Wright v. Commissioner

DANIEL THEW WRIGHT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Wright v. Commissioner Docket Nos. 76104, 76105. United States Board of Tax Appeals 34 B.T.A. 84; 1936 BTA LEXIS 754; March 10, 1936, Promulgated *754 The respondent addressed a deficiency notice to the petitioner at 915 15th Street, N.W., Washington, D.C., instead of to 917 15th Street, N.W., Washington, D.C., the address shown in his return. The notice was received by the petitioner without delay at the address shown in his return and a petition was filed within the time allowed by the statute. Held, that the deficiency notice is valid. Meredith M. Daubin, Esq., for the petitioner. Nathan Gammon, Esq., and F. S. Gettle, Esq., for the respondent. SEAWELL *84 These proceedings, consolidated for hearing and report, relate to a deficiency in income tax for 1931 in the amount of $14,271.24. We are asked to dismiss the proceedings for lack of jurisdiction on the ground that "no deficiency notice was mailed to the Petitioner as required by Statute within the period of the Statute of Limitations." FINDINGS OF FACT. In his income tax return for 1931, filed on March 12, 1932, the petitioner stated that his address was 917 15th Street, N.W., Washington, D.C. For the past 15 years he has had his law office in a building fronting on the 900 block of Fifteenth Street, Northwest, Washington, *755 D.C. The number "917" appears over the Fifteenth Street entrance to the part of the building in which the petitioner has his office. The number "915" appears on the door of a business operated by an optician on the ground floor of the same building. *85 The building is known both as 917 15th Street and the Edmonds Building. On Saturday, March 10, 1934, the respondent mailed a deficiency notice to the petitioner under registration No. 320845, notifying him of a deficiency in his income tax for 1931. The notice was addressed to him at 915 15th Street, N.W., Washington, D.C. The postman delivered the registered letter to petitioner's stenographer, E. R. Potterton, in petitioner's office in the Edmonds Building, on March 12, 1934, and she gave the postman a receipt therefor at that time, signed "Daniel Thew Wright by E. R. Potterton." Authority had previously been given by petitioner to E. R. Potterton to accept delivery of registered mail addressed to him and to open such mail if she did not regard it to be of a private nature. On the same day E. R. Potterton returned the deficiency notice to the respondent by a letter reading as follows: LAW OFFICES, EDMONDS BUILDING, *756 917 Fifteenth St., Telephone National 0131. PHILIP ERSHLER. DANIEL THEW WRIGHT WASHINGTON, D.C., March 12, 1934. COMMISSIONER OF INTERNAL REVENUE, Washington, D.C. SIR: There was left at this office this morning by the Postman a registered letter No. 320845 containing a communication from your office directed to Mr. Daniel Thew Wright, 915 15th Street, N.W., Washington, D.C. and which was opened by error before noticing that it was directed to 915 15th Street, N.W., Washington, D.C. I am returning it for such disposition as you may see fit to make of it. Very truly yours, (Signed) E. R. POTTERTON. p/ Registered Return Receipt Requested The respondent returned the deficiency notice to the petitioner by an unregistered letter dated April 6, 1934, reading in part as follows: The letter is accordingly returned in order that you may file a petition with the United States Board of Tax Appeals prior to the expiration of the period mentioned therein if you are not in agreement with the deficiency as determined. In the event a petition is not filed with the United States Board of Tax Appeals within the sixty-day period granted in Bureau letter*757 of March 10, 1934, assessment of the deficiency shown will be made in accordance with the provisions of Section 272(c) of the Revenue Act of 1928. The deficiency notice was in the usual form and was prepared by an auditor in the special adjustment section of the income tax unit as a result of a review of the rough draft of the revenue agent's report, which showed the petitioner's address to be 915 15th Street, *86 N.W., Washington, D.C. The auditor did not have the petitioner's income tax return before him at the time he prepared the deficiency notice. The petitions were filed on May 5, 1934. The basis for the petition filed under Docket No. 76104 is the letter of April 6, 1934, and the basis for the petition filed under Docket No. 76105 is the deficiency notice mailed on March 10, 1934. The petitioner received a letter dated June 28, 1934, from the collector of internal revenue, Baltimore, Maryland, concerning payments of his income tax for 1931. It was addressed to him at the Edmonds Building, Washington, D.C. OPINION. SEAWELL: The question is whether the deficiency notice mailed by the respondent on March 10, 1934, meets the requirements of section 272(a) *758 of the Revenue Act of 1928, which provides that when the Commissioner determines a deficiency in income tax he "is authorized to send notice of such deficiency to the taxpayer by registered mail." The petitioner says that such notice was sent to "Daniel Thew Wright, 915 15th Street, N.W., Washington, D.C." and can not be treated as a deficiency notice to him, in view of the fact that the address given by him in his income tax return was 917 15th Street, N.W., Washington, D.C. The contention made is devoid of any merit. Numerous cases decided by this Board and the courts are cited by the petitioner to show that deficiency notices mailed to an incorrect address of taxpayer do not meet the requirements of the statute. All of them involved facts clearly distinguished from those here. None of them go so far as to hold that an incorrectly addressed notice actually received by the addressee is invalid. In , the notice was held to have been properly mailed even though it was improperly addressed to New York City instead of the taxpayer's correct address in Chicago, Ill. *759 Similar facts prevailed in . There the taxpayer's correct address was 200-202 South State Street, Chicago, Ill. The deficiency notice was mailed to 206 South State Street, Chicago, Ill., and was delivered by the mail carrier to the office of the National Life Insurance Co. at 200-202 South State Street, Chicago, Ill., at which address the taxpayer maintained an office. The registered letter was receipted for by an employee who for many years had received mail for the taxpayer addressed to him at the same address. In holding that the notice was valid the court said: *87 The statute provides only that notice shall be sent "by registered mail." It is reasonable to conclude that, even though a slight error may be made in the street address, the taxpayer is not harmed if the letter is actually and promptly delivered to his proper address. The purpose of the statute has been full accomplished when the taxpayer is notified of the deficiency or additional assessment proposed to be made by the Commissioner. While, under the statute, it is not necessary to prove the delivery of such notice, yet in the instant case the evidence*760 is uncontradicted that the appellant was not only "notified of such deficiency by registered mail," but that such notice was actually delivered to his proper address. * * * To the same effect is ; affd., . While the respondent did not direct the deficiency notice to the address shown in the petitioner's return, it fully satisfied the requirements of the statute. It bore another address of the same building, which office building the petitioner recognizes on his letterheads as being his address. The petitioner is in no position to deny the receipt of the deficiency notice. It was actually received in his office by an employee duly authorized to take delivery of his mail. Receipt by the servant was, under the circumstances, receipt by the master. United Statesv. Sander, 27 Fed. Cases 949; United Statesv. Driscoll, 25 Fed. Cases 914. Thus the petitioner was duly notified of the deficiency even though his employee did return the letter to the sender because of the slight but immaterial discrepancy in the address. The letter mailed by the respondent*761 to Daniel Thew Wright, 915 15th Street, N.W., Washington, D.C., on March 10, 1934, is held to be a deficiency notice mailed to the petitioner pursuant to the provisions of section 272(a) of the Revenue Act of 1928. Accordingly, the motion to dismiss for lack of jurisdiction is denied, and the cases will be placed upon the general calendar for hearing on the merits as one proceeding.