                                              DEBORAH L. SMITH, PETITIONER v. COMMISSIONER                                    OF
                                                     INTERNAL REVENUE, RESPONDENT
                                                        Docket No. 12605–08.                 Filed February 28, 2013.

                                                 In 2007 P and her daughters moved from San Francisco to
                                               Canada and became permanent residents of Canada. P contin-
                                               ued to own a home and maintained a post office box in San
                                               Francisco. In December 2007 P returned to San Francisco to

                                      48




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                                               move her remaining furniture to Canada. On Dec. 27, 2007,
                                               while P was in San Francisco, R mailed a deficiency notice to
                                               P’s San Francisco post office box. P did not pick up the notice
                                               and on Jan. 8, 2008, returned to Canada. On May 2, 2008, P
                                               received a copy of the notice, and on May 23, 2008, she filed
                                               a petition with the Court. R filed a motion to dismiss for lack
                                               of jurisdiction and contends that P’s petition was not timely
                                               filed. P objects and contends that, pursuant to I.R.C. sec.
                                               6213(a), she is entitled to 150, rather than 90, days to file a
                                               petition. Held: Pursuant to I.R.C. sec. 6213(a), P’s petition
                                               was timely filed within the 150-day period.

                                        William Edward Taggart, Jr., for petitioner.
                                        Randall E. Heath and Thomas R. Mackinson,                                                  for
                                      respondent.
                                        FOLEY, Judge: The issue for decision is whether petitioner,
                                      pursuant to section 6213(a), had 90 or 150 days to file her
                                      petition with this Court. 1
                                                                          FINDINGS OF FACT

                                        Petitioner and her husband untimely filed a joint Federal
                                      income tax return relating to 2000. Subsequently, the
                                      Internal Revenue Service selected petitioner and her hus-
                                      band’s 2000 return for examination. On November 4, 2004,
                                      petitioner and her husband signed a Form 872–I, Consent to
                                      Extend the Time to Assess Tax As Well As Tax Attributable
                                      to Items of a Partnership, relating to 2000. On October 31,
                                      2006, petitioner and her husband signed Forms 872–I
                                      relating to 1997 and 2000. On each form they listed an
                                      address in Tiburon, California.
                                        Prior to August 2007 petitioner resided in San Francisco,
                                      California. In August 2007 petitioner and her two daughters
                                      moved to Vancouver, British Columbia, Canada. In Sep-
                                      tember 2007 petitioner rented a furnished apartment in Van-
                                      couver and her daughters enrolled in, and began attending,
                                      a school in Vancouver (Vancouver school). Soon thereafter
                                      petitioner and her daughters applied for, and were granted,
                                      permanent residency in Canada. Petitioner also applied for,
                                      and received, a Canadian driver’s license. Petitioner contin-
                                      ued to own her San Francisco home; maintained a post office
                                        1 Unless otherwise indicated, all section references are to the Internal

                                      Revenue Code as amended and in effect for the year in issue, and all Rule
                                      references are to the Tax Court Rules of Practice and Procedure.




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                                      50                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      box in San Francisco (P.O. box); and occasionally returned to
                                      the United States to visit family.
                                         In December 2007 petitioner leased an unfurnished single-
                                      family residence in Vancouver for herself and her daughters.
                                      On or about December 24, 2007, she returned to San Fran-
                                      cisco to supervise the transportation of her furniture to Van-
                                      couver and to arrange for the rental of her San Francisco
                                      home. On December 27, 2007, respondent issued petitioner
                                      and her husband, and mailed to their P.O. box, a deficiency
                                      notice relating to 2000 (notice). 2 In the notice respondent
                                      stated that petitioner and her husband had until March 26,
                                      2008 (i.e., 90 days), to file a Tax Court petition. In addition,
                                      respondent determined that petitioner and her husband were
                                      liable for an $8,911,858 deficiency, a $2,044,590 section
                                      6651(a)(1) addition to tax, and a $1,782,372 section 6662(a)
                                      accuracy-related penalty.
                                         On December 28, 2007, petitioner’s moving company began
                                      transporting her furniture to Vancouver. The notice was
                                      delivered to petitioner’s P.O. box on December 31, 2007, but
                                      she did not pick it up. She returned to Vancouver on January
                                      8, 2008; received a copy of the notice on May 2, 2008; and
                                      on May 23, 2008 (i.e., 148 days after the notice’s mailing
                                      date), while residing in Vancouver, filed a petition with the
                                      Court.
                                         On March 3, 2009, respondent sent petitioner’s counsel a
                                      letter requesting additional documentation relating to peti-
                                      tioner’s whereabouts on the notice’s mailing date. On April
                                      8, 2009, petitioner’s counsel faxed respondent photocopies of
                                      petitioner’s and her daughters’ Canadian permanent resident
                                      cards, petitioner’s Canadian driver’s license, a canceled
                                      October 2007 rent check, and a letter from the Vancouver
                                      school verifying that petitioner’s daughters began attending
                                      the school in September 2007. In a letter sent to petitioner
                                      on April 10, 2009, respondent emphasized the importance of
                                      petitioner’s physical location during December 2007 and
                                      stated that the documentation petitioner provided was not
                                      conclusive.
                                         On July 24, 2009, the Court filed respondent’s motion to
                                      dismiss for lack of jurisdiction, in which respondent contends
                                        2 The P.O. box was petitioner’s mailing address as reflected on her 2006

                                      Federal income tax return.




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                                      (48)                            SMITH v. COMMISSIONER                                         51


                                      that the petition was not filed within the time prescribed by
                                      section 6213(a). The Court, on August 20, 2009, filed peti-
                                      tioner’s objection to respondent’s motion. On September 1,
                                      2009, the Court filed petitioner’s supplemental opposition to
                                      respondent’s motion.

                                                                                  OPINION

                                         This Court’s jurisdiction to redetermine a deficiency
                                      depends on the issuance of a valid notice of deficiency and a
                                      timely filed petition. 3 See secs. 6212(a), 6213(a), 6214(a);
                                      Rule 13(a), (c); Levitt v. Commissioner, 97 T.C. 437, 441
                                      (1991); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Section
                                      6213(a) provides that a petition for redetermination of a defi-
                                      ciency is timely if it is filed within 90 days (90-day rule) or,
                                      if the notice is ‘‘addressed to a person outside the United
                                      States’’, 150 days (150-day rule) after the notice’s mailing
                                      date. Petitioner filed her petition 148 days after the notice’s
                                      mailing date. Respondent contends that the petition is
                                      untimely and the 90-day rule is applicable because petitioner
                                      was in the United States when the notice was mailed and
                                      delivered. Petitioner contends that the notice was ‘‘addressed
                                      to a person outside the United States’’ and the 150-day rule
                                      is applicable because she was a resident of Canada (i.e.,
                                      when the notice was mailed and delivered), received the
                                      notice in Canada, and experienced delay. We agree and hold
                                      that petitioner is entitled to the 150-day period.
                                         The phrase ‘‘addressed to a person outside the United
                                      States’’ is ambiguous, and the Court has consistently con-
                                      strued it broadly. See Looper v. Commissioner, 73 T.C. 690,
                                      694 (1980); Lewy v. Commissioner, 68 T.C. 779, 781–782
                                      (1977). Where a statute is capable of various interpretations,
                                      we are inclined to adopt a construction which will permit the
                                      Court to retain jurisdiction without doing violence to the
                                      statutory language. See Lewy v. Commissioner, 68 T.C. at
                                      781, 783–786 (holding that the 150-day rule is applicable to
                                      a foreign resident who is in the United States when the
                                      notice is mailed, but outside the United States when the
                                      notice is delivered); see also Levy v. Commissioner, 76 T.C.
                                        3 Petitioner bears the burden of proving that this Court has jurisdiction.

