BOCCUTO v. C.I.R

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Docket Number

No. 13085.

Attorney(S)

Mark E. Dolin, Philadelphia, Pa., for petitioners. Charles B.E. Freeman, Washington, D.C. (Abbott M. Sellers, Acting Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Attys., Department of Justice, Washington, D.C., on the brief), for respondent.

Judges

Austin Leander Staley

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Smart Summary

Factual and Procedural Background

Thomas and Delilah Boccuto were assessed income tax deficiencies and penalties by the Commissioner of Internal Revenue for the years 1953, 1955, 1956, and 1957. The Commissioner mailed a notice of deficiency by registered mail to the taxpayers at their New Jersey address on November 13, 1958. The taxpayers claimed the notice was returned undelivered and that they actually received it on January 21, 1959, at the Internal Revenue Service office in Camden. Subsequently, a petition for redetermination was mailed to the Tax Court by certified mail, with evidence showing the petition was delivered to the post office on February 11, 1959, postmarked February 12, 1959, and received by the Tax Court on February 13, 1959.

The Commissioner moved to dismiss the petition for lack of jurisdiction, arguing the petition was not filed within the statutory ninety-day period following the mailing of the notice of deficiency. The Tax Court granted the motion and dismissed the petition. The taxpayers then petitioned for review of that dismissal.

Legal Issues Presented

Whether the Tax Court had jurisdiction to hear the petition given that the petition was mailed by certified mail within the ninety-day period but received after that period.
Whether the undated nature of the Commissioner's notice of deficiency prevented calculation of the ninety-day filing period, thereby requiring calculation from the date of actual service.
Whether the Commissioner had actual knowledge that the taxpayers were residing at a different address (Florida), affecting the validity of the notice sent to the New Jersey address.

Arguments of the Parties

Petitioners' Arguments

Delivery of the petition by certified mail to the post office within the ninety-day period should confer jurisdiction upon the Tax Court.
The Commissioner's notice of deficiency was undated, making it impossible to calculate the ninety-day limitation period; thus, the court should calculate from the date of actual service.
The Commissioner had actual knowledge that the petitioners resided in Florida, so the notice sent to their New Jersey address was not to their last known address.

Respondent's Arguments

The petition was not filed within the statutory ninety-day period after the notice of deficiency was mailed to the taxpayers' last known address, depriving the Tax Court of jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pfeffer v. Commissioner of Internal Revenue, 2 Cir., 1959, 272 F.2d 383	Actual receipt of notice is not required to start the statutory filing period if notice is mailed to the last known address.	Supported the court's conclusion that the ninety-day period runs from mailing to last known address regardless of actual receipt.
Gregory v. United States, 1944, 57 F. Supp. 962, 102 Ct.Cl. 642, cert. denied 326 U.S. 747	Confirmed that mailing notice to last known address suffices to start the filing period; also cited regarding failure to prove last known address.	Used to affirm that the Commissioner’s mailing to the New Jersey address started the limitation period and that petitioners failed to prove a different last known address.
Eppler v. Commissioner of Internal Revenue, 7 Cir., 1951, 188 F.2d 95	Notice mailed a second time without indication of first mailing can mislead taxpayer, affecting calculation of filing period.	Distinguished from the instant case because the notice here was dated and acknowledged, so the ninety-day period was calculable.
Rosewood Hotel, Inc. v. Commissioner of Internal Revenue, 1960, 9 Cir., 275 F.2d 786	Related to the issue of last known address and proper notice for jurisdiction.	Referenced in context of the necessity to prove the Commissioner lacked knowledge of the taxpayer’s current address to challenge jurisdiction.

Court's Reasoning and Analysis

The court analyzed the statutory framework governing notices of deficiency and petitions for redetermination, focusing on Internal Revenue Code sections 6212, 6213, and 7502. It emphasized that mailing the notice of deficiency by registered mail to the taxpayer’s last known address is sufficient to start the ninety-day period for filing a petition, regardless of actual receipt.

The court rejected the petitioners’ argument that timely delivery of the petition to the post office by certified mail within the ninety-day period conferred jurisdiction, noting that the implementing regulations for certified mail under section 7502(c)(2) were not in effect at the time. Therefore, only the postmark date on the envelope was relevant, which was after the ninety-day period.

Regarding the undated notice argument, the court found the notice was effectively dated by the petitioners’ own acknowledgment and the attached exhibit, making the ninety-day period calculable from the mailing date.

The court also addressed the claim that the Commissioner knew the petitioners resided in Florida and thus the New Jersey address was not the last known address. The petitioners failed to offer proof of this, and the Tax Court had given them an opportunity to do so. The petition itself listed the New Jersey address as their residence, supporting the Commissioner’s position.

Accordingly, the court affirmed the Tax Court’s dismissal for lack of jurisdiction due to untimely filing.

