Damian K. Gregory & Shayla A. Gregory v. Commissioner

152 T.C. No. 7

• Court: United States Tax Court
• Decided: March 13, 2019
• Docket: 1465-17
• Status: Unknown

Opinion

152 T.C. No. 7

UNITED STATES TAX COURT

DAMIAN K. GREGORY AND SHAYLA A. GREGORY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1465-17. Filed March 13, 2019.

Ps moved from Jersey City, New Jersey, to Rutherford, New Jersey. After they moved, they filed their joint 2014 Federal income tax return using their old address. During an examination of Ps’ 2014 return, Ps submitted Forms 2848, Power of Attorney and Declaration of Representative, showing their new address. While the examination was ongoing, Ps submitted a Form 4868, Application for Automatic Extension of Time To File U.S. Individual Income Tax Return, also showing their new address. The Commissioner mailed a notice of deficiency to Ps at their old address. Ps filed an untimely petition. R moved to dismiss for lack of jurisdiction, arguing that Ps filed an untimely petition. Ps moved to dismiss for lack of jurisdiction, arguing that R failed to send the notice of deficiency to their last known address.

A notice of deficiency provides sufficient notice if sent to the taxpayer’s last known address. I.R.C. sec. 6212(b)(1). A taxpayer’s last known address is the address shown on the most recently filed and properly processed return unless updated by clear and concise -2-

notification of a different address. Sec. 301.6212-2(a), Proced. & Admin. Regs.

Held: Form 2848 does not constitute a return for purposes of updating a taxpayer’s last known address.

Held, further, Form 2848 does not constitute clear and concise notification of a different address.

Held, further, Form 4868 does not constitute a return for purposes of updating a taxpayer’s last known address.

Held, further, Form 4868 does not constitute clear and concise notification of a different address.

Held, further, R’s notice of deficiency was sufficient because it was sent to Ps’ last known address.

Stephen J. Dunn, for petitioners.

Rebecca M. Clark, for respondent.

OPINION

BUCH, Judge: The Gregorys moved in 2015, but when they later filed their

2014 return, they used their old address. After they filed that return, the Gregorys

submitted three forms to the Commissioner, each of which explicitly stated, either

on the form itself or on the form’s instructions, that those forms would not be -3-

recognized by the Commissioner for the purpose of updating a taxpayer’s address.

The Commissioner mailed a notice of deficiency to the address on the Gregorys’

2014 return. They did not receive it in time to file a timely petition, so their

petition was late.

We are now faced with cross-motions to dismiss for lack of jurisdiction.

The Gregorys argue that the notice of deficiency is invalid because the

Commissioner did not mail it to their last known address. The Commissioner

argues that the Gregorys did not timely file their petition. We will grant the

Commissioner’s motion because he mailed a valid notice of deficiency to the

Gregorys at their last known address, and the Gregorys did not timely file their

petition.

Background

The Gregorys moved from Jersey City, New Jersey, to Rutherford, New

Jersey, on June 30, 2015. But when the Gregorys filed their 2014 Federal income

tax return on October 15, 2015, they incorrectly used their old Jersey City address.

The Gregorys first used the Rutherford address in correspondence with the

Commissioner when they submitted Forms 2848, Power of Attorney and

Declaration of Representative, in November of 2015. In April of 2016 the

Gregorys used the Rutherford address again when they submitted a Form 4868, -4-

Application for Automatic Extension of Time To File U.S. Individual Income Tax

Return.

On October 13, 2016, the Commissioner sent by certified mail a notice of

deficiency to the Gregorys at their Jersey City address. At that time the Gregorys

had not yet filed their 2015 Federal income tax return. On November 11, 2016,

the U.S. Postal Service marked the notice “Return To Sender/Unclaimed/Unable to

Forward” and returned it to the Commissioner. The parties do not dispute that the

Gregorys did not actually receive the notice of deficiency.

The Gregorys became aware of the notice of deficiency on January 17,

2017, and filed their petition that day. At the time the petition was filed they lived

in Rutherford, New Jersey.

