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(1) Respondent had a due process obligation to provide actual
notice of the deficiency notice, and (2) respondent did not
exercise due diligence in ensuring actual notice to them.
Petitioners cite Tulsa Professional Collection Servs., Inc. v.
Pope, 485 U.S. 478 (1988), in support of their first contention.
In support of their second contention, petitioners argue that
respondent should have sent a copy of the deficiency notice by
ordinary mail, or should have contacted either petitioners or
their attorney by telephone. Petitioners aver they had a
telephone answering machine at their Grand Avenue address where a
message could have been left by respondent's agent that a notice
of deficiency had been mailed and returned to respondent
undelivered.
As a general rule, the Commissioner has no duty to
effectuate delivery of the notice after it is mailed. Monge v.
Commissioner, supra at 33. The legislative history of the last
known address rule suggests that Congress considered but rejected
requiring actual receipt of the notice because such a requirement
would impose an almost impossible burden on the IRS to prove
actual receipt and to keep track of the whereabouts of all
taxpayers. See H. Rept. 2, 70th Cong., 1st Sess. (1927), 1939-1
C.B. (Part 2) 384, 399; S. Rept. 960, 70th Cong., 1st Sess.
(1928), 1939-1 C.B. (Part 2) 409, 430. Instead, Congress adopted
the "last known address" rule, thus giving the IRS a safe harbor:
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