Holding and Implications

The order of the Tax Court dismissing the petition for lack of jurisdiction is affirmed.

The direct effect of this decision is the dismissal of the taxpayers’ petition because it was not timely filed within the statutory ninety-day period following the mailing of the notice of deficiency to their last known address. The court’s ruling reinforces the principle that the statutory filing period begins upon mailing of the notice to the last known address regardless of actual receipt, and that filing by certified mail before the deadline does not suffice absent proper postmark regulations. No new precedent was established beyond the application of existing statutory provisions and prior case law.

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Thomas and Delilah BOCCUTO, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

STALEY, Circuit Judge.

This petition for review presents the not uncommon question of whether the Tax Court erred in dismissing for lack of jurisdiction the taxpayers' petition for redetermination of the deficiencies asserted by the Commissioner of Internal Revenue.

The Commissioner of Internal Revenue determined deficiencies and penalties in the income tax of Thomas and Delilah Boccuto for the calendar years 1953, 1955, 1956, and 1957. On November 13, 1958, the Commissioner mailed a notice of deficiency by registered mail to the taxpayers at 35 Colmar Road, Colwick Gardens, Merchantville, New Jersey. The taxpayers assert that this letter was returned undelivered and that the notice was not actually received by the taxpayers until January 21, 1959, when it was handed to Thomas Boccuto in the Camden office of the Internal Revenue Service. Nonetheless, three weeks later a petition for redetermination was mailed to the Tax Court by certified mail. Evidence was presented to the Tax Court that on the ninetieth day following dispatch of the notice of deficiency, the envelope containing the petition was delivered to the post office and a receipt for certified mail stamped February 11, 1959, was obtained. This same envelope was produced by the Commissioner at the hearing and bore the postmark date February 12, 1959. Additionally, it was noted that the petition was not received and filed by the Tax Court until 2:17 P.M. on February 13, 1959.

The Commissioner filed a motion to dismiss the petition on the ground that the Tax Court lacked jurisdiction since the taxpayers failed to file the petition within ninety days after the notice of deficiency was mailed to their last known address. In a short, unreported order the Tax Court granted the motion and dismissed the case.

Petitioners' attack upon the dismissal is two-fold. They contend that delivery of the petition by certified mail to the post office within ninety days operated to confer jurisdiction upon the Tax Court, and secondly, they contend that the fact that the Commissioner's notice of deficiency was undated made it impossible to calculate the ninety-day limitation period and therefore the court should have calculated from the date of actual service. In their short presentation of this second issue, petitioners also raise a third ground that we feel merits discussion, i.e., whether the Commissioner had actual knowledge that petitioners were residing in Florida.

A number of sections in the Internal Revenue Code of 1954 are pertinent to the problems raised by petitioners. Section 6212, as amended, 26 U.S.C. (1958 ed.) § 6212, provides that the Secretary, upon a determination of deficiency, "is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail," and such notice if mailed to the taxpayer at his last known address shall be sufficient. The succeeding section, 26 U.S.C. (1958 ed.) § 6213, establishes the right of the taxpayer to file a petition with the Tax Court for a redetermination of deficiency if it is filed within ninety days after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). These sections must be read in light of Section 7502, 26 U.S.C. (1958 ed.) § 7502, which provides:

With regard to the deficiencies and penalties for calendar year 1953, the provisions of the Internal Revenue Code of 1939 would be applicable. The significant provisions of the 1939 Code, however, are substantially the same as the provisions of the Internal Revenue Code of 1954.

"§ 7502. Timely mailing treated as timely filing.

"(a) General rule. If any claim, statement, or other document (other than a return or other document required under authority of chapter 61), required to be filed within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such claim, statement, or other document is required to be filed, the date of the United States postmark stamped on the cover in which such claim, statement, or other document is mailed shall be deemed to be the date of delivery. This subsection shall apply only if the postmark date falls within the prescribed period or on or before the prescribed date for the filing of the claim, statement, or other document, determined with regard to any extension granted for such filing, and only if the claim, statement, or other document was, within the prescribed time, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency, office, or officer with which the claim, statement, or other document is required to be filed.

* * * * * *

"(c) [As amended by Section 89(a), Technical Amendments Act of 1958, P.L. 85-866, 72 Stat. 1606] Registered and certified mail.

"(1) Registered mail. If any such claim, statement, or other document is sent by United States registered mail, such registration shall be prima facie evidence that the claim, statement, or other document was delivered to the agency, office, or officer to which addressed, and the date of registration shall be deemed the postmark date.

"(2) Certified mail. The Secretary or his delegate is authorized to provide by regulations the extent to which the provisions of paragraph (1) of this subsection with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail."

