter 42 if

mailed to the taxpayer at his last known

address, shall be sufficient for purposes

of subtitle A, chapter 12, chapter 42 and

this chapter even if such taxpayer is

deceased, or is under a legal disability,

or, in the case of a corporation, has

terminated its existence.

(2) Joint income tax return. --

In the case of a joint income tax return

filed by husband and wife, such notice of

deficiency may be a single joint notice,

except that if the Secretary or his dele-

gate has been notified by either spouse

that separate residences have been es-

tablished, then, in lieu of the single

joint notice, a duplicate original of the

joint notice shall be sent be certified

mail or registered mail to each spouse at

his last known address.

(3) Estate Tax. --In the absence

of notice to the Secretary or his delegate

under section 6903 of the existence of a

fiduciary relationship, notice of a defi-

ciency in respect of a tax imposed by

chapter 1l, if addressed in the name of the

decedent or other person subjet to

liability and mailed to his last known

address, shall be sufficient for purposes

of chapter 11 and of this chapter.

(c) [as amended by Sec. 101(f£) (2),

Tax Reform Act of 1969, supra, and Sec.

102(d) (5), Excise, Estate, and Gift Tax

Adjustment Act of 1970, P.L. 91-614, 84

Stat. 1836] Further Deficiency Letters

Restricted. --

(1) General Rule. --If the

Secretary or his delegate has mailed to

the taxpayer a notice of deficiency as

provided in subsection (a), and the taxpayer

files a petition with the Tax Court within

the time prescribed in section 6213(a),

the Secretary or his delegate shall have

no right to determine any additional

deficiency of income tax for the same

taxable year, of gift tax for the same

calendar quarter, of estate tax in respect

of the taxable estate of the same decedent

of section 4940 tax for the same taxable

year, or of chapter 42 tax (other than under

4940) with respect to any act (or failure to

act) to which such petition relates, except

in the case of fraud, and except as provided

in section 6214(a) (relating to assertion of

greater deficiencies before the Tax Court),

in section 6213(b)(1) (relating to mathe-

matical errors), or in section 6861 (c)

(relating to the making of jeopardy assess-

ments).

SEC. 6213. RESTRICTIONS APPLICABLE TO

DEFICIENCIES; PETITION TO TAX COURT.

(a) [as amended by Sec. 101(j) (42),

Tax Reform Act of 1969, supra] Time for

Filing Petition and Restriction on Assess-

ment. --Within 90 days, or 150 days if the

notice is addressed to a person outside

the States of the Union and the District

of Columbia, after the notice of deficiency

authorized in section 6212 is mailed (not

counting Saturday, Sunday, or a legal

holiday in the District of Columbia as

the last day), the taxpayer may file a

petition with the Tax Court for a redeter-

mination of the deficiency. Except as

otherwise provided in section 6861 no

assessment of a deficiency in respect of

any tax imposed by subtitle A or B or

chapter 42 and no levy or proceeding in

court for its collection shall be made,

begun, or prosecuted until such notice has

been mailed to the taxpayer, nor until the

expiration of such 90-day or 150-day

period, as the case may be, nor, if a

petition has been filed with the Tax Court,

until the decision of the Tax Court has

become final. Notwithstanding the provisions

of section 742l1(a), the making of such

assessment or the beginning of such proceed-

ing or levy during the time such prohibition

is in force may be enjoined by a proceeding

in the proper court.

Due Process Clause, United States Constitution;

Amendment V.

No person shall be held to answer

for a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself, nor

be deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation.

Amendment XIV

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; now shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

STATEMENT

Petitioners herein filed a Petition

for Redetermination of Tax Deficiency with

the U.S. Tax Court on July 9, 1976, based

upon Notices of Deficiency issued to

Petitioners by Internal Revenue Service.

Petitioners then amended their petition

on July 13, 1976. (Reference being made

to Paul W. Mercer and Florence L. Mercer)

Respondent United States Tax Court

moved to Dismiss for Lack of Jurisdiction

as to John Does 1-5 and Jane Does 1-5

named in Petitioners' petition, on August

23, 1976, alleging no notices had been sent

to form a basis for appeal to the Court.

Petitioners filed their Objections to

Respondent's motion on September °2, 1976.

Also on said day, Petitioners, Paul W.

Mercer and Florence L. Mercer moved the

Court for Leave to File a Second Amendment

to Petition to include the matter of the

Statement of Tax Due received by said

=~“

petitioners on September 6, 1976, concerning

the tax year 1971.

