1 All section references are to the Internal Revenue Code as

amended, unless otherwise indicated. All Rule references are to

the Tax Court Rules of Practice and Procedure.

T.C. Memo. 1996-377

UNITED STATES TAX COURT

PETER PETTONG AND CHUNG-YIN CHIANG, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3642-94. Filed August 15, 1996.

Peter Pettong Chiang, pro se.

Stephanie Jensen, for respondent.

MEMORANDUM OPINION

GOLDBERG, Special Trial Judge: This case was assigned

pursuant to the provisions of section 7443A(b)(3) and Rules 180,

181, and 183.1 This matter is before the Court on respondent's

motion to dismiss for lack of jurisdiction. Respondent moved for

dismissal on the grounds that the notice of deficiency for
2

taxable years 1988 and 1989 was mailed to petitioners' last known

address and the petition was untimely filed. A hearing was held

on this motion in Dallas, Texas. 

Immediately prior to the hearing, petitioners filed a motion

to modify and amend the stipulation of facts. On brief,

respondent maintained that the motion consists solely of a

restatement of facts previously admitted into evidence and, as a

result, filed no objection thereto.

We grant petitioners' motion to modify and amend the

stipulation of facts because respondent has no objection thereto

and the modifications simply clarify facts previously agreed to

by the parties. Accordingly, we need only address respondent's

motion to dismiss. 

Petitioners resided in Fort Worth, Texas, at the time their

petition was filed.

Background

On January 14, 1991, the Internal Revenue Service (IRS)

District Office located in Fort Worth, Texas, mailed a letter to

petitioners at 7221 Francisco Drive, Fort Worth, Texas (the Fort

Worth address), asking their cooperation with the examination of

their 1988 and 1989 Federal income tax returns. In a letter

addressed to the IRS dated January 17, 1991, petitioner Peter

Pettong Chiang (petitioner) explained that he and his family had

relocated to Athens, Tennessee, and was informed of the IRS

letter by his sister, who remained at the Fort Worth address. He
3

did not know when his job in Athens would end and requested that

the examination be moved to the IRS office nearest to Knoxville,

Tennessee.

On June 3, 1991, the Chattanooga, Tennessee, IRS District

Office mailed a letter to petitioners at 2108 Congress Parkway

#208, Athens, Tennessee, informing them again that their 1988 and

1989 returns were selected for examination and asking that they

schedule a meeting. Petitioner notified the Chattanooga office

on June 27 that its letter of June 3 had been forwarded by his

former landlord in Tennessee to his sister in Fort Worth, whose

son then called petitioner in California. Petitioner scheduled a

meeting with the IRS for September 3 and 4, 1991, in California. 

In a letter to the IRS dated August 28, 1991, petitioner

explained that he was laid off from his job in California in

July, causing him to move to Waltham, Massachusetts, and asked

that the examination scheduled for September 3 and 4 be

rescheduled and moved to the IRS office nearest to Waltham.

In a letter dated February 11, 1992, the IRS office in

Boston, Massachusetts, informed petitioners that the examination

of their 1988 and 1989 returns had been rescheduled for February

27, 1992, at the Boston office. On February 21, 1992, petitioner

sent a letter to the IRS Boston office informing them that he

would be unable to attend the February 27 appointment because he

was laid off from his position in Massachusetts. At this time,
4

petitioner was living at the Fort Worth address and asked that

the examination be moved to the IRS office in Fort Worth.

On June 3, 1992, in a letter addressed to petitioners at the

Fort Worth address, the IRS requested that they reschedule the

meeting for the examination of their 1988 and 1989 returns. In a

letter dated June 19, petitioner advised the IRS that he was in a

hospital in Wichita, Kansas, and expected to return to Texas as

soon as his health improved. He asked that the examination be

rescheduled to September 28 or 29, 1992, at the Fort Worth

office. The IRS granted this request; however, 4 days before the

scheduled meeting, petitioner again contacted the IRS and asked

for a postponement. In a letter dated September 24, 1992,

petitioner informed the IRS that he had relocated to Wichita for

employment and requested that the examination be moved to the IRS

office nearest to his new residence at 9100 E. Harry # 2715,

Wichita, Kansas 67207.