As previously noted, the notice of deficiency was dispatched by registered mail to the petitioners on November 13, 1958. Assuming for the moment that the letter of deficiency was sent to the last known address of the petitioners, the ninety-day period of limitation runs from that date, and it is immaterial that the notice was returned undelivered for actual receipt of the notice by the taxpayers is not required in order that the statutory filing period commence. Pfeffer v. Commissioner of Internal Revenue, 2 Cir., 1959, 272 F.2d 383; Gregory v. United States, 1944, 57 F. Supp. 962, 102 Ct.Cl. 642, certiorari denied 326 U.S. 747, 66 S.Ct. 26, 90 L.Ed. 447. Pursuant to the sections of the Code set forth above, the petition to be timely must be received by the Tax Court within ninety days or postmarked within the ninety-day period and properly addressed with appropriate postage prepaid. This general rule is qualified insofar as registered mail is concerned by accepting the date of registration as the postmark date. 26 U.S.C. (1958 ed.) § 7502(c)(1).

The amendments to the Internal Revenue Code contained in the Technical Amendments Act of 1958, 72 Stat. 1606, authorized the Secretary of the Treasury to provide by regulations the extent to which the provisions relative to registered mail should apply to certified mail. The legislative history of the section clearly indicates that Congress was aware that such implementing regulations would not be issued until the "Post Office Department prescribes regulations requiring that the postal employee who postmarks a sender's receipt for certified mail actually mails the letter." 3 U.S. Code Cong. Adm. News (1958), pp. 4791, 4891. The Secretary did not issue implementing regulations until January 11, 1960, and they were not published until January 15, 1960. 25 Fed.Register 343. On the date that the instant petition was delivered to the post office, February 11, 1959, the regulations implementing subsection 7502(c)(2) thus had not been published. Clearly then, the receipt for certified mail which the taxpayers obtained at the time of delivery of the petition to the post office on February 11, 1959, is of no significance. Rather we are obliged to look at the date of postmark stamped on the envelope, to-wit, February 12, 1959, and that is not within the ninety-day period of limitation. The fact stressed by the taxpayers that the petition was actually delivered to the post office within the period of limitation and retained by a postal employee cannot be determinative, for Congress has explicitly set forth the allowable exceptions to the rule of actual receipt by the Tax Court within the specified time. Unless a taxpayer can fit himself within one of the statutory exceptions, he is bound by this rule.

At argument it was developed that prior to the issuance of the new postal regulations on September 21, 1959, mail was certified at the post office but was returned to the sender for actual mailing.

Petitioners' second contention, to the effect that since the Commissioner's notice of deficiency was undated it was impossible to calculate when the ninety-day period commenced, is equally untenable. The petition itself sets forth in paragraph 2 that "The notice of deficiency, a copy of which is attached and marked Exhibit A, was mailed to the petitioners on November 13, 1958, but was returned and personally served on petitioners on January 21, 1959." In addition, Thomas Boccuto receipted for the notice on January 21, 1959, which receipt states that the notice was originally sent to him and Delilah Boccuto on November 13, 1958. Thus, the case is unlike Eppler v. Commissioner of Internal Revenue, 7 Cir., 1951, 188 F.2d 95, where the notice was mailed a second time by registered mail with no indication of the first mailing and therefore the taxpayer was misled.

"Jan. 21, 1959
"This will acknowledge receipt this date of a statutory notice of deficiency issued by the District Director of Internal Revenue, Camden, New Jersey, on November 13, 1958, to Thomas and Delilah Boccuto, 35 Colmar Road, Colwick Gardens, Merchantville, New Jersey, with respect to the taxable years 1953, 1955, 1956, and 1957.
"/s/ Thomas Boccuto"

Lastly, the petitioners contend that the Commissioner had actual knowledge that they were residing in Florida. Although the argument is not specifically set forth in their brief, we gather that they mean to contend that the notice was not sent to their last known address. If that be so there would, of course, be no jurisdiction in the Tax Court and the case would have to be dismissed due to the failure of the Commissioner to properly notify them of the deficiencies. The petition itself indicates, however, that they reside at 35 Colmar Road, Colwick Gardens, Merchantville, New Jersey, the address used by the Commissioner. Furthermore, when the issue was raised in the Tax Court, upon the motion to dismiss for lack of jurisdiction, the court stated to petitioners that "If you want to show this was not the last known address to the Commissioner that would be something else again." This opportunity was never utilized, for there was no offer of proof. See Gregory v. United States, 1944, 57 F. Supp. 962, 102 Ct.Cl. 642, certiorari denied, 1945, 326 U.S. 747, 66 S.Ct. 26, 90 L.Ed. 447; cf. Rosewood Hotel, Inc. v. Commissioner of Internal Revenue, 1960, 9 Cir., 275 F.2d 786.

The order of the Tax Court will be affirmed.