- 6 -
these circumstances, the date on an electronically generated
FedEx label, created and applied by a FedEx employee, is
conclusive proof of the date of mailing equivalent to a USPS
postmark. Austin v. Commissioner, T.C. Memo. 2007-11; Notice 97-
26, 1997-1 C.B. 413, 414. We are persuaded that the
electronically generated label on the FedEx envelope containing
the petition was created and applied by a FedEx employee; the
"Ship Date" of November 14, 2006, that appears on the label is
therefore treated as the date of mailing for purposes of section
7502. Consequently, the petition is not deemed timely under that
section.
We next consider whether the notice of deficiency was valid.
When the Secretary determines that there is a deficiency, "he is
authorized to send notice of such deficiency to the taxpayer by
certified mail or registered mail." Sec. 6212(a). Such notice
of deficiency "shall be sufficient" if mailed to the taxpayer's
last known address as specified in section 6212(b)(1). Section
6212(b)(1) does not create a mandatory address to which a notice
of deficiency must be mailed; rather, it is a "safe harbor"
available to the Commissioner which renders a notice of
deficiency valid irrespective of actual receipt. Borgman v.
Commissioner, 888 F.2d 916, 917 (1st Cir. 1989), affg. T.C. Memo.
1984-503; Mulvania v. Commissioner, 81 T.C. 65, 67-68 (1983).
Section 6212(b)(1) does not invalidate other methods of
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 10, 2007