Discussion

I. Jurisdiction and Standard of Review

We are a court of limited jurisdiction. We may only exercise jurisdiction

over the matters Congress has expressly authorized us to consider. See sec. 7442;1

Estate of Young v. Commissioner, 81 T.C. 879, 881 (1983). But we always have

1 All section references are to the Internal Revenue Code in effect for the year in issue, unless otherwise indicated. -5-

jurisdiction to determine whether we have jurisdiction. Cooper v. Commissioner,

135 T.C. 70, 73 (2010).

We have deficiency jurisdiction--jurisdiction “to redetermine the correct

amount of * * * [a] deficiency”--when (1) the Commissioner mails a valid notice

of deficiency to the taxpayer and (2) the taxpayer timely files a petition with us

disputing the deficiency. Secs. 6214(a), 6213(a). “A valid notice of deficiency is

therefore both the necessary ‘ticket to the Tax Court,’ i.e., it permits the taxpayer

to file a petition which is necessary for the Court to obtain jurisdiction, and it is a

prerequisite to the assessment of the deficiency, with certain exceptions.” Baron

v. Commissioner, 71 T.C. 1028, 1034 (1979). If the notice is not validly sent or

the petition is not timely filed, we do not have jurisdiction to redetermine the

deficiency. There is no dispute that the petition was not filed within 90 days of the

date the notice of deficiency was mailed to the Gregorys.

Even though we do not have jurisdiction to review the deficiency, we have

jurisdiction to decide why we do not have jurisdiction, either because the petition

was not timely filed or because the notice of deficiency was not sent to the last

known address. See McKay v. Commissioner, 89 T.C. 1063, 1067 (1987), aff’d,

886 F.2d 1237 (9th Cir. 1989). The only issue before us is whether the notice of

deficiency was mailed to the Gregorys’ last known address. -6-

II. The Last Known Address

The Commissioner properly sends a notice of deficiency if he mails the

notice to the taxpayer at the taxpayer’s last known address regardless of whether

the taxpayer actually receives the notice. Sec. 6212(a) and (b)(1); see McKay v.

Commissioner, 89 T.C. at 1067. A taxpayer’s last known address is “the address

that appears on the taxpayer’s most recently filed and properly processed Federal

tax return, unless the Internal Revenue Service (IRS) is given clear and concise

notification of a different address.” Sec. 301.6212-2(a), Proced. & Admin. Regs.

The regulations go on to provide: “Further information on what constitutes clear

and concise notification of a different address and a properly processed Federal

tax return can be found in Rev. Proc. 90-18 (1990-1 C.B. 491) or in procedures

subsequently prescribed by the Commissioner.”2 Id. The procedures prescribed

by the Commissioner at all relevant times can be found in Rev. Proc. 2010-16,

2010-19 I.R.B. 664.

2 Rev. Proc. 90-18, 1990-1 C.B. 491, was amplified and superseded by Rev. Proc. 2001-18, 2001-1 C.B. 708, which was superseded by Rev. Proc. 2010-16, 2010-19 I.R.B. 664. -7-

A. Most Recently Filed and Properly Processed Return

Not every document submitted to the Commissioner is a return. Some

forms are obviously returns, such as Form 1040, U.S. Individual Income Tax

Return, filed by the Gregorys. The most recently filed and properly processed

Form 1040 before the Commissioner mailed the notice of deficiency was the

Gregorys’ 2014 return showing the Jersey City address. The only other forms

submitted to the IRS by the Gregorys after filing that return and before the mailing

of the notice of deficiency were two Forms 2848 and Form 4868. Those forms

showed the Gregorys’ new address. But neither is a return.

These forms do not fall within the class of documents that are typically

considered to be returns. Most commonly, a return is a document that is used to

report a tax liability. See. e.g., Beard v. Commissioner, 82 T.C. 766 (1984), aff’d,

793 F.2d 139 (6th Cir. 1986). Under what is commonly called the Beard test, for

example, a return must meet the following criteria: “First, there must be sufficient

data to calculate tax liability; second, the document must purport to be a return;

third, there must be an honest and reasonable attempt to satisfy the requirements of

the tax law; and fourth, the taxpayer must execute the return under penalties of

perjury.” Id. at 777. Neither Form 2848 nor Form 4868 meets any of these

criteria: They do not provide any data necessary for calculation of a taxpayer’s tax -8-

liability, they do not purport to be returns, and they cannot reasonably be

considered attempts at making a return.

