McWhinney v. Commissioner

698 F. App'x 423

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2017
• Docket: 16-72590
• Status: Unpublished

Opinion

memorandum: **

Sean C. MeWhinney and Connie Peder-sen (“taxpayers”) appeal from the Tax Court’s order dismissing for lack of subject matter jurisdiction their petition for rede-termination challenging the notice of defi-cien'cy for the tax years 2011 and 2012. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the Tax Court’s dismissal for lack of subject matter jurisdiction, Gorospe v. Comm’r, 451 F.3d 966, 968 (9th Cir. 2006), and we affirm.

The Tax Court properly dismissed taxpayers’ petition for lack of subject matter jurisdiction because taxpayers failed to file their petition within ninety days from the mailing of the notice of deficiency. See 26 U.S.C. § 6213(a) (petition for redetermination must be filed “[wjithin 90 days ... after the notice of deficiency ... is mailed”); Correia v. Comm’r, 58 F.3d 468, 469 (9th Cir. 1995) (“The timely filing of a-petition for redetermination is a jurisdictional requirement.”).

Contrary to taxpayers’ contention, the notice of deficiency was valid because it was sent to taxpayers’ last known address. See 26 U.S.C. § 6212(b)(1); Williams v. Comm’r, 935 F.2d 1066, 1067 (9th Cir. 1991) (“A notice of deficiency is valid if it is mailed to the taxpayer’s last known address even if it is not received by the taxpayer.”); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984) (explaining that the last known address is the one “on [the taxpayer’s] most recent return, unless the taxpayer communicates to the IRS clear and concise notice of a change of address”). We reject as without merit taxpayers’ contentions that the notice of deficiency was not valid because it was not mailed to their power of attorney, and that the issuance of the deficiency notice deprived taxpayers of their day in court.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. .