Rose C. Pfeffer, of the Estate of Emma Apisdorf, Deceased v. Commissioner of Internal Revenue

Second Circuit

Rose C. Pfeffer, of the Estate of Emma Apisdorf, Deceased v. Commissioner of Internal Revenue

272 F.2d 383, 4 A.F.T.R.2d (RIA) 5839, 1959 U.S. App. LEXIS 3058

CourtCourt of Appeals for the Second Circuit

DecidedNovember 19, 1959

Docket97, Docket 25754

StatusPublished

Cited by26 cases

This text of 272 F.2d 383 (Rose C. Pfeffer, of the Estate of Emma Apisdorf, Deceased v. Commissioner of Internal Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rose C. Pfeffer, of the Estate of Emma Apisdorf, Deceased v. Commissioner of Internal Revenue, 272 F.2d 383, 4 A.F.T.R.2d (RIA) 5839, 1959 U.S. App. LEXIS 3058 (2d Cir. 1959).

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Opinion

PER CURIAM.

Notice of the 1958 income tax deficiency against Emma Apisdorf was sent by registered mail to her last known address in New York — the address she gave on her tax return — on May 20, 1958, but was returned undelivered, since she had died the year before in Paris. On August 11, 1958, the Commissioner sent a second letter, addressed to her in care of her daughter, Mrs. Pfeffer, at the latter’s address, pointing out, however, that there was no statutory requirement of such remailing. This letter was received by Mrs. Pfeffer, to whom letters testamentary were issued later. The petition for review was filed with the Tax Court on November 10, 1958, i. e., within 90 days of the second letter, but not of the first.

*384 Under I.R.C.1939, § 272(a)(1), (f), and (k), 26 U.S.C.A. § 272(a) (1), (f, k), the first notice of deficiency was clearly sufficient; and since timely filing is made jurisdictional, the Tax Court correctly held that it could not hear the petition. Galvin v. C. I. R., 2 Cir., 239 F.2d 166. Cases cited, such as Dolezilek v. C. I. R., 94 U.S.App.D.C. 97, 212 F.2d 458, and Teel v. C. I. R., 27 T.C. 375, affirmed 10 Cir., 248 F.2d 749, do not hold to the contrary, while Eppler v. C. I. R., 7 Cir., 188 F.2d 95, and Cole v. C. I. R., 30 T.C. 665, affirmed 2 Cir., 272 F.2d 13, are not in point, since in each of these cases the first letter had been sent to the wrong address.

The decision of the Tax Court is affirmed.

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PER CURIAM.

Notice of the 1958 income tax deficiency against Emma Apisdorf was sent by registered mail to her last known address in New York — the address she gave on her tax return — on May 20, 1958, but was returned undelivered, since she had died the year before in Paris. On August 11, 1958, the Commissioner sent a second letter, addressed to her in care of her daughter, Mrs. Pfeffer, at the latter’s address, pointing out, however, that there was no statutory requirement of such remailing. This letter was received by Mrs. Pfeffer, to whom letters testamentary were issued later. The petition for review was filed with the Tax Court on November 10, 1958, i. e., within 90 days of the second letter, but not of the first.

*384 Under I.R.C.1939, § 272(a)(1), (f), and (k), 26 U.S.C.A. § 272(a) (1), (f, k), the first notice of deficiency was clearly sufficient; and since timely filing is made jurisdictional, the Tax Court correctly held that it could not hear the petition. Galvin v. C. I. R., 2 Cir., 239 F.2d 166. Cases cited, such as Dolezilek v. C. I. R., 94 U.S.App.D.C. 97, 212 F.2d 458, and Teel v. C. I. R., 27 T.C. 375, affirmed 10 Cir., 248 F.2d 749, do not hold to the contrary, while Eppler v. C. I. R., 7 Cir., 188 F.2d 95, and Cole v. C. I. R., 30 T.C. 665, affirmed 2 Cir., 272 F.2d 13, are not in point, since in each of these cases the first letter had been sent to the wrong address.

The decision of the Tax Court is affirmed.

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272 F.2d 383, 4 A.F.T.R.2d (RIA) 5839, 1959 U.S. App. LEXIS 3058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-c-pfeffer-of-the-estate-of-emma-apisdorf-deceased-v-commissioner-ca2-1959.

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