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Delman v. Commissioner of Internal Revenue

decided: October 10, 1967.

JOSEPH DELMAN AND JEANETTE DELMAN, PETITIONERS,
v.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT



Smith, Freedman and Seitz, Circuit Judges.

Author: Smith

Opinion OF THE COURT

WILLIAM F. SMITH, Circuit Judge.

This matter is before us on a petition to review an order of the Tax Court which dismissed as untimely taxpayers' petition for redetermination of 1960 and 1961 income taxes. The material facts as found by the Tax Court are not disputed. A notice of tax deficiencies for the years 1960 and 1961 was sent by certified mail to the taxpayers on December 23, 1964, addressed as follows:

Mr. Joseph Delman and

Mrs. Jeanette Delman

Husband and Wife

c/o Goodman, Israelow & Lipton

249 Clinton Avenue

Newark, New Jersey

A copy of this notice was sent by ordinary mail on the same day to taxpayers' attorney, Martin D. Cohen.

Both Cohen and the accounting firm of Goodman, Israelow & Lipton received the notice on December 24, 1964. Goodman et als mailed the original to Cohen on that same date and he received it on December 28, 1964. On the latter date Cohen notified the taxpayer, Joseph Delman, of the notice by telephone. Cohen forwarded a copy of the notice of deficiency to the taxpayers during the week of December 28, and it was received by them on January 4, 1965.

Taxpayers' petition to the Tax Court was filed on April 5, 1965, 103 days after the notice of deficiency was mailed. Section 6213 of the Internal Revenue Code*fn1 provides that a petition for redetermination may be filed within 90 days of the mailing of the notice. On its face taxpayers' petition was out of time.

It is the taxpayers' primary argument that the notice of deficiency was invalid because it was not mailed to their last known address and that mailing to the last known address is essential to the jurisdiction of the Tax Court. If this argument is correct the notice would have no effect and would not have ...


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