On October 7, 1992, the IRS office in Fort Worth sent

petitioners a letter at their Wichita address informing them of

proposed adjustments to their 1988 and 1989 returns, and giving

petitioners 30 days to respond. On October 20, 1992, the Austin

service center received petitioners' 1991 Federal income tax

return listing their residence as the Fort Worth address. In the

occupation box, petitioner wrote "Engineer (Construction Fields),

three different short-term assignments in three locations, away

from home." On November 25, 1992, petitioners met with Virginia
5

Grant, an IRS auditor in the Fort Worth office, to discuss

respondent's proposed adjustments to their 1988 and 1989 returns. 

In a letter dated December 15, 1992, and sent to petitioners at

their Fort Worth address, Ms. Grant asked for additional

documentation for purposes of the examination. On January 3,

1993, petitioner wrote to Shirley Wickwary, manager of the audit

division at the Fort Worth office, challenging the document

request and protesting the treatment they received during their

meeting with Ms. Grant. In this letter, petitioners listed their

address as the Fort Worth address.

The record in this case contains no further correspondence

between petitioners and respondent until June 22, 1993, when

respondent sent a notice of deficiency for 1988 and 1989 to the

Fort Worth address by certified mail. The notice of deficiency

was not returned to respondent; however, petitioners contend that

they did not receive the notice because they were residing at

2210 S. Oliver Street, Apartment 318 in Wichita, Kansas (the

Oliver Street address), from January 1993 to October 14, 1993. 

On August 16, 1993, respondent received petitioners' application

for an extension of time to file their 1992 return, wherein they

listed their address as the Fort Worth address. On October 25,

1993, respondent received petitioners' 1992 return, listing their

address as the Fort Worth address. A notice of deficiency for

tax year 1991 was sent to petitioners at the Fort Worth address

by certified mail on December 1, 1993. Petitioners claim to have
6

received this notice in or around February 1994 by regular first

class mail.

By letter dated February 23, 1994, received by the Court on

February 28, 1994, petitioners sought a redetermination of

deficiencies for the taxable years 1988, 1989, and 1991. This

Court filed the letter as a petition and ordered that a proper

amended petition be filed. Petitioners filed their amended

petition on August 2, 1994, contesting the deficiencies

determined for 1988, 1989, and 1991. They also attached the

notices of deficiency to their amended petition. 

In the notice of deficiency for 1988 and 1989, respondent

determined deficiencies in petitioners' Federal income tax in the

amounts of $6,581.04 and $9,256, respectively, and an addition to

tax for 1988 under section 6651 in the amount of $1,180.75. In

the notice of deficiency for 1991, respondent determined a

deficiency in petitioners' Federal income tax of $3,274. For

purposes of this opinion, we need not address the merits of

respondent's determinations. Our only task is to decide whether

the notice for 1988 and 1989 was sent to petitioners' last known

address pursuant to section 6212(b)(1).

Assuming, arguendo, that the notice for 1988 and 1989 is

valid, the 90-day period for filing a petition with this Court

expired on September 19, 1993, which date was not a legal holiday

in the District of Columbia. The petition was not filed in this
7

case until February 28, 1994, which date is beyond the 90-day

period.

Discussion

It is well settled that in order to maintain an action in

this Court there must be a valid notice of deficiency and a

timely filed petition. Abeles v. Commissioner, 91 T.C. 1019,

1025 (1988). Section 6212(a) authorizes the Secretary or his

delegate, upon determining that there is a deficiency in income

tax, to send a notice of deficiency "to the taxpayer by certified

mail or registered mail." Section 6212(b)(1) provides that a

notice of deficiency, with respect to an income tax, "shall be

sufficient" if it is "mailed to the taxpayer at his last known

address". As a general rule, the Commissioner has no duty to

effectuate delivery of the notice after it is mailed. Monge v.

Commissioner, 93 T.C. 22, 33 (1989).

Neither section 6212 nor the regulation promulgated

thereunder, section 301.6212-1, Proced. & Admin. Regs., defines

what constitutes a taxpayer's "last known address". We have

defined it as the taxpayer's last permanent address or legal

residence known by the Commissioner, or the last known temporary

address of a definite duration to which the taxpayer has directed

the Commissioner to send all communications during such a period. 

