But Wait For the Trial

That’s Judge Halpern’s message for Teflon Jr., John A. Gotti, in JAG Brokerage, Inc., 2012 T. C. Memo. 315, filed 11/13/12.

The only issue the corporate petitioner (miscaptioned as JAG Brokerage, Inc., but probably really J. A. G. Brokerage Corp., 2012 T. C. Memo. 315, at p. 11, footnote 2) raises in its petition after losing the CDP is the amount of its tax liabilities, which the AO threw out, claiming petitioner got a SNOD and didn’t petition in the 90 days. IRS claims they mailed JAG a SNOD to its last known address more than 90 days pre-petition, and wants summary judgment dismissing the petition.

IRS also mailed notices to Mrs. Teflon Jr. (Kim) and to John hisself, but John claims he was in jail, and in solitary to boot, so had limited means of communication. IRS says they knew John was in the Metropolitan Detention Center, Brooklyn, New York, but didn’t know he was in solitary.

Besides, “… a copy of a Postal Service Form 3877 attached to the declaration evidences the mailing to petitioner at what we presume to be its last known address of a deficiency notice for the years in issue, and a copy of a Postal Service Track & Confirm statement confirms its subsequent delivery to that address.  The Postal Service Form 3877 also evidences the mailing to the Gottis of six ‘notices of claim disallowance’ (not ‘notices of deficiency’) for 2004 and 2005, but not 2006, with two of them, for 2004 and 2005, addressed to Mr. Gotti at the detention center and the rest addressed to one or the other of the Gottis at the presumed last known address.  There is no evidence that any of the notices of claim disallowance were delivered.”

IRS trots out the old “mailbox rule” that, absent direct evidence of receipt, proof of mailing presumes official regularity and delivery. That’s fine for individuals, but here we have a corporate petitioner, so we have to ask whether an individual employed by, or acting for, the corporation, received the SNOD. Judge Halpern canvasses the legislative history, and Congress seems to want someone to receive the SNOD to trigger the 90-day time limit to file, but doesn’t say who or how if the SNOD is directed to a corporation.

Judge Halpern: “Both our own analysis and respondent’s position with respect to the adequacy of receipt of the deficiency notice by Mr. Gotti suggest that there is an unresolved question of law as to whether a corporate taxpayer has actually received a deficiency notice for purposes of section 6330(c)(2)(B) if it can show that the notice was not timely received by an individual authorized to act for the corporation.  And while the inference of receipt to be drawn from the mailbox rule may, if unrebutted, be sufficient to carry respondent’s burden of showing receipt by petitioner of the deficiency notice, we do have the fact, admitted by respondent, that Mr. Gotti was incarcerated when the notice was mailed.  He is an officer of petitioner, and we assume that he could have acted for petitioner.  Petitioner did not respond to the motion and has not established that (1) Mr. Gotti lacked timely knowledge of the notice (and was, therefore, precluded from acting on it) and (2) there was no one else knowledgeable of the notice and able to act on it. While for those reasons we might conclude that petitioner has failed to rebut the inference to be drawn from the mailbox rule (and, thus, has failed to show a dispute as to a material issue of fact), given the uncertainty as to the relevance of receipt by someone authorized to act for the corporation, we are hesitant to, and will not, grant the motion.  If the case proceeds to trial, the parties can assist us in resolving the uncertainties.” 2012 T. C. Memo. 315, at pp. 11-12 (Footnote omitted).

The omitted footnote says Kim Gotti signed the petition, but doesn’t indicate whether she is an owner, officer or employee of JAG. 2012 T. C. Memo. 315, at p. 11, footnote 2.

So John, you can assist Judge Halpern in resolving the uncertainties.