Respondent filed its' Notice of

Objections to Petitioners' motion.

Petitioners, on October 26, 1976,

filed their Statement in Lieu of Personal

Appearance for the hearing set for November

3, 1976.

All motions were heard before the

Honorable Howard A. Dawson on November 3,

1976 at Washington, D.C. The Court

rendered its' Order upon said hearing,

granting all of Respondent's motions and

denying all of Petitioners’.

Petitioners thereafter, on November

30, 1976, filed a Motion for Reconsideration

of Findings. The Court denied said motion

on December 6, 1976.

Petitioners then filed Notice of Appeal

to the U.S. Court of Appeals For the Ninth

Circuit on January ll, 1976.

-10-

ARGUMENT

Petitioners in this case deny receiv-

ing notice of any deficiency concering the

tax year 1971 before September 6, 1976,

when they received a Statement of Tax

Due.

Petitioners have presented sworn

affidavits to the Court, setting forth

specific facts evidencing that they had

no notice prior to the said date of

September 6, 1976. Petitioners affidavits

were given no weight or consideration by

the Court. Said affidavits were uncon-

troverted by Respondent. By the very

nature of being uncontroverted, by the

substantive law of Arizona, the affidavits

must be taken as judicially admitted.

The Court must follow the substantive

law of the State of Arizona. The sub-

stantive law of Arizona being, as stated

supra, that affidavits, when uncontro-

verted, are judicial admission of the truth.

“lle

Compton v. National Metals Co.,10 Ariz. App.

366, 459 P2d 93, Also see Swansea Properties,

Inc. v. Hedrick, 3 Ariz. App. 594, 416 P2d 1015.

Respondent ha shown, by testimony

given, that, in fact, it was within

Respondent's particular knowledge that said

notice had not been received by Petitioners.

The very essence and essential elements

of Due Process of Law requires that there

be notice and an opportunity to be heard in

defense thereof. Anything short of this

opportunity to be heard and present evi-

dence in defense is clearly deprivation of

Petitioners’ constitutional rights.

Case law clearly upholds Petitioners’

position that notice, to be proper and

effective, must be received to afford a

just hearing before a substantial right

granted by statute can be taken away or

modified.

An elementary and fundamental require-

ment of due process in any proceeding which

-12<

is to be afforded finality is notice

reasonably calculated, under all the cir-

cumstances, to apprise interested parties

of the pendency of the action and afford

them an opportunity to present their

objections. Schroeder v. New York City,

89 ALR 2d 1398, 371 US 208, 9 L Ed 2d 255,

83 S Ct 279.

Petitioners had no notice until

September 6, 1976, and their motion to

include this notice, as to tax year 1971,

filed on September 22, 1976, was timely

made and they, therefor, should be given

an opportunity to be heard in defense of

said notice.

The Tax Court had denied Petitioners

the opportunity to be heard in defense of

a Notice of Deficiency as to the taxable

year 1971. The Court's denial is based

upon its' erroneous presumptions, which

petitioners contend they have rebutted by

evidence.

o13@

The Court determined that petitioners

had been afforded Due Process of Law.

However, evidence presented herein clearly

shows that the Court has made its' deter-

mination upon only presumptions.

Respondent has taken conflicting

positions in pleadings in this case. First

Respondent filed a Motion to Dismiss for

Lack of Jurisdiction upon the grounds that

no notices were sent which would place any

other matter before the jurisdiction of the

Court, and then turns around and bases

its’ objections to petitioners’ filing a

second amendment to their petition upon the

grounds that notices were given and that

said notices were received by petitioners

and that petitioners did not move timely to

include the notice as to the taxable year

1971, and therefor could not place it in

issue before the Court, all the time

knowing that petitioners did not receive

the Notice concerning 1971. These acts

-14-

upon the part of Respondent would certainly

appear to petitioners to violate the common

law doctrine of fairness.

The presumption that notice, having

been mailed, is received, can and has been

rebutted by specific, uncontroverted evidence

that such notice was, in fact, not received.

The presumption of due receipt of a letter

or other mail may be rebutted by evidence

that it was not in fact delivered or

received. Traders & General Ins. Co. v.

