# Petition — Mercer v. Commissioner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 832

## Text

~ ‘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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1138%3A1. Public record. Not legal advice.