1949 U.S. Tax Ct. LEXIS 158">*158
The petitioners' returns designated one address as that of the petitioners. A power of attorney, later executed, designated another address for the petitioners and directed that "all correspondence, documents, warrants, or other data" in connection with the taxation be sent in care of their attorney, whose address was also given in the power of attorney. Deficiency notices were mailed by registered mail to the address of petitioners given in the power of attorney and recited that copies would be mailed to the attorney at his address as given in the power of attorney. There was no evidence that he did not receive such copies. The petitions were filed more than ninety days after the date of the mailing to the petitioners at their address as given in the power of attorney. Petitions dismissed for lack of jurisdiction.
12 T.C. 1079">*1079 OPINION.
This matter arises on respondent's motions to dismiss for lack of jurisdiction, on the ground that the petitions were filed on the ninety-first day after mailing of the notices of deficiency. 1949 U.S. Tax Ct. LEXIS 158">*159 The petitioners do not controvert that fact, but oppose the motions on the ground that the notices of deficiency were not sent to the petitioners' last known address. From evidence adduced and stipulations made, we find the facts, which are identical as to each petitioner, to be as follows:
Notice of deficiency was mailed by the Commissioner of Internal Revenue to each of the petitioners by registered mail on July 15, 1948. It was addressed to 3619 East Gage Avenue, Bell, California, and was in due course received by each of the petitioners at that address. It recited, in part, that a copy "has been mailed to your representative, Mr. Monroe F. Marsh, c/o Edling, Hightower & Hunt, 424 South Beverly Drive, Beverly Hills, California, in accordance with the authorization contained in the power of attorney executed 12 T.C. 1079">*1080 by you." Petition was filed by each petitioner with The Tax Court of the United States on October 14, 1948, as to the calendar years 1944 and 1945. The income tax return of each petitioner for 1944 was received March 15, 1945, by the collector for the sixth district of California, and recited 6340 Loma Vista Avenue, Bell, California, as address. On August 12, 1949 U.S. Tax Ct. LEXIS 158">*160 1947, the internal revenue agent in charge, Los Angeles division, received a power of attorney reciting, in pertinent part, as follows: Know All Men by These Presents, That I, Bell Machine Co. ADDRESS hereby make, constitute and appoint * * * my true and lawful attorney * * *. And I hereby request and direct that all correspondence, documents, warrants or other data in connection with this matter be sent in care of * * * *
We find as an ultimate fact that the Commissioner mailed, by registered mail, the deficiency notices to the petitioners' last address known to him.
Petitioners' position is that the last known address of the petitioners was 424 South Beverly Drive, in care of their attorney, they having in the powers of attorney requested that "all correspondence, documents, warrants or other data in connection with this matter be sent in care of Monroe F. Marsh," whose address had appeared earlier in the power of attorney. It is stipulated that the notices were received by the petitioners in due course at 3619 East Gage1949 U.S. Tax Ct. LEXIS 158">*163 Avenue, Bell, California. That address had appeared below the name of each petitioner in the powers of attorney. The question presented to us is, therefore, whether, a petitioner having given both his own address and the address of an attorney in a power of attorney, the Commissioner is required to mail the notice of deficiency to the attorney at the address given for the attorney, instead of to the petitioner at his own address, because the petitioner has directed "all correspondence, documents, warrants or other data" to be sent in care of his attorney; and whether we should hold the deficiency notice insufficient to start the ninety-day period of limitation running despite the fact that the notices of deficiency were, as stipulated, received by the petitioners in due course at the address to which sent, that is, 3619 East Gage Avenue, Bell, California, the address given below the names of the petitioners on the power of attorney.
After carefully considering the record before us and the briefs of counsel, we have come to the conclusion and we hold that the Commissioner was not required under the facts here to mail the deficiency notice to the petitioners in care of their attorney, 1949 U.S. Tax Ct. LEXIS 158">*164 Monroe F. Marsh, 424 South Beverly Drive, Beverly Hills, California, that the last address of the petitioners known to the Commissioner was 3619 East 12 T.C. 1079">*1082 Gage Avenue, Bell, California, that the notices of deficiency were proper, that the petitions were not filed within ninety days thereafter, and that the petitions should be dismissed. There is no contention that the mailing was not by registered mail. The critical question is whether, though giving the Commissioner an address for himself, the taxpayer may require him to mail a notice of deficiency to some other designated address. The statute, section 272 (k), merely states that the notice shall be sufficient if mailed to the taxpayer at his last known address. The question of last known address is one of fact. . We do not understand the petitioners here to contend that there was any address known to the respondent later than the notification of 3619 East Gage Avenue, except the address given in the power of attorney as that of the attorney. Section 272 (k) makes no reference to any address designated by the taxpayer, but only to
The petitions, having been filed more than ninety days after the mailing by registered mail to the petitioners at their last known address, are