                                      See Patz Trust v. Commissioner, 69 T.C. 497, 503 (1977); see also Rule
                                      142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).




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                                      52                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      228, 231–232 (1981) (holding that the 150-day rule is
                                      applicable to a U.S. resident who is temporarily outside of
                                      the country when the notice is mailed and delivered); Looper
                                      v. Commissioner, 73 T.C. at 694–695 (holding that the 150-
                                      day rule is applicable where a notice is mailed to an address
                                      outside the United States); Hamilton v. Commissioner, 13
                                      T.C. 747, 754 (1949) (holding that the 150-day rule is
                                      applicable to a foreign resident who is outside the United
                                      States when the notice is mailed and delivered). Our holding
                                      is consistent with our jurisprudence, is a practical construc-
                                      tion of section 6213(a), and leaves the statutory language
                                      unscathed.
                                      I. Foreign Residents
                                        The 150-day rule applies when the notice is ‘‘addressed to
                                      a person outside of the United States.’’ See sec. 6213(a).
                                      Where the Court has determined the applicability of the 150-
                                      day rule, the critical inquiry has generally been whether the
                                      taxpayer fell within the categories of taxpayers Congress
                                      intended to benefit: foreign residents or U.S. residents
                                      temporarily absent from the country. See Malekzad v.
                                      Commissioner, 76 T.C. 963, 970 (1981); Levy v. Commis-
                                      sioner, 76 T.C. at 231; Lewy v. Commissioner, 68 T.C. at 782.
                                        In Hamilton, the Court held that a U.S. citizen who
                                      resided in a foreign country was a person ‘‘outside’’ of the
                                      United States. Hamilton v. Commissioner, 13 T.C. at 748,
                                      754 (construing the predecessor to the current section 6213).
                                      The Court in Hamilton also held that the 150-day rule was
                                      not applicable to a U.S. resident who was temporarily absent
                                      from the country. 4 Id. The Court concluded that Congress, in
                                      enacting the 150-day rule, ‘‘was legislating with respect to
                                      taxpayers regularly residing and carrying on their business
                                      and professional activities in places outside the States of the
                                      Union’’. Id. at 752. In subsequent cases the Court recognized
                                      that ‘‘[i]t is more likely that delay will occur in these tax-
                                      payers’ receiving the notice of deficiency, and certainly more
                                        4 In Mindell v. Commissioner, 200 F.2d 38, 39 (2d Cir. 1952), the Court

                                      of Appeals for the Second Circuit rejected this holding and concluded that
                                      the 150-day rule was applicable to U.S. residents temporarily absent from
                                      the country. See also Estate of Krueger v. Commissioner, 33 T.C. 667, 668
                                      (1960) (adopting the reasoning of the Court of Appeals for the Second Cir-
                                      cuit in Mindell); see infra pt. II.




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                                      (48)                            SMITH v. COMMISSIONER                                         53


                                      time is needed to file a petition because of the physical pres-
                                      ence of these taxpayers outside the United States.’’ See
                                      Camous v. Commissioner, 67 T.C. 721, 735 (1977); see also
                                      Degill Corp. v. Commissioner, 62 T.C. 292, 297 (1974).
                                         In Hamilton, the Court mused that a foreign resident
                                      ‘‘who, through fortuitous circumstance, physically happened
                                      to be in one of the States of the Union on the particular day
                                      the deficiency notice was mailed’’ would be entitled to the
                                      150-day period and that any other interpretation of the 150-
                                      day rule would not be reasonable. See Hamilton v. Commis-
                                      sioner, 13 T.C. at 753–754. The Court in Lewy v. Commis-
                                      sioner, 68 T.C. at 784–786, confronted this situation. In
                                      Lewy, a foreign resident, in the United States on the notice’s
                                      mailing date, left the country the following day and experi-
                                      enced delay in receiving the notice. Id. at 779–780. The
                                      Commissioner contended that the taxpayer’s physical pres-
                                      ence in the United States precluded the applicability of the
                                      150-day rule. Id. at 782. The Court rejected this contention
                                      as ‘‘excessively mechanical, unrelated to the section’s basic
                                      purpose, and unsupported by case law.’’ Id. at 782, 784
                                      (stating that the Court has ‘‘firmly and unequivocally
                                      rejected barren haggling over dialectical distinctions in the
                                      jurisdictional area’’). The Court held that the taxpayer, a for-
                                      eign resident, was ‘‘precisely the type of taxpayer the 150-day
                                      rule * * * [was] designed to assist’’. 5 See id. at 782–784.
                                         In sum, a foreign resident’s status as a person ‘‘outside of
                                      the United States’’ is not vitiated by the resident’s brief pres-
                                      ence in the United States on the notice’s mailing date. See
                                      id. at 782–783 (stating that ‘‘ephemeral presence at the
                                      moment the deficiency notice is mailed is not controlling’’).
                                      Similarly, a foreign resident may be ‘‘a person outside the
                                         5 The Court reviewed Mindell v. Commissioner, 200 F.2d 38, Estate of

                                      Krueger v. Commissioner, 33 T.C. 667, Cowan v. Commissioner, 54 T.C.
                                      647 (1970), Degill Corp. v. Commissioner, 62 T.C. 292 (1974), and Camous
                                      v. Commissioner, 67 T.C. 721 (1977), and observed:
                                           ‘‘the crucial criterion to be gleaned from the decided cases is whether the
                                           ‘person’ is physically located outside the United States so that the notice
                                           of deficiency mailed to its United States address will be delayed in
                                           reaching it in a foreign country * * * and thereby hamper its ability to
                                           adequately respond by filing a petition to litigate its case in this Court.
                                           * * *’’ [Lewy v. Commissioner, 68 T.C. 779, 783 (1977) (quoting Degill
                                           Corp. v. Commissioner, 62 T.C. at 299).]




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                                      54                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      United States’’ even if the foreign resident is in the United
                                      States on the notice’s delivery date (i.e., if the taxpayer ulti-
                                      mately receives notice several months later while in the for-
                                      eign country).
                                      II. U.S. Residents Temporarily Absent From the Country
                                         The 150-day rule is also intended to provide relief to U.S.
                                      residents temporarily absent from the country. See Levy v.
                                      Commissioner, 76 T.C. at 231; Lewy v. Commissioner, 68 T.C.
                                      at 783–784; Estate of Krueger v. Commissioner, 33 T.C. 667,
                                      668 (1960). In Mindell v. Commissioner, 200 F.2d 38, 39 (2d
                                      Cir. 1952), a U.S. resident was temporarily absent from the
                                      country when the notice was mailed and delivered. The
                                      Court of Appeals for the Second Circuit rejected the Tax
                                      Court’s holding in Hamilton that the 150-day rule was not
                                      applicable to U.S. residents who were temporarily absent
                                      from the country. See Mindell v. Commissioner, 200 F.2d at
                                      39. In holding that the 150-day rule was applicable to such
                                      individuals, the Court of Appeals held that the critical
                                      inquiry was whether the taxpayer experienced delay in the
                                      receipt of the notice. See id. In Estate of Krueger v. Commis-
                                      sioner, 33 T.C. at 667–668, a U.S. resident was in Japan on
                                      the notice’s mailing date. We adopted the broader application
                                      of the 150-day rule as set forth in Mindell but did not reject
                                      the holding or reasoning in Hamilton relating to the applica-
                                      tion of the 150-day rule to foreign residents. Estate of
                                      Krueger v. Commissioner, 33 T.C. at 668; see also Lewy v.
                                      Commissioner, 68 T.C. at 786 (stating that Estate of Krueger
                                      broadened the Court’s holding in Hamilton and ‘‘expanded
                                      the class of persons entitled to file within 150 days’’).
                                         In Levy v. Commissioner, 76 T.C. at 229–230, U.S. resi-
                                      dents departed on the notice’s mailing date for a five-day trip
                                      to Jamaica, the notice was delivered to their residence while
                                      they were in Jamaica, and their absence resulted in delayed
                                      receipt of the notice. The Court held that the 150-day rule
                                      was applicable. Id. at 231–232; cf. Malekzad v. Commis-
                                      sioner, 76 T.C. at 971–972 (holding that the 150-day rule was
                                      not applicable to U.S. residents who were in the country on
                                      the notice’s mailing date, were outside the country for less
                                      than 48 hours, and did not experience delay in receiving the
                                      notice).




