87 F.3d 273, 78 A.F.T.R.2d 96-5026, 96-2 USTC P 50,331, 96 Cal. Daily Op. Serv. 4446, 96 Daily Journal D.A.R. 7183
United States Court of Appeals, Ninth Circuit. Ellen V. ERHARD, Petitioner-Appellant, v. COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 94-70749. Argued and Submitted March 14, 1996. Decided June 20, 1996.
Michael I. Saltzman, Baker & McKenzie, New York City, and Lawrence B. Silver, San Francisco, California, for petitioner-appellant. Gary R. Allen and Jonathan S. Cohen, Tax Division, United States Department of Justice, Washington, DC, for respondent-appellee. Appeal from the United States Tax Court, Howard A. Dawson, Tax Judge, Presiding. T.C. No. 0971-3: 25656-93.
Before: CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges, and WEINER, District Judge. [FN*]
FN* The Honorable Charles R. Weiner, Senior United States District Court Judge for the Eastern District of Pennsylvania, sitting by designation.
CYNTHIA HOLCOMB HALL, Circuit Judge: Ellen Erhard appeals the Tax Court's dismissal of her petition as untimely filed.
We affirm.
I. Ellen and Werner Erhard filed joint tax returns for the 1984, 1985, 1986, 1987, and 1988 tax years. When they divorced, Ellen executed a power of attorney appointing Werner as her attorney-in-fact and authorizing him to act on her behalf regarding the 1984, 1985, and 1986 tax years. Werner, in turn, executed a second power of attorney authorizing New York attorney Michael Saltzman to act on behalf of him and Ellen for the 1984, 1985, 1986, and 1987 tax years (hereinafter "Saltzman power"). [FN1]
FN1. Because it is not at issue in this case, we need not address whether Saltzman could validly act for Ellen for the 1987 tax year, given that her grant of authority to Werner did not include that year.
During this period, Ellen moved to and established residence in Novato, California. On her 1990 tax return, which she filed in June 1991, she listed her Novato address. Werner mailed the Saltzman power to the IRS four months later, on October 24, 1991; that power listed Ellen's address as New York, New York (the same as the firm where Saltzman worked). On October 28, 1991, the IRS mailed examination reports for the 1987 and 1988 tax years to the New York address. On February 3, 1992 and February 27, 1992, it mailed to the New York address a 30-day letter proposing deficiencies for the 1984, 1985, 1986, 1987 and 1988 tax years. On April 10, 1992, it mailed a request for an extension of the limitations time for the 1985, 1986, 1987, and 1988 tax years to New York. Saltzman responded to this request in April 1992. While the IRS accepted the extensions for the 1984, 1985, 1986, and 1987 tax years, it did not for the 1988 tax year; instead, it mailed two notices of deficiency for that year--one to Werner's post-divorce Massachusetts address and another to Ellen's post-divorce Novato, California address. The notices were mailed on October 15, 1992. Sometime before October 28, 1992, Ellen received the letter, consulted her attorney, and refused delivery of the letter; she never opened it. On December 3, 1993, Ellen filed a petition in the Tax Court contesting the assessment of a deficiency for the 1988 tax year. The IRS moved to dismiss on the ground that her petition was filed more than 90 days after the October 15, 1992 notice of deficiency. Ellen moved to dismiss on the ground that the notice was defective, arguing that the IRS should have mailed the notice to the New York address. The Tax Court found that Ellen had received actual notice of the IRS' notice of deficiency at the time she refused delivery of the notice; her December 1993 petition, filed over a year after the IRS mailed the notice of deficiency, was thus untimely. This appeal followed.