Malitz, C.A. La., 315 F 2d 171. Also see

Arkansas Motor Coaches v. C.I.R., C.A. 8,

198 F 2d 189.

In Cohen v. United States,297 F 2d 760

(C.A. 9, 1962), cert. denied, 369 U.S. 865

(1962), the court cites Tenzer v. Commi-

ssioner, 285 F 2d 956 (1960) stating:

"In that case notice was sent by

registered mail and returned to

the government; personal service

of notice was then made. We con-

cluded, citing Boren, and the

dissent in Dolezilek, that the 90

-15-

days ran from the time of personal

service, basing our holding on con-

siderations of fairness, and stating:

‘when the Commissioner chose

personal service, he abandoned

the other method.' (p. 958)."

The point Petitioners wish to make

in this quote is that the Court bases its

decision upon fairness. See Boren v.

Riddell, 241 F 2d 670 (C.A. 9, 1957).

Petitioners would strongly urge that

the fundamental purpose of the doctrine of

constitutional due process of law is to

afford any aggrieved party not only

notice but also an opportunity to a

hearing. Although, statutory provisions

for notice as to tax matters is not as

stringent as in other court jurisdictions,

notice must be received to be effective.

In discussing what is due process of

law (in Davidson v. New Orleans case)

Justice Bradley is quoted in People v.

Skinner, 149 ALR.299, 18 Cal 2d 349, 115

P2d 488, at page 493,

-16-

"In judging what is due process of

law, respect must be had to the

cause and the object of the taking--

whether under the taxing power, the

power of eminent domain, or the power

of assessment for local improvement

or none of these; and, if found to be

suitable or admissible in the special

case, it will be adjudged to be due

process of law, but, if found to be

arbitrary, oppressive, and unjust,

it may be declared to be not due

process of law."

Petitioners would point out that

Respondent appears to feel that there

is a distinction between due process with

regard to the Tax Court and due process

with regard to all other judicial levels.

However in the case of O'Brien v.

Commissioner, 62 T.C. 543 (1972), it was

pointed out by the U.S. Court of Appeals

For the Ninth Circuit in their quotation

from the Supreme Court's opinion in

Robinson v. Hanrahan, 409 U.S. 38 (1972)

that there is an elementary and fundamental

requirement in any proceeding, which would

indicate that the measure of due process

is identical, whether involving a tax case

elfe

or otherwise.

Petitioners strongly urge that not

only are the actions of Respondent, set

our supra, clearly against the common law

doctrine of fairness, but that in the case

before this Court, the decisions of the

lower court are arbitrary, oppressive and

unjust, as said decisions are based, not

upon clear evidence herein, but rather

upon the court's erroneous presumptions,

as argued supra.

Notice is the primary and most

fundamental pre-requisite to due process of

law under the Fifth and Fourteenth

amendments of the United States Constitution.

That the very cornerstone of our

judicial process requires a person to

have notice of any proceeding against

them and were by legislative enactment,

some other form of notice is allowed

beyond personal service, it should be and

must be narrowly construed that when one

-18-

party is allowed to give notice by

registered mail creating a presumption

of good service, and that party knows that

the mailed notice was not received, then

something more is required of that party.

CONCLUSION

For the foregoing reasons this

petition for a writ of certiorari should

be granted.

‘\

Respectfully submitted,

~— Pra . , Pixs

— -—

Paul W. Mercer

L & M Building

Suite l

4014 N. 7th Street

Phoenix, Arizona 85014

Attorney for Petitioners

7

-19-

Certificate of Service

“3

STATE OF ARIZONA

)

_— : Rota Feri

County of Maricopa ) otary ic

Paul W. Mercer, being first duly My Commission expires:

sworn, states: My Commission Expires May 26, 1581

That on the 9th day of March, 1978,

he caused 40 copies of Petition for Writ

of Certiorari to be mailed Air Express,

on behalf of Petitioners, to the followins:

Clerk of the Court

Supreme Court of the United States

Supreme Court Building

Washington, D.C. 20530

and that on said day of March, 1978,

he caused 3 copies of said Petition to

be mailed, regular mail, postage paid,

to the following:

Solicitor General of the

United States

Department of Justice

Washington, D.C. 20530

Signed this 9th day of March, 1978.

c ee.

Paul W. Mercer

A citizen of U.S.

over the age of 21

Subscribed and Sworn to before me this

9th day of March, 1978.

-20- -21-

UNITED STATES TAX COURT

Washington, D.C. 20217

Docket No. 6379-76

RICHARD A. WILSON and SHARON

L. WILSON, et al.,

Petitioners,

Vv.