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                                      (48)                            SMITH v. COMMISSIONER                                         55


                                      III. Petitioner Is Entitled to the 150-Day Period.
                                         Petitioner is within the category of taxpayers that Con-
                                      gress intended to benefit. See Lewy v. Commissioner, 68 T.C.
                                      at 782; Camous v. Commissioner, 67 T.C. at 735; Hamilton
                                      v. Commissioner, 13 T.C. at 753–754. She was a Canadian
                                      resident (i.e., when the notice was mailed and delivered); was
                                      not at the address to which the notice was delivered; and
                                      received the notice, in Canada, 127 days after the notice’s
                                      mailing date. Although petitioner was in San Francisco when
                                      the notice was mailed and delivered, her status as a person
                                      ‘‘outside of the United States’’ is largely a function of her
                                      residency and is not vitiated by her brief presence in the
                                      United States. In short, the 150-day rule is applicable.
                                         Contentions we have not addressed are irrelevant, moot, or
                                      meritless.
                                         To reflect the foregoing,
                                                                                 An appropriate order will be issued.
                                        Reviewed by the Court.
                                        THORNTON, COLVIN, VASQUEZ, GALE, WHERRY, PARIS, and
                                      KERRIGAN, JJ., agree with this opinion of the Court.
                                        GOEKE, J., concurs in the result only.
                                        MARVEL, J., did not participate in the consideration of this
                                      opinion.



                                        COLVIN, J., concurring: I agree with the opinion of the
                                      Court and write in response to some of the points made in
                                      the dissenting opinions of Judge Halpern and Judge Gustaf-
                                      son.
                                      I. Introduction
                                        In pertinent part, section 6213(a) provides: ‘‘Within 90
                                      days, or 150 days if the notice is addressed to a person out-
                                      side the United States, after the notice of deficiency author-
                                      ized in section 6212 is mailed * * *, the taxpayer may file
                                      a petition with the Tax Court for a redetermination of the
                                      deficiency.’’ The conclusion of the first dissenting opinion, see
                                      Halpern op. p. 71, that this language ‘‘has during the last 60
                                      years taken on a fixed meaning, dependent on the taxpayer’s




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                                      56                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      physical location’’, is at odds with our holdings in numerous
                                      cases applying the 150-day period to foreign residents who
                                      were briefly in the United States when the notice of defi-
                                      ciency was sent.
                                         Contrary to the interpretation of section 6213(a) in the dis-
                                      senting opinions, we have consistently given the statute a
                                      ‘‘broad, practical construction’’ and said we ‘‘ ‘should not
                                      adopt an interpretation which curtails * * * the right to a
                                      prepayment hearing * * * in the absence of a clear congres-
                                      sional intent to do so.’ ’’ Lewy v. Commissioner, 68 T.C. 779,
                                      781, 782 (1977) (quoting King v. Commissioner, 51 T.C. 851,
                                      855 (1969)); see also Looper v. Commissioner, 73 T.C. 690,
                                      694 (1980). A construction of the statute that limits a foreign
                                      resident’s ‘‘outside the United States’’ status to the resident’s
                                      location on the notice’s delivery date would be just as ‘‘exces-
                                      sively mechanical, unrelated to the section’s basic purpose,
                                      and unsupported by case law’’ as the construction we rejected
                                      in Lewy v. Commissioner, 68 T.C. at 782.
                                      II. Hamilton v. Commissioner
                                        In Hamilton v. Commissioner, 13 T.C. 747, 748, 753–754
                                      (1949), we said that the 150-day period applies to a taxpayer
                                      who regularly resides outside the United States but who
                                      through fortuitous circumstance happened to be physically in
                                      one of the States of the Union on the particular day the defi-
                                      ciency notice was mailed to him. Contrary to the view
                                      expressed in the first dissenting opinion, our ‘‘reading’’ of
                                      Hamilton relating to consideration of a taxpayer’s foreign
                                      residence has not ‘‘evolved.’’ See Halpern op. p. 64. Hamilton
                                      was cited with approval in Levy v. Commissioner, 76 T.C.
                                      228, 230 (1981), Lewy v. Commissioner, 68 T.C. at 785–786,
                                      and Degill Corp. v. Commissioner, 62 T.C. 292, 297 (1974).
                                      Most of the cases since Hamilton have simply dealt with dif-
                                      ferent factual situations (i.e., where U.S. residents were
                                      temporarily absent from the United States or where a notice
                                      was addressed to a foreign address). See Malekzad v.
                                      Commissioner, 76 T.C. 963 (1981); Levy v. Commissioner, 76
                                      T.C. 228; Looper v. Commissioner, 73 T.C. 690; Camous v.
                                      Commissioner, 67 T.C. 721 (1977); Cowan v. Commissioner,
                                      54 T.C. 647 (1970).




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                                      (48)                            SMITH v. COMMISSIONER                                         57


                                        In Estate of Krueger v. Commissioner, 33 T.C. 667, 668
                                      (1960), we held that the 150-day rule also applies to U.S.
                                      residents temporarily absent from the country. In Estate of
                                      Krueger, we agreed with the opinion of the Court of Appeals
                                      for the Second Circuit in Mindell v. Commissioner, 200 F.2d
                                      38, 39 (2d Cir. 1952). See Estate of Krueger v. Commissioner,
                                      33 T.C. at 668. In Mindell, the taxpayer, a U.S. citizen and
                                      indicted tax evader, moved with his family to Mexico. See
                                      Mindell v. Commissioner, 200 F.2d at 39. We had concluded
                                      in Mindell that the taxpayer was not regularly residing
                                      abroad and therefore was entitled to only 90 days. Id. The
                                      Court of Appeals for the Second Circuit reversed and stated:
                                           [W]e cannot agree * * * that the statute grants the 150 day period only
                                           to persons outside the designated area ‘‘on some settled business and
                                           residential basis, and not on a temporary basis * * *’’. We find nothing
                                           in the language of the statute or in its legislative history to suggest that
                                           Congress intended to differentiate between persons temporarily absent
                                           from the United States and persons ‘‘regularly residing’’ abroad. What-
                                           ever the reason for the taxpayer’s absence from the country receipt of
                                           the deficiency notice was likely to be delayed if he was not physically
                                           present at the address to which the notice was sent; hence he was given
                                           additional time to apply for review of the deficiency. We think the fact
                                           of ‘‘residence’’ abroad irrelevant. [Id.]