By regulation the Secretary has stated that what constitutes a properly

processed Federal tax return would be set forth in procedures prescribed by the

Commissioner. Sec. 301.6212-2(a), Proced. & Admin. Regs. The procedures in

place at the relevant time can be found in Rev. Proc. 2010-16, which provides a

list of IRS forms that are and are not returns, specifically for the purpose of

establishing whether a document is a return for purposes of updating a taxpayer’s

last known address. The revenue procedure explicitly states that Form 1040 is a

return but that Forms 2848 and 4868 are not. Rev. Proc. 2010-16, sec. 5.01(1)(a),

(4), 2010-19 I.R.B. at 665, 666.

Having concluded that neither the Forms 2848 nor the Form 4868

constituted a return for purposes of updating the Gregory’s last known address, we

must separately consider whether either of those forms constituted clear and

concise notice of the Gregorys’ new address.

B. Clear and Concise Notice

The Gregorys argue that their Forms 2848 and their Form 4868 provided the

Commissioner with clear and concise notification of a different address. If they

are correct then the Commissioner did not mail the notice of deficiency to their -9-

last known address. But the forms and their instructions for the year in issue

explicitly disavow their use to update a taxpayer’s address, and they do not meet

the requirements for clear and concise notification set forth by Rev. Proc. 2010-16.

1. Forms 2848 and 4868 and Their Instructions

The Gregorys did not give the Commissioner clear and concise notice of a

different address by filing Forms 2848 or Form 4868.

Form 2848 and its instructions make clear that the form does not provide the

Commissioner with clear and concise notification that the taxpayer’s address has

changed. The instructions to the 2014 Form 2848 explicitly state: “Address

information provided on Form 2848 will not change your last known address with

the IRS.” The 2014 Form 2848 also explicitly cautions users that it will “not be

honored for any purpose other than representation before the IRS.” The

Commissioner has conveyed to taxpayers that Form 2848 will not change their last

known address. In effect, the Gregorys used forms that explicitly state that they

are not to be used to update a taxpayer’s address but now want the Commissioner

to honor those forms to update to their address.

Similarly, the instructions to the 2015 Form 4868 warn taxpayers that filing

the form will not update their address. The instructions state: “If you changed

your mailing address after you filed your last return, you should use Form 8822, - 10 -

Change of Address, to notify the IRS of the change. Showing a new address on

Form 4868 will not update your record.”

2. Rev. Proc. 2010-16

Our conclusion based on the plain text of the forms and instructions is

consistent with the Commissioner’s guidance. Rev. Proc. 2010-16 is explicit that

Form 2848 and Form 4868 are not clear and concise notice. It explains:

The term “return” does not include applications for extension of time to file a return or powers of attorney. Thus, for example, a new address listed on Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, or on a Form 2848, Power of Attorney and Declaration of Representative, will not be used by the Service to update the taxpayer’s address of record.

Rev. Proc. 2010-16, sec. 5.01(4). While the revenue procedure does not directly

address whether these forms could be used to give clear and concise notification, it

implies that conclusion by stating that the forms will not be used to update the

taxpayer’s address of record.

Additionally, according to Rev. Proc. 2010-16, sec. 5.04(1)(a), clear and

concise notification, when made in written form (as opposed to electronic or oral

forms), is a signed statement “mailed to an appropriate Service address” that tells

the Commissioner that the taxpayer has a new address and “[i]n addition * * *

contain[s] the taxpayer’s full name and old address as well as the taxpayer’s social - 11 -

security number, individual taxpayer identification number, or employer

identification number.” Neither Form 2848 nor Form 4868 purports to inform the

IRS that it should be interpreted as a request to change the taxpayer’s last known

address, and neither form contains the taxpayer’s old address.

3. Prior Versions of Form 2848

Our holdings regarding prior versions of Form 2848 do not help the

Gregorys. Prior caselaw focused on the text of the form in use at that time. Since

then, the Commissioner has published new guidance relating to updating a

taxpayer’s last known address, and the Commissioner has revised the text of Form

2848.

