Estate of Krueger v. Commissioner

33 T.C. 667, 1960 U.S. Tax Ct. LEXIS 231

• Court: United States Tax Court
• Decided: January 12, 1960
• Docket: Docket No. 82471
• Status: Published

Opinions

OPINION.

Murdock, Judge:

The Commissioner mailed a notice on April 10, 1959, to—

Estate of William Krueger, Deceased

Anna Krueger, Administratrix, and

Mrs. Anna Krueger, Surviving Wife

10230 South Walden Parkway

Chicago 43, Illinois

determining a deficiency in income tax for 1955. Anna filed a petition with the Court for her seif and as Administratrix of William’s estate pursuant to that notice, on August 18, 1959, which was more than 90 days but less than 150 days after the mailing of the notice of deficiency. The Commissioner moved to dismiss the proceeding for lack of jurisdiction on the ground that the petition was not filed within the 90-day period required by law. The petitioners filed an objection to the granting of the motion on the ground that they had 150 days within which to file the petition. The motion came on for hearing on December 16, 1959, prior to which time the parties had filed a stipulation of facts.

Anna resides at the address to which the notice of deficiency was mailed. She is the widow of William Krueger who died on February 19, 1957. They filed a joint return for 1955. Anna was outside the United States on a world cruise from January 17, 1959, to May 9, and on April 10, 1959, the day on which the notice of deficiency was mailed, she was in Yokohama, Japan.

Section 272(a) (1) of the 1939 Code requires that a petition be filed within 90 days after the mailing of the notice. The last sentence of that section is as follows: “If the notice is addressed to a person outside the States of the Union and the District of Columbia, the period specified in this paragraph shall be one hundred and fifty days in lieu of ninety days.” The Tax Court, in Rebecca S. Hamilton, 13 T.C. 747, interpreted the quoted sentence as meaning that the taxpayer should have 150 days within which to file the petition if the person, to whom the notice of deficiency was addressed, was outside the United States and that it did not refer to an address outside the United States. This interpretation was approved by the Court of Appeals for the Second Circuit in Mindell v. Commissioner, 200 F. 2d 38. However, the court in the Mindell case added:

But we cannot agree with its additional conclusion in that case, 13 T.C. at page 753, that the statute grants the 150 day period only to persons outside the designated area “on some settled business and residential basis, and not on a temporary basis * * * .» We nothing in the language of the statute or in its legislative history to suggest that Congress intended to differentiate between persons temporarily absent from the United States and persons “regularly residing” abroad. Whatever the reason for the taxpayer’s absence from the country receipt of the deficiency notice was likely to be delayed if he was not physically present at the address to which the notice was sent; hence he was given additional time to apply for review of the deficiency.

The Tax Court agrees with the opinion of the Court of Appeals for the Second Circuit in the Mindell case and has held in the present case that the petition filed after 90 days, but within 150 days from the mailing of the notice, was timely filed. The statutory provision applicable here is section 6213(a) of the 1954 Code but it contains provisions similar to those quoted above.

Reviewed by the Court.