                                      The Court of Appeals for the Second Circuit said that resi-
                                      dency was irrelevant because the taxpayer was outside the
                                      country, was not likely to return, and therefore was entitled
                                      to 150 days under section 6213. Residency is, indeed, irrele-
                                      vant where a U.S. resident is temporarily outside the
                                      country. There is nothing in Mindell, which rejected the
                                      notion that the 150-day rule is limited to foreign residents,
                                      or our Opinions, to support the contention in the first dis-
                                      senting opinion that residency does not apply to, or is irrele-
                                      vant with respect to, foreign residents. With respect to this
                                      Court’s position, it also is noteworthy that, in Estate of
                                      Krueger, where we adopted the reasoning of Mindell, we
                                      included all of the above-quoted excerpt except the sentence
                                      deeming residence irrelevant. Estate of Krueger v. Commis-
                                      sioner, 33 T.C. at 668.
                                      III. Lewy v. Commissioner
                                        In Lewy v. Commissioner, 68 T.C. 779, the taxpayer was a
                                      foreign resident temporarily present in the United States.




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                                      58                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      The taxpayer was in the United States when the notice was
                                      mailed; however, we held that he was ‘‘outside the United
                                      States’’ for purposes of section 6213(a) and therefore was
                                      entitled to application of the 150-day rule. Id. at 785–786.
                                      We said that
                                             Our reasoning in Hamilton v. Commissioner, 13 T.C. 747 (1949), pro-
                                           vides further support for our conclusion [that the 150-day rule applied]:
                                           ‘‘An interpretation of the provision as meaning something more substan-
                                           tial than the mere fortuitous circumstance of place where a taxpayer
                                           physically happened to be on a certain date would likewise protect
                                           against hardship a taxpayer regularly residing outside the States of the
                                           Union and the District of Columbia, but who, through fortuitous cir-
                                           cumstance, physically happened to be in one of the States of the Union
                                           on the particular day the deficiency notice was mailed to him, and
                                           would, because of his residence outside the States of the Union and the
                                           District of Columbia, preserve to him the right to the period of 150 days
                                           for the filing of his petition, just as it would for his neighbor who hap-
                                           pened to be at home on the day when the deficiency notice was mailed.
                                           [13 T.C. at 753–754.]’’ [Id. at 785; emphasis added.]

                                      In addition, we held that Mindell and Estate of Krueger did
                                      not ‘‘vitiate the above quoted language’’ but simply
                                      ‘‘expanded the class of persons entitled to file within 150
                                      days.’’ Id. at 786. In short, we affirmed, rather than aban-
                                      doned, our analysis in Hamilton. See id.
                                      IV. Degill Corp. v. Commissioner
                                         A foreign resident’s ‘‘outside the United States’’ status is
                                      appropriately tied to the focal point of the taxpayer’s activi-
                                      ties and property (i.e., residency). Linking a foreign resident’s
                                      ‘‘outside the United States’’ status to residency is a reason-
                                      able and practical construction of the statute. A taxpayer’s
                                      books, records, and residence are typically in the same place.
                                      Such status does not depend solely on the taxpayer’s location
                                      on the notice’s mailing and delivery dates. The analysis in
                                      Degill Corp. v. Commissioner, 62 T.C. 292 is illuminating. In
                                      Degill Corp., we held that the 150-day rule applied to a
                                      domestic corporation which had an office in the United
                                      States, had its home office in the South Pacific, and con-
                                      ducted all of its business outside the United States. Id. at
                                      293–294, 300. We observed that
                                           the crucial criterion to be gleaned from the decided cases is whether the
                                           ‘‘person’’ is physically located outside the United States so that the




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                                      (48)                            SMITH v. COMMISSIONER                                         59


                                           notice of deficiency mailed to its United States address will be delayed
                                           in reaching it in a foreign country * * *, and thereby hamper its ability
                                           to adequately respond by filing a petition to litigate its case in this
                                           Court. * * * [Id. at 299.]

                                      We were ‘‘convinced that the * * * ‘registered office’ alone
                                      should not be considered the physical location of * * * [the
                                      corporation’s] home office when its officers, books, records,
                                      majority stockholders, and entire equipment’’ were located
                                      abroad. Id. We also concluded that the taxpayer required
                                      additional time because its books, records, shareholders, and
                                      equipment were abroad. Id. Despite the fact that the corpora-
                                      tion had a Philadelphia office and the notice was mailed and
                                      delivered in December 1972 to both the Philadelphia and for-
                                      eign addresses, we held that where ‘‘the situs of corporate
                                      activity is entirely outside the United States, congressional
                                      concern for adequate response time for a taxpayer makes the
                                      150-day rule applicable’’. See id. at 295, 299.
                                         In essence, the corporation’s ‘‘residency’’ was a relevant
                                      and determining factor. We analyzed the matter accordingly,
                                      following our holding in Hamilton establishing that foreign
                                      residents were entitled to application of the 150-day rule. See
                                      Degill Corp. v. Commissioner, 62 T.C. at 297–300. Specifi-
                                      cally, we noted that Degill Corp. was not a case of a U.S.
                                      resident’s temporary absence but was ‘‘a permanent absence
                                      from the United States which would have invoked the 150-
                                      day rule even under the former stricter rule of * * * [Ham-
                                      ilton]’’ (i.e., the rule limiting the 150-day rule to foreign resi-
                                      dents). Degill Corp. v. Commissioner, 62 T.C. at 300. In sum,
                                      our analysis in Degill Corp. supports the analysis of the
                                      opinion of the Court.
                                         Malekzad and Levy involved U.S. residents temporarily
                                      abroad, while in Looper the issue was whether ‘‘outside’’
                                      modified ‘‘address’’ or ‘‘person.’’ Contrary to the reliance
                                      placed on them by the first dissenting opinion, these cases do
                                      not involve foreign residents and so do not speak to the case
                                      before the Court. 1
                                           1 Indeed,
                                                 the analysis in Levy v. Commissioner, 76 T.C. 228 (1981), and
                                      Malekzad v. Commissioner, 76 T.C. 963 (1981), contradicts the first dis-
                                      senting opinion’s assertion that physical location is determinative. In Levy
                                      we stated that ‘‘[a]n inquiry into petitioners’ geographic location at the pre-
                                      cise moment the deficiency notice was mailed [is not controlling because
                                                                                                       Continued




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                                      60                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                        For the foregoing reasons I agree with the reasoning and
                                      conclusion of the opinion of the Court.
                                        THORNTON, FOLEY, VASQUEZ, GALE, WHERRY, PARIS, and
                                      KERRIGAN, JJ., agree with this concurring opinion.



                                           HALPERN, J., dissenting:
                                      I. Introduction
                                         I disagree with the majority’s determination that the statu-
                                      tory notice of deficiency (notice or statutory notice) that
                                      respondent addressed to petitioner for her 2000 tax year was
                                      addressed to a person outside the United States so that,
                                      pursuant to section 6213(a), she had 150 (rather than 90)
                                      days to file the petition. The majority reads the words of sec-
                                      tion 6213(a), ‘‘a person outside the United States’’, as if Con-
                                      gress had, in fact, written ‘‘a person residing outside the
                                      United States who is briefly present in the United States and
                                      who, while present, does not receive the notice’’. Petitioner
                                      was present in the United States for a two-week period
                                      bracketing both the mailing and delivery of the notice to her
                                      address (a U.S. address) last known to the Commissioner,
                                      and, in the light of the words actually used by Congress and
                                      the relevant caselaw, that is sufficient for me to conclude
                                      that the notice was not addressed to a person outside the
                                      United States. Therefore, pursuant to section 6213(a), she
                                      had only 90, and not 150, days from the date the notice was
                                      mailed to file her petition with the Tax Court. Her petition,
                                      filed 148 days after the notice was mailed, was not timely,

                                      it] is too narrow of a consideration to effectuate the purposes of the stat-
                                      ute.’’ See Levy v. Commissioner, 76 T.C. at 231 (emphasis added). In
                                      Malekzad, we held that taxpayers who were outside the United States
                                      when the notice was delivered were not ‘‘outside the United States’’ be-
                                      cause other factors (i.e., the lack of delay) made the 150-day rule inappli-
                                      cable. See Malekzad v. Commissioner, 76 T.C. 963. We stated that ‘‘the
                                      statute does not say that the determination of whether the 90-day period
                                      or the 150-day period applies depends upon the geographical location of
                                      the taxpayer at the exact time the statutory notice is mailed. * * * The
                                      statute also does not say that the applicability of the 150-day period de-
                                      pends upon the taxpayer’s geographical location at the exact time the stat-
                                      utory notice is delivered by the Postal Service to the taxpayer’s home.’’ Id.
                                      at 969.




