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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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