United States Court of Appeals, Ninth Circuit

“ We believe Patmon & Young is indistinguishable from the case before us. In both cases, the taxpayer refused delivery of a notice of deficiency which she held in her hands and simply refused to open or read; indeed, Ellen rejected the notice after consulting an attorney. We are not persuaded by Ellen's attempts to distinguish Patmon & Young. She first argues that the IRS, by mailing its other correspondence regarding the 1988 tax year to the New York address, mislead her into believing that whatever it might mail to the Novato, California address would be either duplicative or unimportant. ”

“ The Tax Court found that Ellen had received actual notice of the IRS' notice of deficiency at the time she refused delivery of the notice; her December 1993 petition, filed over a year after the IRS mailed the notice of deficiency, was thus untimely. This appeal followed.
II. [1] The IRS must give notice to a taxpayer before it may assess or collect any tax deficiency. 26 U.S.C. § 6213 (a) . The IRS validly discharges this obligation if: (1) it mails the notice to the taxpayer's "last known address," 26 U.S.C. § 6212 (b) (1) ”

“ Ellen Erhard appeals the Tax Court's dismissal of her petition as untimely filed.
We affirm.
I. Ellen and Werner Erhard filed joint tax returns for the 1984, 1985, 1986, 1987, and 1988 tax years. When they divorced, Ellen executed a power of attorney appointing Werner as her attorney-in-fact and authorizing him to act on her behalf regarding the 1984, 1985, and 1986 tax years. Werner, in turn, executed a second power of attorney authorizing New York attorney Michael Saltzman to act on behalf of him and Ellen for the 1984, 1985, 1986, and 1987 tax years (hereinafter "Saltzman power") . ”