Weinroth v. Commissioner, 74 T.C. 430, 435 (1980); Alta Sierra

Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd.

without published opinion 538 F.2d 334 (9th Cir. 1976). Stated
8

otherwise, it is the address to which, in light of all the

surrounding facts and circumstances, the Commissioner reasonably

believed the taxpayer wished the notice to be sent. Weinroth v.

Commissioner, supra; Looper v. Commissioner, 73 T.C. 690, 696

(1980). The relevant focus is thus on the Commissioner's

knowledge, rather than on what may have been the taxpayer's

actual address in use. Brown v. Commissioner, 78 T.C. 215, 219

(1982) (citing Alta Sierra Vista, Inc. v. Commissioner, supra).

In Abeles v. Commissioner, supra, we held that a taxpayer's last

known address is the address shown on his most recently filed and

properly processed return, unless the Commissioner has been given

clear and concise notice of a different address by the taxpayer.

Petitioners contend that the notice of deficiency for 1988

and 1989 is invalid because it was not mailed to their last known

address. Petitioners claim that their last known address, as of

the date the notice was mailed, was the Oliver Street address and

that respondent should have been aware of this address because:

(1) Petitioner filed a Form W-4 with his employer, International

Tech. Services, Inc., on May 12, 1993, listing his address as the

Oliver Street address; (2) petitioners received statements and

invoices from Charles Schwab at the Oliver Street address with

respect to individual retirement accounts; and (3) petitioner

filed a Form 8822, Change of Address, dated April 10, 1993, with

the Austin service center showing petitioners' former address as

the Fort Worth address and their new address as the Oliver Street
9

address. On the Form 8822 attached to petitioners' Motion to

Submit Taxpayers' Filing Photocopy of Form 8822 Supplemental

Pleading/Evidence to Petitioners' Simultaneous Briefs filed

September 14, 1995, petitioners placed the following

acknowledgment:

Supplemental Pleading/Evidence, the owners' completed

photocopy of Form 8822 as attached (The original was

sent to IRS Office, Austin, Texas 73301 on April 10,

1993) shall be honorably submitted for legal review,

pursuant to the Rule 41 of U.S. Tax Court Rules of

Practice and Procedure for the Docket No. 3642-94.

We have hereunto signed our names this 6th day of

September 1995.

Petitioners had their signatures notarized. Petitioners' motion

was denied on September 18, 1995.

Based on the record in this case, we find that respondent

sent the notice of deficiency for 1988 and 1989 to petitioners'

last known address. Petitioners' contention that respondent

should have been aware of the Oliver Street address is untenable. 

The Fort Worth address appears to have been the one constant

factor in respondent's dealings with these peripatetic

petitioners in that petitioner's sister resided at that address

at all times relevant herein, petitioner admits receiving actual

notice of all correspondence sent there with the sole exception

of the notice of deficiency, and on numerous documents filed with

the IRS, including their most recently filed return prior to the

issuance of the notice of deficiency, petitioners listed the Fort

Worth address as their residence. Because the notice was not
10

returned, respondent had no way to know that petitioners failed

to receive the notice, if this was in fact the case.

In these circumstances, the Form W-4 did not, in and of

itself, serve to change petitioners' last known address. The

record does not establish whether or when a copy of that form was

mailed to the IRS. As we stated in Farnham v. Commissioner, T.C.

Memo. 1991-642, to require that the Commissioner use addresses

shown on such documents

would not only impose an unreasonable administrative burden

on respondent to record every address for every taxpayer,

but we would cause uncertainty by requiring respondent to

use an address which the taxpayer did not communicate to him

and which the taxpayer did not clearly tell respondent to

use. * * *

Id. (citing United States v. Zolla, 724 F.2d 808, 811 (9th Cir.

1984); see also Thiele v. Commissioner, T.C. Memo. 1994-33);

Hamilton v. Commissioner, T.C. Memo. 1992-265.

With respect to the Form 8822, Change of Address, a

purported copy of which was attached by petitioners to their

motion to submit filing of said copy, we find that this document

lacks any degree of credibility, and, therefore, give it no

weight in our decision. We find that the notice of deficiency

for taxable years 1988 and 1989 was mailed to petitioners' last

known address and, accordingly, grant respondent's motion to

dismiss for lack of jurisdiction on the ground that the petition

filed by petitioners was untimely.

An appropriate order will

be issued.