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The burden of proof is on the taxpayer to prove that the
Commissioner did not exercise "reasonable diligence". Cyclone
Drilling, Inc. v. Kelley, 769 F.2d 662, 664 (10th Cir. 1985).
Under similar circumstances, the Court of Appeals for the Tenth
Circuit, in holding that the taxpayer had failed to prove the
lack of due diligence by the Commissioner, stated that "[A]
taxpayer, who did not bother to file a tax return * * * [for a
number of years], will not now be heard to complain that the IRS
was not adequately diligent in its efforts to track him down."
Gille v. United States, 33 F.3d 46, 48 (10th Cir. 1994). We
similarly hold that petitioner has failed to prove that
respondent did not exercise reasonable diligence in mailing the
notice of deficiency to petitioner's Kansas Address.
In view of the foregoing, we shall deny petitioner's motion
to dismiss and grant respondent's motion to dismiss.4
4 Although petitioner cannot pursue his case in this Court,
he is not without a legal remedy. In short, petitioner may pay
the tax, file a claim for refund with the Internal Revenue
Service, and if the claim is denied or not acted on within 6
months, sue for a refund in the appropriate Federal District
Court or the U.S. Court of Federal Claims. See McCormick v.
Commissioner, 55 T.C. 138, 142 (1970).
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