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                                      (48)                            SMITH v. COMMISSIONER                                         61


                                      and we should grant respondent’s motion to dismiss for lack
                                      of jurisdiction.
                                      II. Discussion
                                           A. Section 6213(a)
                                        In pertinent part, section 6213(a) provides: ‘‘Within 90
                                      days, or 150 days if the notice is addressed to a person out-
                                      side the United States, after the notice of deficiency author-
                                      ized in section 6212 is mailed * * *, the taxpayer may file
                                      a petition with the Tax Court for a redetermination of the
                                      deficiency.’’ Filing a timely petition for redetermination of a
                                      deficiency is a jurisdictional requirement. Mindell v. Commis-
                                      sioner, 200 F.2d 38, 39 (2d Cir. 1952); Lewy v. Commissioner,
                                      68 T.C. 779, 781 (1977).
                                           B. Judicial Gloss
                                         The seemingly straightforward language of section 6213(a)
                                      allowing a taxpayer 150 days to file a petition ‘‘if the notice
                                      is addressed to a person outside the United States’’ has been
                                      subject to much judicial gloss since, as a wartime measure in
                                      1942, its predecessor language was added to the Internal
                                      Revenue Code of 1939. In Hamilton v. Commissioner, 13 T.C.
                                      747 (1949), we rejected the Commissioner’s argument that,
                                      because their last known addresses (to which the statutory
                                      notices had been sent) were within the United States, the
                                      two subject taxpayers had no more than 90 days to file peti-
                                      tions. We held that the words ‘‘outside the [United States]’’
                                      in a predecessor provision referred to a ‘‘person’’ rather than
                                      to the word ‘‘addressed’’. 1 We added, however, that the 150-
                                        1 The legislative history of that predecessor provision in the Revenue Act

                                      of 1942, ch. 619, 56 Stat. 798, was described in Hamilton v. Commissioner,
                                      13 T.C. 747, 750–751 (1949), as follows:
                                             The 150-day provision added at the end of section 272(a)(1) [of the In-
                                           ternal Revenue Code of 1939] first appeared when the Revenue Bill of
                                           1942 was reported to the Senate by its Committee on Finance, and was
                                           explained in the committee report as follows:
                                             ‘‘Under existing law if a notice of deficiency in income tax is mailed
                                           to a taxpayer he has 90 days within which to file his petition with the
                                           Board of Tax Appeals. In the case of a taxpayer in remote places, such
                                           as Hawaii or Alaska, this time limit may possibly work a hardship be-
                                                                                                       Continued




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                                      62                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      day period was available only to persons outside the United
                                      States ‘‘on some settled business and residential basis, and
                                      not on a temporary basis’’. Id. at 753. We have since then
                                      rejected that distinction. See Estate of Krueger v. Commis-
                                      sioner, 33 T.C. 667, 668 (1960). In Estate of Krueger, we fol-
                                      lowed the lead of the Court of Appeals for the Second Circuit
                                      in Mindell v. Commissioner, 200 F.2d 38. In Mindell, the
                                      Court of Appeals reversed our unpublished order granting
                                      the Commissioner’s motion to dismiss for lack of jurisdiction
                                      on account of an untimely petition. Apparently, we had found
                                      that the taxpayer, a fugitive from prosecution living with his
                                      family in Mexico, was not regularly residing abroad. We had
                                      therefore concluded, on the authority of Hamilton, that he
                                      was entitled to no more than 90 days to file a petition. While
                                      the Court of Appeals agreed with our interpretation in Ham-
                                      ilton that the availability of the 150-day period turned on the
                                      location of the person and not on a foreign address, it
                                      rejected the distinction we had drawn that the 150-day
                                      period was available only to persons out of the country ‘‘ ‘on
                                      some settled business and residential basis, and not on a
                                      temporary basis’ ’’. Id. at 39. Indeed, it questioned our finding
                                      that Mr. Mindell was not regularly residing abroad. 2 In any
                                      event, it thought the fact of residence abroad to be irrelevant.
                                      Id. It stated:
                                           We find nothing in the language of the statute or in its legislative his-
                                           tory to suggest that Congress intended to differentiate between persons
                                           temporarily absent from the United States and persons ‘‘regularly

                                           cause of delays in transporting mail that may occur during the present
                                           hostilities. To correct this hardship section 272(a)(1) of the Code has
                                           been amended to increase the period to 150 days if the notice is mailed
                                           to a person outside the States of the Union and the District of Columbia.
                                           This extension applies only to deficiency notices mailed after the date of
                                           enactment of the act.’’ [Senate Finance Committee Report No. 1631, Sev-
                                           enty-seventh Congress, second session, p. 154.]
                                        As the result of a conference on the bill, the House receded and accepted
                                        the Senate amendment without explanation other than a statement in
                                        the conference report of the substance of the sentence added.
                                        2 The Court of Appeals stated: ‘‘But even on the Tax Court’s theory that

                                      the taxpayer must show that he was ‘regularly residing’ abroad, we fail to
                                      see why his affidavit was insufficient to establish that fact. Evidence that
                                      he had been indicted and jumped bail, if relevant at all, would seem to
                                      support his claim of residence in Mexico’’. Mindell v. Commissioner, 200
                                      F.2d 38, 39 (2d Cir. 1952).




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                                      (48)                            SMITH v. COMMISSIONER                                         63


                                           residing’’ abroad. Whatever the reason for the taxpayer’s absence from
                                           the country receipt of the deficiency notice was likely to be delayed if he
                                           was not physically present at the address to which the notice was sent;
                                           hence he was given additional time to apply for review of the deficiency.
                                           We think the fact of ‘‘residence’’ abroad irrelevant. [Id.]

                                        Subsequently, in Looper v. Commissioner, 73 T.C. 690, 694
                                      (1980), we reconsidered the inference in Hamilton and other
                                      of our cases that the 150-day rule applies only in cases where
                                      the taxpayer is out of the United States and not in cases
                                      where the address is a foreign address. We stated that the
                                      common element in the decided cases is a recognition that
                                      the receipt of mail is often delayed when it travels abroad.
                                      Id. We quoted the following language from Degill Corp. v.
                                      Commissioner, 62 T.C. 292, 299 (1974), as illustrating our
                                      reasoning in the decided cases.
                                              ‘‘As we see it, the crucial criterion to be gleaned from the decided cases
                                           is whether the ‘person’ is physically located outside the United States so
                                           that the notice of deficiency mailed to its United States address will be
                                           delayed in reaching it in a foreign country, possession, or territory, and
                                           thereby hamper its ability to adequately respond by filing a petition to
                                           litigate its case in this Court. * * * ’’ [Looper v. Commissioner, 73 T.C.
                                           at 694.]