COMMISSIONER OF INTERNAL REVENUE

Respondent,

MEMORANDUM SUR ORDER

Filed: December 6, 1976

Before: DAWSON, Chief Judge

On December 2, 1976, petitioners

filed a “Motion for Reconsideration of

Findings” requesting that the Court re-

consider its Order dated November 3,

1976, denying the motion of petitioners

Paul W. Mercer and Florence L. Mercer

for leave to file a second amendment to

their petition which would place the

taxable year 1971 in controversy herein.

A statutory notice of deficiency

covering the year 1971 was mailed, as

required by law, to Paul W. and Florence

L. Mercer at their last known address on

April 13, 1976. The time for filing

a timely petition seeking a redetermina-

tion of the deficiency for the year 1971

expired 90 days later, i.e., July 13,

1976. Separate notices of deficiencies

covering the year 1972 were also mailed

to Mr. and Mrs. Mercer on April 13, 1976,

and they both filed a timely petition

for that year on July 8, 1976. Thus the

Court has jurisdiction of the year 1972

but not for 1971.

Rule 41(a), Tax Court Rules of

Practice and Procedure, provides for

liberal amendments to pleadings except

for certain areas relating to the

petition which concern the jurisdiction

of the Court. Our jurisdiction is limited

with respect to (1) the taxpayers whose

tax deficiency may be redetermined and

(2) the years for which such redeter-

mination may pertain. As to the years

over which the Court has jurisdiction,

a case is fixed by a petition as or-

iginally filed or as amended within the

statutory period (90 days from the

mailing of the deficiency notice) for

filing the petition, and thereafter it

may not be changed by amendment to in-

clude a different tax year.

Here the motion for leave to

file the document lodged as a second

amendment to the petition, attempting

to invoke our jurisdiction as to the

year 1971, was not received by the

Court until September 27, 1976, which

was well beyond 90 days from the date

(April 13, 1976) the notice of defi-

ciency covering 1971 was meiled to the

Mercers. Consistent with Rule 4l(a),

Tax Court Rules of Practice and Procedure,

and in accord with our opinion in

Richard A. O'Neil, 66 T.C. 105 (1976),

it is concluded that this Court lacks

jurisdiction over the Federal income tax

deficiencies and penalties of Paul W.

and Florence L. Mercer for the taxable

year 1971. Therefore, it is

ORDERED: That the "Motion for

Reconsideration of Findings" is denied.

/s/

Howard A. Dawson, Jr.

Chief Judge

Dated: Washington, D.C.

December 6, 1976

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 77-1660

RICHARD A. WILSON and SHARON

L. WILSON, et al.,

Petitioners-Appellants,

Vv.

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

OPINION

Petition to Review a Decision

of the Tax Court of the

United States

Filed: November 25, 1977

Before: BROWNING, GOODWIN

and KENNEDY, Circuit Judges

The Commissioner of Internal

Revenue disapproved certain adjust-

ments made in respect to partner-

ship income for the tax year 1972

A2

and issued deficiency notices for

that year. The appellants, who

are individual taxpayers in the

partnership, then filed a single,

joint petition in the Tax Court

challenging that determination.

Ten Does were also named as peti-

tioners. Upon the Commissioner's

motion, the Tax Court dismissed the

Does for lack of jurisdiction and

struck a paragraph in the petition

relating to unnamed persons not be-

fore the court. The appellants

appeal those orders. We dismiss the

appeal for lack of jurisdiction. It

is now generally understood that

courts of appeals will review only

final decisions of the Tax Court.

Porter v. C.I.R., 453 F.2d 1231,

1232 (5th Cir. 1972); see 26 U.S.C.

§7482(a). Where, as here, there

has been no decision concerning the

tax liability of any of the parties

for the year 1972, we can entertain

no appeal. In addition, the Tax

Court ruled in essence that it could

not consider the cases of unknown,

unnamed persons who were in no way

before the court. This court can do

no more than the Tax Court. We

cannot rule on the status of ficti-

tious persons.

Appellants Paul W. Mercer and

Florence L. Mercer additionally

appeal the order of the Tax Court

denying their motion to amend the

petition to contest the Commissioner's

separate determination of a deficiency

for the tax year 1971.

This court has jurisdiction to

A3

consider the Mercers' appeal from

this order. The order had the effect

of dismissing the Mercers' petition

as to 1971 for lack of jurisdiction.

A decision of the Tax Court dismissing

a petition for lack of jurisdiction

is reviewable in this court on appeal.

See 26 U.S.C. §§7459(c), 7482(a),

(1567 & Supp. 1977). Dismissal of a

petition to contest a deficiency for

lack of jurisdiction because of late

filing leaves the Commissioner's

determination of tax liability for

the year in question final, and un-

reviewable by the Tax Court.

