13‐2231‐ag Grillo v. Comm’r

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 16th day of May, two thousand fourteen. 4 5 PRESENT: AMALYA L. KEARSE, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 11 ORTELLIO GRILLO, AWILDA GRILLO, 12 13 Petitioners‐Appellants, 14 15 v. No. 13‐2231‐ag 16 17 COMMISSIONER OF INTERNAL REVENUE, 18 19 Respondent‐Appellee. 20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 21 22 FOR APPELLANTS: ARTHUR LAWRENCE ALEXANDER, ESQ., New York, 23 NY. 24 1 FOR APPELLEE: JOHN A. NOLET (Teresa E. McLaughlin, on the 2 brief), for Kathryn Keneally, Assistant Attorney 3 General, Tax Division, Department of Justice, 4 Washington, DC. 5 6 Appeal from an order of the United States Tax Court (John O. Colvin, Chief 7 Judge). 8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9 AND DECREED that the order of the Tax Court is AFFIRMED. 10 Ortellio Grillo and Awilda Grillo appeal from an order of the United States 11 Tax Court dismissing for lack of jurisdiction their untimely petition for a 12 redetermination of an income tax deficiency. On appeal, the Grillos argue that 13 (1) the Tax Court erred in concluding that the Commissioner of Internal Revenue 14 provided proper notice of the deficiency, and (2) the Commissioner’s failure to 15 provide proper notice deprived them of due process. We assume the parties’ 16 familiarity with the facts and record of the prior proceedings, to which we refer 17 only as necessary to explain our decision to affirm. 18 “We review the legal rulings of the Tax Court de novo and its factual 19 determinations for clear error.” Scheidelman v. Comm’r,

(2d 20 Cir. 2012). In order to challenge the Commissioner’s deficiency determination in 21 Tax Court, the Grillos were required to file a petition in that court within ninety 22 days after the Commissioner’s “proper mailing” of the notice of deficiency. 23 Follum v. Comm’r,

(2d Cir. 1997); see

(a). The 24 notice is properly mailed if the Commissioner sends it by certified or registered 25 mail to the taxpayer’s “last known address.”

, 6213; Follum, 128 26 F.3d at 119‐20. “A late petition will be dismissed for lack of jurisdiction . . . .” 27 Hoffenberg v. Comm’r,

(2d Cir. 1990).

2 1 The Grillos contend that the Tax Court erred in concluding that the 2 Commissioner provided proper notice of the deficiency, arguing that the 3 Commissioner failed to establish that a copy of the notice had been mailed to 4 Awilda, not just Ortellio. We are not persuaded. The record evidence includes 5 copies of (1) the notices mailed to each of the Grillos, (2) the corresponding 6 postmarked envelopes bearing article numbers and other markings documenting 7 the delivery attempts and eventual return of the notices, and (3) the address 8 pages—one directed to Ortellio, and one to Awilda—for each envelope. The 9 Commissioner presented enough evidence for the Tax Court to conclude that a 10 copy of the deficiency notice had been mailed to each petitioner. 11 The Grillos also claim that the Commissioner failed to mail the deficiency 12 notices to the Grillos’ last known address in accordance with Section 6212 of the 13 Internal Revenue Code. Our review of the record compels us to reject this claim 14 as well. “The address shown on the taxpayer’s most recently filed return is his 15 last known address unless the taxpayer has sent a notice of change of address.” 16 Follum,

. The Commissioner properly sent the deficiency notices 17 to the address on the return most recently filed prior to the mailing of the notices. 18 The Grillos notified the Commissioner of their change of address only after the 19 notices of deficiency had been mailed. Although the Grillos suggest otherwise, 20 the ninety‐day period for seeking a redetermination in tax court starts the day 21 the deficiency notice is properly mailed to the last known address and is not 22 tolled or extended by a taxpayer’s subsequent notification of a change of address. 23 See

. Nor did the Grillos’ execution of a Form 2848 Power of Attorney 24 designating their accountant, Moses Morgenstern, as their representative, alter 25 the taxpayer address to which the original notices of deficiency were to be 26 mailed. See McDonald v. Comm’r,

(1981) (“[C]opies of 3 1 correspondence sent pursuant to a request in a power of attorney are a matter of 2 courtesy and in no way affect the mailing requirements of section 6212.”). 3 Lastly, the Grillos argue that the Commissioner’s allegedly improper 4 mailing of the notices deprived them of due process because it prevented them 5 from challenging the deficiency. This argument, too, lacks merit. We have 6 already concluded that the Commissioner’s mailing satisfied the notice 7 requirements for collecting a deficiency. And the Grillos may still object by 8 paying the deficiency, filing an administrative refund claim, and, if that claim is 9 denied, bringing an action in the district court for a refund. See Tadros v. 10 Comm’r,

(2d Cir. 1985). 11 We have considered the Grillos’ remaining arguments and conclude that 12 they are without merit. For the foregoing reasons, the order of the Tax Court is 13 AFFIRMED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16

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