1Unless otherwise indicated, all section references are to

the Internal Revenue Code of 1986, as amended and in effect

during the relevant period, and all Rule references are to the

Tax Court Rules of Practice and Procedure. 

T.C. Memo. 1998-292

 UNITED STATES TAX COURT

WALTER J. HOYT, III AND BETTY J. HOYT, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 12536-97. Filed August 10, 1998.

Michael D. Culy, for petitioners.

Alan E. Staines, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

RUWE, Judge: This case is before the Court on respondent's

motion to dismiss for lack of jurisdiction. Respondent bases his

motion upon the ground that the petition was not filed within the

period prescribed by section 6213(a).1
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The issues for decision are: (1) Whether a notice of

deficiency was issued and properly mailed to petitioners for the

year 1987; and, if so (2) whether respondent had an obligation to

remail the notice of deficiency after it was returned. 

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. 

Petitioners are husband and wife. They filed a joint Federal

income tax return for the year 1987. Petitioners resided in

Burns, Oregon, at the time the petition was filed in this case. 

References to petitioner are to Walter J. Hoyt III.

During the relevant period, Joseph Pierce was employed by

the Internal Revenue Service (IRS) in Sacramento, California. He

was generally responsible in that district for the preparation of

notices of deficiency, and he was specifically responsible for

the preparation of the notices of deficiency here under

consideration. Mr. Pierce was also responsible for the

preparation of final notices of partnership administrative

adjustment (FPAA's). 

Mr. Pierce personally prepared two notices of deficiency

addressed to petitioners for the year 1987. Records maintained

by respondent and the U.S. Postal Service indicate that notices

of deficiency for the year 1987 were sent by certified mail to

petitioners on May 3, 1996. One of the notices was addressed to
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2According to the testimony of the postmaster for Burns,

Oregon, any envelope addressed to Burns, Oregon, bearing the name

Hoyt and HC 71 would have been delivered to the proper mailbox.

petitioners at HC 71 Lone Pine Creek Road, Burns, OR 97720; the

other was addressed to them at HC 71 Lone Pine Road, Burns, OR

97720.2 

The post office in Burns, Oregon, received the envelopes

containing the notices of deficiency. On May 9, 1996, the Postal

Service delivered notification forms to petitioners at the

address designated on the envelopes, stating that certified mail

from the IRS was being held and could be signed for and picked up

at the local post office. After 5 days, a second set of such

notices was delivered. Neither notice of deficiency was picked

up or received by petitioners. Each notice of deficiency was

returned to respondent on or about May 29, 1996. The envelopes

containing the notices were stamped "Unclaimed" by the U.S.

Postal Service. The originals and copies of the notices of

deficiency that were mailed to petitioners on May 3, 1996, were

placed in petitioners' administrative file, along with the

envelopes in which they had been mailed. 

On their Federal income tax return for the period beginning

on October 1, 1993, and ending September 30, 1994, which was

received by respondent on June 27, 1995, petitioners listed their

address as HC 71 Lone Pine Creek Road, Burns, OR 97720. They
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listed the same address on their 1994 Federal income tax return,

which was received by respondent on June 11, 1996. 

Petitioner served as the tax matters partner in numerous

partnerships. As such, he was sent numerous FPAA's, many of

which were prepared by Mr. Pierce. During the period from March

25 through May 3, 1996, respondent sent by certified mail at

least 10 FPAA's to petitioner in his capacity as a tax matters

partner. The FPAA's were addressed to petitioner at various

locations and were either claimed or unclaimed and returned to

respondent. 

OPINION

We first address petitioners' suggestion that a notice of

deficiency for the year 1987 was not issued or sent by certified

mail to them on May 3, 1996. Petitioners point out that they, or

individuals acting on their behalf, were almost on a daily basis

claiming numerous letters mailed to them by respondent during

that period. As petitioners view the situation, the fact that

neither notice of deficiency was claimed raises questions of

whether those notices were actually issued and mailed. 

Petitioners maintain that they had no reason not to claim any

notice of deficiency that might have been issued and mailed to

them in May 1996. According to petitioners, if a notice of
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deficiency had been issued and mailed, it would have been claimed

by them or someone authorized to do so on their behalf. 

 Petitioners request that we find that neither notice of

deficiency was issued and mailed merely because neither was

claimed. Petitioners' failure to claim other items sent to them

by certified mail during the same period, however, undermines

their argument on the point. Furthermore, to accept petitioners'

contention would require us to reject not only the testimony of

the IRS employee actually responsible for the preparation and

mailing of the relevant notices of deficiency, but the testimony

of the U.S. Postal Service employee as well. 

A review of the records that typically reflect when a notice

of deficiency is prepared and mailed to a taxpayer indicates that

two notices of deficiency for the year 1987 were mailed to

petitioners on May 3, 1996. We reject petitioners' implicit

suggestion that respondent and the U.S. Postal Service fabricated

records to make it appear that the notices were mailed on May 3,

1996. Accepting petitioners' contention implies some form of

conspiracy between respondent and the U.S. Postal Service a

proposition that we are unwilling to accept on the basis of the

record before us. 

