Thomas W. Hunter, Jr. - Page 5

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          held that                                                                   
               a taxpayer’s last known address is that address which                  
               appears on the taxpayer’s most recently filed return,                  
               unless respondent has been given clear and concise                     
               notification of a different address.                                   
               We also held in Abeles that once a taxpayer notifies the IRS           
          that his address has changed, the Commissioner “must exercise               
          reasonable care and diligence in ascertaining, and mailing the              
          notice of deficiency to, the correct address.”  Id. at 1031.  And           
          we focus in deciding whether he’s exercised reasonable care on              
          “the information that would be available to the IRS at the time             
          that it issued the deficiency if it had used reasonable                     
          diligence.”4  Ward v. Commissioner, 907 F.2d 517, 521 (5th Cir.             
          1990), revg. and remanding 92 T.C. 949 (1989).  So the specific             
          question to be answered is whether petitioner, by listing his new           
          address on his power-of-attorney form, gave respondent “clear and           
          concise notification” of his new address.                                   
               Two courts have already answered the question.  In Rizzo v.            
          Davis, 43 AFTR 2d 985, 79-1 USTC par. 9310 (W.D. Pa. 1979), the             


               4 Most circuits consider the “last known address” issue to             
          be a purely factual question, e.g., McPartlin v. Commissioner,              
          653 F.2d 1185, 1189 (7th Cir. 1981), or a “mixed question” which            
          is “essentially factual”, King v. Commissioner, 857 F.2d 676, 678           
          (9th Cir. 1988), affg. 88 T.C. 1042 (1987); cf. Armstrong v.                
          Commissioner, 15 F.3d 970, 973 (10th Cir. 1994), affg. T.C. Memo.           
          1992-328.  In a case involving “the extraordinary circumstances             
          of taxpayers whose address had changed twice * * * even though              
          they have never moved,” the Second Circuit reviewed de novo the             
          “legal conclusion as to the [Commissioner’s] satisfaction of the            
          reasonable diligence requirement”.  Sicari v. Commissioner, 136             
          F.3d 925, 928 (2d Cir. 1998), revg. T.C. Memo. 1997-104.  The               
          Sixth Circuit has not decided what standard of review applies.              



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