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Id. at 59. Distinguishing other cases, the Court observed that
"The filing of the petition was timely in all of those cases and
obviously the taxpayer had suffered no damage and had lost no
right as a result of the error in the address. However, those
cases do not justify a holding here that Heaberlin had waived
anything by filing a petition after the expiration of the 90
days". Id.
In Mulvania v. Commissioner, supra, the taxpayer had actual
notice, through his accountant (who had received a copy), that a
notice of deficiency had been sent to him. The notice was sent
to St. Linda Isle Drive rather than to the taxpayer's correct
address at 57 Linda Isle Drive. However, affirming the Tax
Court's order of dismissal, the Court of Appeals concluded that
"The IRS is not forgiven for its clerical errors or for mailing
notice to the wrong party unless the taxpayer, through his own
actions, renders the Commissioner's error harmless. In this
case, the notice of deficiency became null and void when it was
returned to the IRS undelivered." Id. at 1380.
In Council v. Burke, supra, the taxpayers did not file a
timely petition and challenged the validity of a misaddressed
notice of deficiency. In that case, the Commissioner offered
testimonial evidence, similar to that offered here, that the
letter carrier might have delivered the notice of deficiency to
the correct address even though it was misaddressed. The
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