We are satisfied from the evidence that on May 3, 1996, two

notices of deficiency for the year 1987 were issued and sent by

certified mail to petitioners. One of the notices of deficiency
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was mailed to an address that is identical to the address

petitioners listed on the Federal income tax return they filed

most recently before the mailing of the notices of deficiency. 

The other notice of deficiency was mailed to petitioners at a

similar address except the word "Creek" was omitted. Petitioners

never provided clear and concise notice to respondent that they

wanted to be contacted at a different address. During crossexamination, petitioner testified as follows:

Q. Okay. Have you ever sent the Internal Revenue

Service a notice or requested in any way that they not

send notices of deficiency related to your personal tax

situation? Have you ever requested they send those

notices to any address other than HC 71 Lone Pine Road,

Burns, Oregon, 97720?

A. I've never requested they send them to any address

so the answer is no. 

We are further satisfied that at least one of the notices of

deficiency was addressed to petitioners at their last known

address (according to the testimony of the U.S. Postal Service

employee, both addresses were proper). See King v. Commissioner,

857 F.2d 676 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Abeles

v. Commissioner, 91 T.C. 1019, 1035 (1988).

Petitioners argue that respondent was aware of numerous

other addresses used by petitioner as a tax matters partner in

various partnerships. According to petitioners, any of these

other addresses should be considered their last known address
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within the meaning of section 6212, and respondent's failure to

mail the notice of deficiency to any of these other addresses

renders the notice invalid. We disagree. First of all, the

argument has no application to Betty J. Hoyt. There is nothing

in the record that suggests respondent was aware of any other

address for her during the relevant period. Secondly, we find no

authority that supports petitioners' proposition that an address

used to contact a tax matters partner in connection with an FPAA

would, other than by coincidence, be considered the tax matters

partner's last known address for purposes of a notice of

deficiency. For a discussion on this point, see Lueck v.

Commissioner, T.C. Memo. 1990-334. Furthermore, contrary to

petitioners' contention, as we have pointed out previously, a

taxpayer can have only one last known address for purposes of

section 6212. Abeles v. Commissioner, supra at 1030; Cantu v.

Commissioner, T.C. Memo. 1990-354; Lueck v. Commissioner, supra.

Petitioners further argue that respondent's failure to

remail the notice of deficiency to the same or different

addresses violated respondent's duty of due diligence. 

Respondent's obligation to exercise due diligence, however,

applies to the process of ascertaining a taxpayer's last known

address. King v. Commissioner, supra at 679, 681. In this case,

as indicated, at least one of the notices of deficiency was

addressed to petitioners at their last known address. That being
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so, the fact that the notice of deficiency was not received by

petitioners is of no consequence. See King v. Commissioner,

supra; United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).

Lastly, petitioners argue that respondent's failure to

remail the notice of deficiency violated certain provisions of

the Internal Revenue Manual. In this regard, petitioners point

out in their brief that respondent is required to mail duplicate

original notices of deficiency "where there might be some doubt

as to the correctness of the last known address." Respondent

apparently did exactly that in this case. Nevertheless,

petitioners go on to argue that if "a notice of deficiency is

returned to the respondent, IRM 4462.1(5) instructs revenue

agents to remail notices of deficiency to the correct addresses." 

(Emphasis added.) The section of the manual cited by petitioners

states:

(5) If a notice of deficiency is returned to the

District Director because of an incorrect address, it

will be remailed to the correct address by certified

mail; in such cases, the date of remailing is the

effective date of the notice.

Returned mail should put the sender on notice that the letter

might have been incorrectly addressed. The above-referenced

manual provision was no doubt designed to cover those situations

and implies that respondent should recheck his records in order

to ascertain the taxpayer's correct address. In this case,
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however, the notices of deficiency were not returned to

respondent because of incorrect addresses. The notices of

deficiency were correctly addressed. They were returned because

petitioners did not claim either of them. Consequently, the

above-referenced manual provision has no application. Because

respondent did not violate his own directive, we need not

consider whether any such violation would have had any

consequences.

Under the circumstances, it would have taken little effort

on respondent's part simply to remail the notices of deficiency

to the same addresses. Nevertheless, respondent's failure to do

so does not invalidate the notices of deficiency. Neither the

statute, the relevant cases, nor respondent's internal procedures

impose any obligation upon respondent to remail a notice of

deficiency that has been properly mailed to a taxpayer but

returned unclaimed.

In this case, a notice of deficiency for the year 1987 was

issued and sent to petitioners at their last known address by

certified mail on May 3, 1996. That being so, under the

circumstances, the statutory period for filing a petition with

this Court in response to that notice of deficiency expired on

August 1, 1996. Sec. 6213(a). The petition in this case was

filed on June 16, 1997, which is well beyond the period

prescribed for doing so. Consequently, we have no jurisdiction
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in this case, and respondent's motion to dismiss for lack of

jurisdiction on that ground will be granted. Rule 13(a), (c);

Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.

Commissioner, 90 T.C. 142, 147 (1988).

It follows that petitioners' motion to restrain assessment

and collection, filed June 16, 1997, and petitioners' motion for

leave to file an amended petition, filed August 22, 1997, must be

denied, as moot. 

In order to reflect the foregoing,

An appropriate order

and order of dismissal

 for lack of jurisdiction

will be entered.