Rosewood Hotel Inc. v. C.I.R., 275

F.2d 786, 788 (9th Cir. 1960). See

26 U.S.C. §6213(c) (1967). On the

facts in this case, therefore, the

Tax Court's order is a final decision

on the cause of action arising out

of the Commissioner's determination of

a deficiency for 1971, cf. Commissioner

v. Sunnen, 333 U.S. 591, 595 (1948),

and is appealable. See Miami Valle

Coated Paper v. C.I.R., 211 F.2d i355

(6th Cir. 1954). C£. Fed. R. Civ. P.

54(b).

On the merits, we conclude that

the Tax Court was correct in denying

the Mercers' leave to amend the peti-

tion.

A notice of deficiency for 1971

was mailed to the Mercers on April 13,

1976. The Mercers' motion was filed

September 27, 1976. The motion was

not filed within the required 90-day

A4

period. 26 U.S.C. §§ 6212, 6213. Once

the 90-day period has run, an existing

petition cannot be amended to contest

the Commissioner's determination of a

deficiency for the additional year.

Kennedy v. C.I.R., 339 F.2d 335, 337

(7th Cir. 1964); O'Neil v. C.I.R., 66

T.C. 105 (1976); Estate of Archer,

47 B.T.A. 228 (1942).

Appellants claim they did not,

receive the notice of deficiency. |

They argue the 90-day period did not

begin to run until they received actual

notice of the existence of a deficiency

on September 6, 1976, and their petition

to the Tax Court was therefore timely.

*/ The Tax Court proceeded on the

basis that appellants’ claim is only

that they did not receive the notice

of deficiency, not that no notice ©

was issued. If appellants' claim is

that a notice of deficiency was never

issued, the result would be the same.

If the Commissioner did not issue a

notice of deficiency for 1971, the

Tax Court would be without jurisdiction

to redetermine appellants’ tax lia-

bility for that year and affirmance

would be required on this ground. See

Lang v. United States, 423 U.S. 161,

165 n.4, 1976; Dudley v. C.I.R., 258

F.2d 183 (3rd Cir. 1958). Cf. Delman

v. C.I.R., 384 F.2d 929, 934 (3rd Cir.

1967).

AS

We cannot agree. Section 6212

authorizes mailing the notice of

deficiency by certified or registered

mail to the last known address of the

taxpayer. Absent a claim of failure

to comply with the statutory procedure,

the 90-day period for petitioning the

Tax Court commences on the date of

mailing. There is no requirement that

the taxpayer actually receive the

notice of deficiency or have actual

notice of the claimed deficiency.

See DeWells v. United States, 378

F.2d 37, 39 (9th Cir. 1967); Cohen

v. United States, 297 F.2d 760, 775

(9th Cir. 1962). Appellants do not

challenge the date of mailing, or

allege any failure to comply with the

statutory procedure. The Tax Court

correctly held that the 90-day period

for petitioning for redetermination

of the claimed deficiency for 1971

began to run on April 13, 1976 and

that the Mercers' motion for leave

to amend the petition was therefore

untimely.

Appellants claim the Tax Court's

denial of leave to amend their petition

denies them due process. Actual

notice of a deficiency is not re-

quired because taxpayers who contest

the Commissioner's determinations

have alternate remedial routes. They

can seek to have the deficiency re-

determined in the Tax Court; or pay

the assessed sum and sue for a re-

fund in the United States District

Court. Although failure to file a

petition in the Tax Court within

A6

90 days of the mailing of a notice of UNITED STATES COURT OF APPEALS

deficiency forecloses a remedy in FOR THE NINTH CIRCUIT

that court, the doors of the district

court remain open. For the same

reason, it cannot be said that in-

ability to have one's case heard in

the Tax Court is a denial of due No. 77-1660

process. See Phillips v. Commissioner,

283 U.S. 589, 597-98 (1931); Cohen

v. United States, supra, 297 F.2d at RICHARD A. WILSON and SHARON

172. L. WILSON, et al.,

Petitioners-Appellants,

The order of the Tax Court re-

lating to the Mercers' claim for the Vv.

year 1971 is affirmed. The appeal

from other orders is dismissed for COMMISSIONER OF INTERNAL REVENUE,

lack of jurisdiction. Respondent-Appellee.

ORDER

Filed: January 13, 1978

Before: BROWNING, GOODWIN

and KENNEDY, Circuit Judges

The Petition for rehearing is

denied.