Lester Johnson and Sherelle D. Brooks-Johnson - Page 9

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          filed return.4  Respondent’s computer records did not show a                
          different address.  Secondly, notwithstanding petitioners’                  
          allegation that they did not receive a copy of the 1994 notice of           
          deficiency, Mr. Johnson apparently arranged for a conference to             
          reconsider the audit findings for 1994 and brought relevant                 
          information with him.  Mr. Johnson was afforded the opportunity             
          to testify and explain this anomaly, but he declined.  We are               
          entitled to consider that his testimony would not have been                 
          favorable to petitioners’ position.  McKay v. Commissioner, 886             
          F.2d 1237, 1238 (9th Cir. 1989), affg. 89 T.C. 1063 (1987);                 
          Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165            
          (1946), affd. 162 F.2d 513 (10th Cir. 1947).                                
               Petitioners were advised several times that the period for             
          timely filing a petition expired on December 2, 1996, and they              
          had ample time to do so.                                                    
               Petitioners contend that their submission of Forms 4361 and            
          8821 was sufficient to notify respondent of their new address.              
          From this record, we cannot conclude that petitioners gave clear            
          and concise notice of a new address.  Both of those forms were              
          returned to Mr. Johnson, and there is no evidence that the mere             
          receipt of either of these forms by the service center causes a             
          change to be made to respondent’s computer records.  In                     

          4  There is no indication that petitioners filed a 1995                     
          return or that such a return, if filed, reflected any different             
          address.                                                                    




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