In 2004 we considered a prior version of Form 2848 when deciding

“whether * * * [the taxpayer], by listing his new address on his power-of-attorney

form, gave respondent ‘clear and concise notification’ of his new address.”

Hunter v. Commissioner, T.C. Memo. 2004-81, 87 T.C.M. (CCH) 1143, 1144

(2004).3 We held that the December 1997 version of Form 2848 using the

taxpayer’s new address and requesting copies to be sent to his attorney gave the

Commissioner clear and concise notice that the taxpayer had changed his address

3 Mr. Hunter signed his Form 2848 in October of 1998. Presumably the form he signed was the December 1997 verison. - 12 -

from the address previously on record. A critical part of our reasoning was that

“[n]othing compels the Commissioner to ask taxpayers to list their address on a

Form 2848. By doing so, and by using that requested information to identify

taxpayers within IRS records, respondent bears the burden of conforming his

actions to the knowledge at his disposal.” Id. at 1146. We noted that “taxpayers

are put in the position of quite reasonably assuming that the address information

they provide to the IRS will be noted and acted upon.” Id.

But that assumption is no longer reasonable. Since 2004 the Commissioner

has issued clear guidance informing taxpayers of what actions will and will not

change their last known address with the Commissioner. We noted in Hunter that

section 301.6212-2, Proced. & Admin. Regs., which had been issued in January

2001 to define the term “last known address”, was not yet effective; it is effective

for this case. And at the time we decided Hunter, Rev. Proc. 2001-18 had not yet

been superseded by Rev. Proc. 2010-16. The earlier revenue procedure did not

specifically address Form 2848. And perhaps most notably, the warning on the

Form 2848 that it would not be used for any purpose other than representation was

not included in the form at issue in Hunter, and the instructions to Form 2848 were

silent regarding a taxpayer’s last known address. The Forms 2848 at issue here - 13 -

expressly state that they will not be honored for any purpose other than

representation before the IRS.

When confronted with an even older version of Form 2848, the U.S. Court

of Appeals for the Third Circuit, the circuit court to which appeal in this case

would normally lie, found that taxpayers changed their last known address to that

of their authorized representatives via their powers of attorney. Expanding

Envelope & Folder Corp. v. Shotz, 385 F.2d 402 (3d Cir. 1967). Using Form

2848, the taxpayers directed that “‘all correspondence addressed to the taxpayers

in proceedings involving’ the years in question here should be sent to the

designated attorneys-in-fact at the address specified in the powers.” Id. at 403.

The taxpayers had crossed out the words “copies of” and written “all” on the

portion of the power of attorney form directing correspondence to be sent to their

attorneys. Id. at 404. And, like the form considered in Hunter and unlike the

forms used by the Gregorys, the form considered by the Court of Appeals did not

explicitly disavow its use as a change of address form.

The history of Form 2848 shows how the issue of whether and when the

form will change a taxpayer’s address of record has shaped the current version of

the form. The 1986 version of Form 2848 was the first version to provide a box

for taxpayers to check to request that their representative receive originals of all - 14 -

notices. In 2004 this option was removed and a statement that “[o]riginal notices

* * * will be sent to you and a copy to the first representative listed” replaced it.

In 2011 the form was revised to make no statement regarding where originals

would be sent but provided taxpayers with an option to check a box directing that

their representatives be “sent notices and communications”. In 2014 the directions

for this box were changed to “[c]heck if to be sent copies of notices and

communications”. (Emphasis added.) At the time the Gregorys executed their

Forms 2848, the Commissioner had removed from the Form 2848 options to direct

where original notices are to be sent.

III. Conclusion

A taxpayer does not provide the Commissioner with clear and concise

notification of a different address by submitting Form 2848 or Form 4868.

Therefore, because the Gregorys did not provide the Commissioner with clear and

concise notification of a different address, the Jersey City address used on their

most recently filed and properly processed return was their last known address.

The Commissioner sent a valid notice of deficiency to that address. Because the

Gregorys’ petition was not timely, we will grant the Commissioner’s motion to

dismiss for lack of jurisdiction. - 15 -

To reflect the foregoing,

An appropriate order and order of

dismissal for lack of jurisdiction will be

entered.