- 5 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011