                                      We rejected as ‘‘unduly restrictive’’ a reading of the statute
                                      that the 150-day rule applies only in cases where the tax-
                                      payer is out of the United States and not in cases where the
                                      address is a foreign address. Id. We stated: ‘‘The literal terms
                                      of the statute can support a reading that the 150-day rule
                                      applies either when the taxpayer is out of the country or
                                      when the address on the notice is a foreign address and the
                                      legislative history is such that it does not foreclose either
                                      construction.’’ Id. We held accordingly. Id. at 695–696.
                                           C. Foreign Residence No Longer Decisive
                                         While in Hamilton v. Commissioner, 13 T.C. 747, the tax-
                                      payer’s residence abroad was decisive to our determination
                                      that he was, in the words of the present statute, ‘‘a person
                                      outside the United States’’ (entitled to 150 days to file a peti-
                                      tion), we have, as discussed, since then disregarded the
                                      distinction between expatriates and those sojourning abroad
                                      in determining whether a taxpayer is such a person. Foreign
                                      residence as a decisive factor has given way to physical loca-
                                      tion outside the United States as the ‘‘crucial criterion’’,




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                                      64                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      applicable both to expatriates and those sojourning abroad,
                                      in determining who (despite the notice having been mailed to
                                      their U.S. last known address) is ‘‘a person outside the
                                      United States.’’ See Degill Corp. v. Commissioner, 62 T.C. at
                                      299. Indeed, our reading of Hamilton seems to have evolved
                                      consistent with that distinction. In Levy v. Commissioner, 76
                                      T.C. 228, 230 (1981), we cited Hamilton for the proposition
                                      that the phrase, in section 6213(a), ‘‘addressed to a person
                                      outside the United States’’ means ‘‘the taxpayer to whom the
                                      notice is addressed must have been located abroad.’’
                                      (Emphasis added.) In Looper v. Commissioner, 73 T.C. at
                                      693, we were more explicit, stating that, in Hamilton, we
                                      read section 272(a)(1) of the Internal Revenue Code of 1939
                                      (the predecessor to section 6213(a)) ‘‘to provide the 150-day
                                      period for persons who were physically outside the United
                                      States at the time the statutory notice was mailed’’.
                                      (Emphasis added.) In Degill Corp., we were faced with deter-
                                      mining the physical location of an artificial person, a
                                      domestic corporation, whose entire business operations were
                                      overseas. Because of the exclusiveness of its activities over-
                                      seas, we concluded that ‘‘this domestic corporation was phys-
                                      ically located abroad’’, entitled to 150 days to file a petition.
                                      Degill Corp. v. Commissioner, 62 T.C. at 300 (emphasis
                                      added). We were careful not to suggest that a temporary
                                      absence of officers from the U.S. home office of a domestic
                                      corporation requires the 150-day rule to apply. Id. We stated:
                                      ‘‘Here we have a permanent absence from the United States
                                      which would have invoked the 150-day rule even under the
                                      former stricter rule of Rebecca S. Hamilton, 13 T.C. 747
                                      (1949).’’ Id. In other words, we saw no need to address the
                                      question of whether, on account of the overseas travel of the
                                      officers of a domestic, U.S. headquartered corporation, the
                                      corporation would be considered as physically located abroad,
                                      so as to be entitled to 150 days to file a petition pursuant to
                                      the temporarily-absent-from-the-country rule we adopted in
                                      Estate of Krueger v. Commissioner, 33 T.C. 667.
                                         While physical location and residence will often coincide, a
                                      taxpayer may not at all times be physically located (present)
                                      at her residence. If, as we said in Degill Corp. v. Commis-
                                      sioner, 62 T.C. at 299, ‘‘the crucial criterion’’ is whether the
                                      taxpayer ‘‘is physically located outside the United States’’,




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                                      (48)                            SMITH v. COMMISSIONER                                         65


                                      then, when residence and location fail to coincide, the former
                                      must give way to the latter.
                                         Our position with respect to determining whether a tax-
                                      payer is a person outside the United States (and thus enti-
                                      tled to 150 days to file a petition) is distilled in the following
                                      language from Looper v. Commissioner, 73 T.C. at 694: ‘‘the
                                      150-day rule applies either when the taxpayer is out of the
                                      country or when the address on the notice is a foreign
                                      address’’. And, as the development of our caselaw shows, out
                                      of the country means ‘‘physically located outside the United
                                      States’’. Degill Corp. v. Commissioner, 62 T.C. at 299. 3
                                      Although we continue on occasion to cite Hamilton, the por-

                                           3 There
                                                 are, of course, the questions of ‘‘when’’ and of for ‘‘how long’’ the
                                      taxpayer must be absent from the country in order to be allowed 150 days
                                      to file a petition. In Malekzad v. Commissioner, 76 T.C. 963, 969 (1981),
                                      we noted that, while sec. 6213(a) prescribes that the period (whether 90
                                      or 150 days) to file a petition runs from the date of mailing of the statutory
                                      notice, the statute does not prescribe the time as of when the determina-
                                      tion is to be made that the notice is addressed to a person outside the
                                      United States. We stated: ‘‘In determining the applicability of the 150-day
                                      period as opposed to the 90-day period, * * * the Court has chosen to look
                                      at both the date of mailing of the statutory notice and the date it was fi-
                                      nally received by the taxpayer.’’ Id. at 969–970. The notice in Malekzad
                                      was delivered to the taxpayers’ home on a Saturday. Earlier on that day
                                      they had departed on an overnight trip to Mexico. We refused to read the
                                      statute as saying that the applicability of the 150-day period turns on the
                                      taxpayer’s location at the exact time the notice is delivered by the Postal
                                      Service to the taxpayer’s home. Id. at 969. Nevertheless, although appar-
                                      ently granting that, because of their departure from the United States on
                                      the delivery day, the Malekzads were outside the United States on that
                                      day, we held that their absence was too brief to entitle them to an ex-
                                      tended period to file a petition. In Malekzad, we first made clear that a
                                      taxpayer has 150 days from the date a statutory notice is mailed to file
                                      a petition if, on the day the notice is delivered, she is outside the United
                                      States. We then determined that, if the taxpayer departs from the United
                                      States on the delivery day, she is deemed to be outside the United States
                                      for all of that day. We thus resolved an ambiguity with respect to a tax-
                                      payer’s location on the delivery date. There is no ambiguity in this case
                                      as to petitioner’s location on the day the notice was delivered to her post
                                      office box: She was in San Francisco. As evidenced by Malekzad, and as
                                      discussed in the next section of this dissenting opinion, we may disregard
                                      a taxpayer’s ephemeral absence from, or presence in, the United States.
                                      Petitioner’s presence in the United States was not, as we have considered
                                      the term, ephemeral. She is entitled to only 90 days to file the petition.




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                                      66                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      tion of that report that pegs an extended period to file a peti-
                                      tion to residence abroad is an anachronism.
                                           D. Ephemeral Presence Disregarded
                                         An expatriate need not worry that her ephemeral presence
                                      in the United States will limit her to 90 days to petition a
                                      statutory notice delivered to her U.S. last known address
                                      while she was for a short time in (perhaps transiting) the
                                      United States. While the authority addresses the reverse
                                      situation, i.e., whether a taxpayer’s temporary absence from
                                      the United States makes him ‘‘a person outside the United
                                      States’’ (with 150 days to file a petition), the deciding prin-
                                      ciples should be the same. In Cowan v. Commissioner, 54
                                      T.C. 647, 652 (1970), we held that the taxpayers, ‘‘who
                                      merely went across the border into Mexico for part of 1 day’’
                                      were not persons outside the United States entitled to 150
                                      days to file their petition. In Malekzad v. Commissioner, 76
                                      T.C. 963, 970 (1981), allowing no extended filing period on
                                      account of the taxpayers’ overnight trip to Mexico, we
                                      described the taxpayer’s 11-hour absence in Cowan as
                                      ‘‘ephemeral’’ and added: ‘‘By the same token, a mere ephem-
                                      eral presence in the United States on the date of mailing of
                                      the statutory notice also will not necessarily deprive a tax-
                                      payer of the benefits of the 150-day period’’. In Levy v.
                                      Commissioner, 76 T.C. 228, the taxpayers were entitled to
                                      150 days to file their petition where they left on a 5-day trip
                                      to Jamaica on the day a statutory notice was mailed to their
                                      residence and the notice was awaiting them on their return.
                                      Considering these cases, our position appears to be that a
                                      few-hours’ or an overnight absence from the United States is
                                      ephemeral (i.e., it is as if the taxpayer never left the
                                      country), whereas an absence of four days encompassing the
                                      mailing and delivery of the notice places the taxpayer ‘‘out-
                                      side the United States’’ for purposes of section 6213(a). Thus,
                                      even under the majority’s interpretation that a taxpayer is ‘‘a
                                      person outside the United States’’ (entitled to 150 days to file
                                      a petition) if she resides abroad and is only temporarily in
                                      the United States when a statutory notice is mailed to her
                                      U.S. last known address, Levy would appear to require that
                                      petitioner be accorded only 90 days to file since she was in
                                      the United States for just over a two-week period during




