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Lewin v. Commissioner of Internal Revenue

decided: January 12, 1978.

ADOLPH LEWIN AND JOYCE LEWIN, PETITIONERS-APPELLANTS,
v.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT-APPELLEE



Appeal from an Order of the United States Tax Court William M. Fay, Judge.

Cummings and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Per Curiam

This is an appeal by the taxpayers, Adolph and Joyce Lewin, from the order of the Tax Court dismissing their petition for a redetermination of income tax deficiencies for the years 1966, 1967, and 1968, the basis of the dismissal being lack of jurisdiction resulting from an untimely filing of their petition.

Upon the basis of the briefs, oral argument, and the record, we are satisfied that the Tax Court reached the correct result for the correct reasons. We, therefore, adopt the Memorandum Opinion of the Tax Court as the opinion of this court, and attach a copy thereof to this opinion as Appendix A. Inasmuch as no precedent in point in this circuit has been brought to our attention,*fn1 we are entering our decision in this case as a per curiam opinion so that our decision will be generally available through the Federal Reporter system even though the Tax Court Memorandum Opinion is published in various looseleaf services.

We also note that the appellants in their briefs in this court raise a question of due process. We find no merit in this constitutional claim. Persons in the taxpayers' position have the constitutionally adequate remedy of paying the tax and then instituting a refund suit, with the result that failure to receive the deficiency notice, where there has been compliance with the statutory procedures for notice, and the consequent loss of access to the Tax Court violates no constitutional safeguards. See Phillips v. Commissioner, 283 U.S. 589, 75 L. Ed. 1289, 51 S. Ct. 608 (1931); Brown v. Lethert, 360 F.2d 560, 562 (8th Cir. 1966); and Cohen v. United States, 297 F.2d 760, 772 (9th Cir. 1962).

AFFIRMED.

APPENDIX A

T.C. Memo. 1976-355

UNITED STATES TAX COURT

ADOLPH LEWIN and JOYCE LEWIN, Petitioners vs. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2866-74.

Filed November 24, 1976.

Edward J. Calihan, Jr. and Anna R. Lavin, for ...


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