Dolezilek v. Commissioner of Internal Revenue

212 F.2d 458, 94 U.S. App. D.C. 97, 45 A.F.T.R. (P-H) 1439, 1954 U.S. App. LEXIS 4452

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 29, 1954
• Docket: 11766_1
• Status: Published

Opinions

WASHINGTON, Circuit Judge.

This is a petition for review of an order of the Tax Court of the United States. The petitioner, Fannie Dolezilek, filed no Federal income tax returns for the years 1946 through 1950. On March 11, 1952, the Commissioner of Internal Revenue mailed to her by registered letter a statutory notice of deficiency in respect to the years just mentioned, pursuant to Section 272 of the Internal Revenue Code, 26 U.S.C. § 272. The letter was properly addressed. It was, however, returned by the Post Office authorities stamped “Unclaimed — Refused.”¹ On April 25, 1952, a Deputy Collector went to petitioner’s home and personally handed her the notice of deficiency. The taxpayer later filed a petition for redetermination with the Tax Court pursuant to Section 272. This petition was filed more than ninety days after the letter was mailed, though less than ninety days after the manual delivery of the notice. The Commissioner moved the Tax Court to dismiss the petition for lack of jurisdiction, urging the statutory ninety-day limitation.² The Tax Court granted the motion. Appeal was taken from the resulting order.

Petitioner interprets the statute as not requiring actual receipt of notice, and says that ordinarily the ninety-day period is to be computed from the date of the registered mailing. She argues, however, that she was misled by the fact that the letter was delivered by hand. The manual delivery, she says, led her to believe that the ninety days were to be computed from it — and consequently it should be. We cannot agree. The statute flatly says that a petition may he filed with the Tax Court within ninety days “after such notice is mailed.” It makes no provision for manual delivery or for the computation of the ninety-day period from the date of such delivery. It specifically provides that “notice of a deficiency in respect of a tax imposed by this chapter, if mailed to the taxpayer at his last known address, shall be sufficient for the purposes of this chapter * * * .”³ Petitioner had, we think, no cause for confusion. Moreover, after her receipt of actual notice she could have made a timely filing in the Tax Court: some forty-five of the ninety days were left, and there is no suggestion that this was not ample.

We hold, therefore, that where a taxpayer receives actual notice of deficiency during the ninety-day period, and has adequate time remaining within that period for preparing and filing his petition, he is not entitled to compute the period from a date other than that of mailing.⁴ We need not say what re-suit would follow if actual notice is never received, or where the time remaining is inadequate. We decide only the present case. And we note that our holding here does not leave petitioner without remedy. A taxpayer, after a deficiency has been collected, can claim a refund of the amount collected and if necessary can file suit on the refund claim.⁵

Petitioner further urges that as a member of the Sioux Tribe of Indians she is a ward of the United States; that the income here in question was derived from restricted trust lands under the jurisdiction of the United States; and that the Secretary of the Interior, as her guardian, should have received notice of the tax deficiency charged against her. We consider these contentions irrelevant to the issue of the Tax Court’s jurisdiction.⁶ Petitioner’s status as an Indian cannot in any event extend the time available to her for petitioning the Tax Court, as an aggrieved taxpayer. She presented herself to the Tax Court in that capacity. One who seeks to avail himself of a special statutory remedy must comply with the conditions and time limits prescribed by the statute.

For these reasons the order of the Tax Court must be

Affirmed.

1 . A government memorandum introduced in evidence states that the Deputy Collector was advised by tlie “Postmaster” that two notices were given the petitioner that the letter was there for her and that she refused to accept it. An affidavit of the “Postmistress” states only that petitioner never claimed the registered letter.

2 . Section 272 says that “the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail.” Within ninety days “after such notice is mailed * * * the taxpayer may file a petition with the Tax Court of the United States for a redotermination of the deficiency.”

3 . The statute adds “ * * * even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.” 26 U.S.O. § 272(k) (1952).

4 . Eppler v. Commissioner, 7 Cir., 1951, 188 F.2d 95, is not to the contrary. There a notice was returned after mailing, having been wrongly addressed. The Commissioner then sent a second letter by registered mail, without advising the taxpayer of the first mailing. In the instant case, of course, the notice was properly addressed, and no second mailing was made. Compare also Commissioner of Internal Revenue v. Stewart, 6 Cir., 1951, 186 F.2d 239, 24 A.L.R.2d 793, where it was held that the taxpayer could waive strict compliance with the statutory notice provisions, and file his petition within ninety days after notice was mailed to Ms attorney. Neither case answers the question presented in the present one.

5 . See Stebbins’ Estate v. Helvering, 1941, 74 App.D.C. 21, 121 F.2d 892.

6 . It is not necessary for purposes of this case to decide whether or not an Indian situated as is the petitioner is subject to Federal taxes on Ms income. That is á question wMch may perhaps be settled in appropriate proceedings. Cf. Choteau v. Burnet, 1931, 283 U.S. 691, 51 S.Ct. 598, 75 L.Ed. 1353; Superintendent Five Civilized Tribes v. Commissioner, 1935, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517; Jones v. Taunah, 10 Cir., 186 F.2d 445, certiorari denied, 1951, 341 U.S. 904, 71 S.Ct. 613, 95 L.Ed. 1343; Strom v. Commissioner, 6 T.C. 621, affirmed per curiam, 9 Cir., 1947, 158 F.2d 520.