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                                      (48)                            SMITH v. COMMISSIONER                                         67


                                      which the notice was both mailed to, and delivered to, her
                                      last known address, in the United States. In other words, her
                                      physical presence in the United States was not sufficiently
                                      temporary (i.e., ‘‘ephemeral’’), and it cannot be disregarded
                                      for purposes of section 6213(a).
                                           E. When Absence Matters
                                         An expatriate may visit the United States, and a U.S. resi-
                                      dent may travel abroad. In Lewy v. Commissioner, 68 T.C.
                                      779, the taxpayer, a resident of France, who was temporarily
                                      in the United States, left the country the day after a statu-
                                      tory notice was mailed to his U.S. address. We allowed the
                                      taxpayer 150 days to file a petition, finding that Congress
                                      intended the extended period to apply not only to those who,
                                      because of receipt of the notice after 90 days have run, are
                                      ‘‘totally prevented’’ from petitioning the Tax Court within
                                      that time, but also ‘‘to persons like petitioner who experience
                                      significant delays in receiving notices due to absence from
                                      the country.’’ Id. at 785. We stated: ‘‘We are unwilling to
                                      frustrate this clear congressional policy by relegating peti-
                                      tioner to a lesser period whenever there exists some conceiv-
                                      able way filing could be accomplished within that time.’’ Id.
                                      We added: ‘‘Our reasoning in Hamilton * * * provides fur-
                                      ther support for our conclusion’’, and we quoted language
                                      from Hamilton in which we pointed out that, if residence
                                      were decisive, physical presence in the United States on the
                                      day a statutory notice was mailed to him would not deprive
                                      the taxpayer of 150 days to file a petition. 4 Id.
                                         In Levy v. Commissioner, 76 T.C. 228, discussed supra, the
                                      statutory notice was mailed to the taxpayers at their last
                                      known address, their residence, in Chicago, Illinois, on the
                                      same day they departed the United States for a five-day
                                      vacation in Jamaica. The notice was delivered to their resi-
                                      dence on the second day of their vacation and was there
                                      when they returned, three days later. We allowed the tax-
                                      payers 150 days to file a petition. We first put aside the fact
                                      that they were both inside and outside the United States on
                                      the day the notice was mailed to them, stating: ‘‘In any
                                         4 The quote is dictum, the Hamilton court not being presented with that

                                      circumstance. Indeed, the majority describes the quote as the Hamilton
                                      court’s musing. See op. Ct. p. 53.




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                                      68                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      event, the petitioners were abroad when the statutory notice
                                      was delivered at their home, and this seems to be what the
                                      statute contemplates.’’ Id. at 231. We then stated: ‘‘The 150-
                                      day period has been held to apply not only to * * * [expatri-
                                      ates] but also to persons who are temporarily absent from
                                      the country’’. Id. We added, relying for authority on Lewy:
                                      ‘‘In addition, the absence from the country must result in
                                      delayed receipt of the deficiency notice.’’ Id. (citing Lewy v.
                                      Commissioner, 68 T.C. at 783).
                                         Clearly, in Levy, the taxpayers’ U.S. residence played no
                                      role in our consideration of whether they were entitled to a
                                      150-day filing period. Indeed, we dismissed residence as a
                                      relevant concern. And in retrospect, while in Lewy we found
                                      support in Hamilton, the fact that Mr. Lewy was a French
                                      resident made no difference whatsoever. What made a dif-
                                      ference in Lewy (and it is for the thing that made a dif-
                                      ference in Lewy that we cited it in Levy) was that Mr. Lewy’s
                                      ‘‘absence from the country * * * result[ed] in [his] delayed
                                      receipt of the deficiency notice.’’ Levy v. Commissioner, 76
                                      T.C. at 231. 5
                                         A close reading of Levy and Lewy shows that, in the case
                                      of those temporarily inside or outside the United States, resi-
                                      dence is beside the point. Absence from the United States,
                                      resulting in delay, is what matters.
                                           F. Hamilton Not Dispositive
                                         In Hamilton v. Commissioner, 13 T.C. 747, we read what
                                      is now the term ‘‘a person outside the United States’’ as, in
                                      effect, describing an expatriate. Today, we must decide
                                      whether an expatriate whose last known address is in the
                                      United States and who is physically present in the United
                                      States when a statutory notice is mailed to that address is,
                                        5 The notion that to be entitled to 150 days to file a petition the taxpayer

                                      must show not only absence from the country but also an attendant delay
                                      in receipt of the notice was established in Cowan v. Commissioner, 54 T.C.
                                      647 (1970), a Court-reviewed report. In Cowan, discussed supra, we found
                                      that the taxpayers, who were in Mexico for about 11 hours on the day a
                                      statutory notice was mailed to their North Hollywood, California, address,
                                      were entitled to only 90 days to file a petition. We quoted the ‘‘resident-
                                      abroad-irrelevant language’’ from Mindell and, relied, instead, on the fact
                                      that spending 11 hours in Mexico is not likely to result in delayed delivery.
                                      Id. at 652.




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                                      (48)                            SMITH v. COMMISSIONER                                         69


                                      at that time, ‘‘a person outside the United States’’. With
                                      respect to petitioner, the majority states: ‘‘her status as a
                                      person ‘outside of the United States’ is largely a function of
                                      her residency and is not vitiated by her brief presence in the
                                      United States.’’ See op. Ct. p. 55 (emphasis added). If her
                                      status is ‘‘largely’’ a function of her residence, then it is not
                                      exclusively a function of her residence, and Hamilton is not
                                      dispositive. In other words, for the majority, petitioner’s
                                      expatriation is not, in and of itself, sufficient to qualify her
                                      for an extended (150-day) period to file a petition.
                                           G. Other Factors
                                         In Hamilton we read Congress’ words ‘‘a person outside the
                                      States of the Union and the District of Columbia’’ 6 as if Con-
                                      gress had in fact written ‘‘a person residing outside the
                                      States of the Union and the District of Columbia’’. The
                                      majority now reads the words of section 6213(a) ‘‘a person
                                      outside the United States’’ as if Congress had in fact written
                                      ‘‘a person residing outside the United States who is briefly
                                      present in the United States and who, while present, does not
                                      receive the notice’’.
                                         The addition of the nonreceipt criterion is evidenced by the
                                      majority’s including in its explanation of why petitioner is in
                                      the category of taxpayers that Congress intended to benefit
                                      with an extended filing deadline a finding that petitioner
                                      (while in the United States) was not at the address to which
                                      the notice was delivered. See op. Ct. p. 55. The importance
                                      of that finding is evidenced by the majority’s preceding
                                      discussion concluding that, not only does the briefness of
                                      petitioner’s presence play a role, see op. Ct. pp. 53–54, but:
                                      ‘‘Similarly, a foreign resident may be ‘a person outside the
                                      United States’ even if the foreign resident is in the United
                                      States on the notice’s delivery date (i.e., if the taxpayer ulti-
                                      mately receives notice several months later while in the for-
                                      eign country).’’ (Emphasis added.) The inference is that, if an
                                      expatriate receives a statutory notice while present in the
                                      United States, the expatriate is, as of the time of receipt, no
                                      longer ‘‘a person outside the United States’’.
                                         Certainly, Congress knows how to make clear that non-
                                      receipt of a statutory notice entitles a person to some relief.
                                           6 The   predecessor to today’s ‘‘a person outside the United States’’.




