Heaberlin v. Comm'r, 34 T.C. 58 (Tax Ct. 1960). · Go Syfert
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Heaberlin v. Comm'r, 34 T.C. 58 (Tax Ct. 1960). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1971 · …and obviously the taxpayer suffered no damage and lost no right as a result of the error in the address. ≈ altered
65 citation events (1 in the last 25 years) across 5 distinct courts.
Strongest positive: Frieling v. Commissioner
Treatment trajectory · 1960 → 2026 · click a year to view as-of
1960 1993 2026
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Frieling v. Commissioner (2×)
unknown court · 1983 · confidence medium
See also Delman v. Commissioner, 384 F.2d 929, 932 (3d Cir. 1967), affg. a Memorandum Opinion of this Court, cert. denied 390 U.S. 952 (1968), where the court concluded that this legislative history showed that sec. 6212(b)(1) was enacted to protect the Secretary and was not a "sword to be used by the taxpayer.” See, e.g., DeWelles v. United States, 378 F.2d 37, 39 (9th Cir. 1967), cert. denied 389 U.S. 996 (1967); Keeton v. Commissioner, 74 T.C. 377, 381 (1980); Estate of McKaig v. Commissioner, 51 T.C. 331, 336 (1968); Heaberlin v. Commissioner, 34 T.C. 58, 59 (1960); Foster v. Commissione…
discussed Cited as authority (rule) Looper v. Commissioner
unknown court · 1980 · confidence medium
Although some cases can be read to suggest that a notice of deficiency sent to other than a taxpayer’s “last known address” cannot qualify as a proper statutory notice for purposes of conferring jurisdiction on the Court (see Heaberlin v. Commissioner, 34 T.C. 58, 59 (1960), and Carbone v. Commissioner, 8 T.C. 207, 212 (1947)), it is now well settled that a notice of deficiency is valid even though there are errors in the mailing address when the “taxpayer receives notice within ample time to file a timely petition.” Brzezinski v. Commissioner, 23 T.C. 192, 195 (1954).
cited Cited as authority (rule) Reddock v. Commissioner
Tax Ct. · 1979 · confidence medium
See, e.g., O’Brien v. Commissioner, 62 T.C. 543, 548 (1974); Heaberlin v. Commissioner, 34 T.C. 58, 59 (1960).
cited Cited as authority (rule) Shelton v. Commissioner
Tax Ct. · 1974 · confidence medium
Heaberlin, 34 T.C. 58, 59 (1960); Nathan Lerer, 52 T.C. 358 (1969).
cited Cited as authority (rule) O'Brien v. Commissioner
Tax Ct. · 1974 · confidence medium
Heaberlin, 34 T.C. 58, 59 (1960); Nathan Lerer, 52 T.C. 358 (1969).
discussed Cited as authority (rule) McCormick v. Commissioner
Wash. Ct. App. · 1970 · confidence medium
Heaberlin , 34 T.C. 58 *47 (16), acq. 1960- 2 C.B. 5 . *139 Analysis of the legal issue presented requires a careful segregation of the facts relating to two of petitioner's tax years on which officials of the Internal Revenue Service were working simultaneously -- 1966, the subject of the notice of deficiency, and 1967, a year for which petitioner owed delinquent taxes.
cited Cited "see, e.g." Burke v. Commissioner
Tax Ct. · 1981 · signal: see also · confidence low
See also Heaberlin v. Commissioner , 34 T.C. 58 (1960) ; and Walsh v. Commissioner , T.C.
Retrieving the full opinion text from the archive…
John W. Heaberlin
v.
Commissioner of Internal Revenue
Docket No. 84559.
United States Tax Court.
Apr 13, 1960.
34 T.C. 58
1960 U.S. Tax Ct. LEXIS 175
Andrew S. Coxe, Esq ., for the respondent.
Murdock.
Cited by 50 opinions  |  Published

OPINION.

MuRDOCk, Judge:

The Commissioner mailed a statutory notice of deficiency by registered mail on September 29, 1959, addressed:

Mr. John W. Heaberlin
2803 S. ID. 14th Street
Des Moines, Iowa

An unverified petition in the name of John W. Heaberlin was filed with the Tax Court on December 81, 1959, which was the 93d day after the mailing of the notice of deficiency, the 90th day having been Monday, December 28, which was not a holiday in the District of Columbia. The envelope, sent by certified mail, in which the petition was mailed to the Tax Court bears a cancellation stamp showing the date December 29,1959.

The Commissioner filed a motion on February 24, 1960, to dismiss the proceeding for lack of jurisdiction because it was not filed within the statutory period of 90 days. The motion was set for hearing on April 6, 1960. A document entitled “Amended and Substituted Petition” verified by the petitioner was filed on March 21, 1960. Opposition to the motion of the Commissioner to dismiss was filed on April 4,1960.

John W. Heaberlin. states under oath that be bas never resided or bad any connection with property at 2803 S. E. 14th Street, Des Moines, Iowa, the address to which the notice of deficiency was mailed; his correct address at that time was 2907 S. E. 14th Street, Des Moines, Iowa; he later received notice from the postal authorities that a registered letter was being held for him; and after considerable delay he personally called for and accepted delivery of the notice of deficiency at the main Post Office at Des Moines. The Commissioner does not contend to the contrary.

It thus appears that the notice of deficiency involved herein was not mailed to the petitioner’s last known address. The Court has no jurisdiction unless a proper notice of deficiency has been mailed in accordance with the provisions of law. Henry Wilson, 16 B.T.A. 1280; William M. Greve, 37 B.T.A. 450. The Commissioner cites a number of cases in which it was held that inconsequential errors in the mailing address of a deficiency notice could be and were waived by the taxpayer filing a timely petition with the Tax Court. The filing of the petition was timely in all of those cases and obviously the taxpayer had suffered no damage and had lost no right as a result of the error in the address. However, those cases do not justify a holding here that Heaberlin had waived anything by filing a petition after the expiration of the 90 days, followed by a dismissal, as would be necessary, since the petition was not filed within the time allowed by law. Gennaro A. Carbone, 8 T.C. 207. The Tax Court may not consider extenuating circumstances for the late filing of a petition but must dismiss in every case where the filing was not within the period allowed by law. Oscar Block, 2 T.C. 761. See also Drouin v. Commissioner, 203 F. 2d 953; Worthington v. Commissioner, 211 F. 2d 131; Underwriters, Inc. v. Commissioner, 215 F. 2d 953; Galvin v. Commissioner, 239 F. 2d 166; Lingham v. Commissioner, 242 F. 2d 750, certiorari denied 355 U.S. 846, and Jorgensen v. Commissioner, 246 F. 2d 536—all affirming Tax Court orders.

This proceeding must be dismissed for lack of jurisdiction because no proper statutory notice was ever sent to the taxpayer. W. S. Trefry, 10 B.T.A. 134; Henry Wilson, supra; William M. Greve, supra; Gennaro A. Carbone, supra. Cf. Clement Brzezinski, 23 T.C. 192.