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                                      70                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      In specifying the rules for a so-called collection due process
                                      hearing, Congress, in section 6330(c)(2)(B), provided that a
                                      person may at such a hearing raise a challenge to the exist-
                                      ence or amount of the underlying tax liability ‘‘if the person
                                      did not receive any statutory notice of deficiency for such tax
                                      liability’’. To the contrary, receipt of the notice plays no role
                                      in the interaction between section 6212(b)(1), which, in gen-
                                      eral, makes ‘‘sufficient’’ the mailing of the statutory notice to
                                      the taxpayer’s last known address, and section 6213(a),
                                      which allows the taxpayer 90 days or, in the case of a ‘‘notice
                                      * * * addressed to a person outside the United States’’, 150
                                      days after the notice is mailed to file a petition with the Tax
                                      Court. Indeed, the irrelevance of receipt is underlined by the
                                      concluding words of section 6212(b)(1), which provide that a
                                      notice mailed to the taxpayer’s last known address is suffi-
                                      cient ‘‘even if such taxpayer is deceased, or is under a legal
                                      disability, or, in the case of a corporation, has terminated its
                                      existence.’’ Caselaw is consistent with the absence of any
                                      requirement of receipt before the taxpayer’s section 6213(a)
                                      period to petition the Tax Court begins to run. See, e.g.,
                                      Keado v. United States, 853 F.2d 1209, 1211–1212 (5th Cir.
                                      1988); DeWelles v. United States, 378 F.2d 37, 39 (9th Cir.
                                      1967); Estate of McKaig v. Commissioner, 51 T.C. 331, 335
                                      (1968); Spivey v. Commissioner, T.C. Memo. 2001–29, aff ’d,
                                      29 Fed. Appx. 575 (11th Cir. 2001).
                                         The addition of a nonreceipt criterion to the determination
                                      of whether a statutory notice is addressed to a person outside
                                      the United States also leads to a paradox if the taxpayer
                                      specified in a notice addressed to her last known (U.S.)
                                      address is in the country when the notice is mailed and
                                      delivered to that address but is not physically present to
                                      retrieve it. If she does not retrieve it before departing the
                                      United States, the majority would conclude that it was
                                      addressed to a person outside the United States, who has
                                      150 days to file her petition. If, on the other hand, she
                                      retrieves it before departing, then, apparently, the majority
                                      would conclude that it was not addressed to a person outside
                                      the United States, who has only 90 days to file her petition.
                                      As to petitioner, her status was thus indeterminate between
                                      the delivery of the notice to her post office box on December
                                      31, 2007, and her departure from the United States on
                                      January 8, 2008. Section 6213(a) pegs the period during




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                                      (48)                            SMITH v. COMMISSIONER                                         71


                                      which a taxpayer may file a petition with the Tax Court to
                                      the date the notice is mailed. Until petitioner left the country
                                      on January 8, 2008, the period she had (90 or 150 days) to
                                      file her petition was not only unknown; it was, under the
                                      majority’s rationale, unknowable. When she left without
                                      retrieving the notice, she satisfied the majority’s definition of
                                      a person outside the United States; but, had she visited her
                                      post office box before departing and retrieved the notice, then
                                      her physical location, inside the United States, would have
                                      prevailed and her time to petition would have been fixed at
                                      90 days.
                                         The majority states: ‘‘Where a statute is capable of various
                                      interpretations, we are inclined to adopt a construction which
                                      will permit the Court to retain jurisdiction without doing
                                      violence to the statutory language.’’ See op. Ct. p. 51. I
                                      believe that the majority’s reading of the words in section
                                      6213(a) ‘‘a person outside the United States’’ as if Congress
                                      had, in fact, written ‘‘a person residing outside the United
                                      States who is briefly present in the United States and who,
                                      while present, does not receive the notice’’ does do violence to
                                      the statutory language. We must keep in mind the general
                                      proposition that grants of jurisdiction to the Federal courts
                                      should be narrowly construed. See, e.g., United States v.
                                      Mitchell, 445 U.S. 535, 538 (1980):
                                              It is elementary that ‘‘[t]he United States, as sovereign, is immune
                                           from suit save as it consents to be sued . . ., and the terms of its consent
                                           to be sued in any court define that court’s jurisdiction to entertain the
                                           suit.’’ United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of
                                           sovereign immunity ‘‘cannot be implied but must be unequivocally
                                           expressed.’’ United States v. King, 395 U.S. 1, 4 (1969). In the absence
                                           of clear congressional consent, then, ‘‘there is no jurisdiction in the Court
                                           of Claims more than in any other court to entertain suits against the
                                           United States.’’ United States v. Sherwood, supra, at 587–588. [Some
                                           citations omitted.]

                                      III. Conclusion
                                        The meaning of the expression ‘‘a person outside the
                                      United States’’ has during the last 60 years taken on a fixed
                                      meaning, dependent on the taxpayer’s physical location. The
                                      majority’s rewrite of section 6213(a) not only contradicts that
                                      meaning but presents an implausible construction of the
                                      statute. We should grant respondent’s motion to dismiss for




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                                      72                  140 UNITED STATES TAX COURT REPORTS                                     (48)


                                      lack of jurisdiction on the ground that petitioner had 90 days
                                      to file the petition and the petition, filed on the 148th day,
                                      was not timely.
                                        HOLMES, GUSTAFSON, and MORRISON, JJ., agree with this
                                      dissent.



                                         GUSTAFSON, J., dissenting: The taxpayer in this case did
                                      not file her petition ‘‘within 90 days’’ after the mailing of the
                                      IRS’s notice of deficiency, see 26 U.S.C. sec. 6213(a), but
                                      rather 148 days. We therefore lack jurisdiction unless ‘‘the
                                      notice is addressed to a person outside the United States.’’
                                      Id. It was not so addressed.
                                         Rather, the notice was addressed to the taxpayer’s post
                                      office box address in San Francisco, California (an address
                                      obviously inside the United States); and at the time the
                                      notice was mailed by the IRS and delivered to that post office
                                      box, the taxpayer was in San Francisco (i.e., was inside the
                                      United States). The notice of deficiency was therefore neither
                                      addressed to nor delivered to ‘‘a person outside the United
                                      States’’. The deadline for filing a petition was therefore the
                                      90-day deadline.
                                         Various other facts about the taxpayer’s situation could be
                                      adduced to make the situation appear more sympathetic
                                      (e.g., she was very busy moving, and she never saw the
                                      notice) or less sympathetic (e.g., she was in San Francisco a
                                      full week after delivery but did not check her mail); but the
                                      statute makes no mention of such considerations. It provides
                                      a 90-day deadline, and it makes an exception only when ‘‘the
                                      notice is addressed to a person outside the United States.’’
                                      That exception is not met here. I would dismiss the petition.
                                         HALPERN, KROUPA, HOLMES, and MORRISON, JJ., agree
                                      with this dissent.

                                                                               f




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