                        T.C. Memo. 2005-279



                      UNITED STATES TAX COURT



               PATRICIA ANN BLOCKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3129-04L.               Filed December 1, 2005.



     Donald R. Williams, for petitioner.

     Daniel N. Price, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   This proceeding was commenced in response to

a Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.   The issue for decision is whether

respondent correctly assessed petitioner’s underlying tax

liability, which, in turn, depends on whether the statutory
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notice for 1989 not received by petitioner was sent to

petitioner’s last known address.

                          FINDINGS OF FACT

     Petitioner resided in San Marcos, Texas, at the time that

she filed her petition in this case.    She was divorced from her

former husband in 1988.   Petitioner married her present husband,

William P. Blocker (Blocker), in 1990.

     Petitioner and Blocker did not file tax returns for 1990,

1991, or 1992 until December 17, 1998.    As a result of their

failure to file timely income tax returns and various employment

tax-related matters, in or about 2000, petitioner and Blocker

attempted to resolve their outstanding tax liabilities by an

offer in compromise.   In those efforts, petitioner and Blocker

were aided by an enrolled agent, Kathryn Womack (Womack).    Womack

was informed that the offer in compromise would not be considered

unless and until petitioner and Blocker filed delinquent tax

returns.   Womack prepared and submitted for petitioner a 1989 tax

return on which petitioner’s total tax was reported as $3,796.

     The Internal Revenue Service (IRS) did not receive a 1989

Federal income tax return from petitioner prior to receipt of the

return prepared by Womack in 2000.     On August 19, 1993, the IRS

sent to petitioner a letter stating that the IRS had no record of

receiving a return for 1989; that letter was sent to an address

on Bering Drive in Houston, Texas.     On November 24, 1993, the IRS
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sent to petitioner a notice of deficiency determining a

deficiency in tax of $3,412 for 1989 and additions to tax under

sections 6651(a) and 6654(a); that letter was sent to an address

on Roydon Drive in Houston, Texas.      The notice of deficiency was

returned to the IRS marked:    “MOVED, LEFT NO ADDRESS”.   The

deficiency determination was based on third-party reporting of

wages earned by petitioner in 1989.     The notice of deficiency set

forth:    “Total income reported by payers (see income sources):

$23,374.00".    The amounts included in the notice were reported to

the IRS on Forms W-2, Wage and Tax Statement, that reflected an

address for petitioner on Jeanetta in Houston, Texas.

     When petitioner failed to respond to the November 24, 1993,

notice of deficiency, on April 18, 1994, the IRS assessed the

amounts determined in the notice and accrued interest.     When the

IRS received petitioner’s 1989 Form 1040, U.S. Individual Income

Tax Return, in 2000, the IRS assessed an additional amount of

$384, the difference between the amount determined in 1993 and

the amount of tax reported on petitioner’s return filed in 2000.

     On June 16, 2003, the IRS sent to petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320.    The notice set forth petitioner’s unpaid liability for

1989 as $6,675.75, which included the two assessments of tax and

accrued additions to tax, penalties, and interest.     Petitioner

submitted a Request for a Collection Due Process Hearing.     On
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January 22, 2004, a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330, sustaining the filing

of the notice of Federal tax lien, was sent to petitioner.     That

notice of determination is the basis of the current action.

     On or about February 2, 2004, petitioner submitted to the

IRS an amended 1989 return.   In the amended return, petitioner

claimed a business loss on Schedule C, Profit or Loss From

Business, and claimed an exemption for a dependent not previously

claimed.   As a result, petitioner contended that her total tax

liability for 1989 was $1,939.    Petitioner never presented

substantiation of the deductions claimed on the amended return.

The claimed dependent filed her own return for 1989 and claimed

an exemption for herself.

                              OPINION

     The record in this case is cluttered with irrelevant

arguments and factual assertions by both parties that are not

supported by evidence in the record.     It is undisputed, however,

that petitioner did not receive the statutory notice sent in 1993

with respect to her Federal income tax liability for 1989.

Therefore, we examine de novo petitioner’s underlying liability

for that year as determined in the undelivered statutory notice.

See sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604

(2000).
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     Petitioner contends that she filed a timely Federal income

tax return for 1989 showing an address on Jeanetta in Houston,

Texas, where she had lived “since 1988".     Records of the IRS

consistently reflect that no return was filed for 1989 until the

return filed by petitioner in 2000.      Petitioner’s assertion with

respect to timely filing is uncorroborated.     In 1990, petitioner

married Blocker, and they failed to file returns for several

years thereafter.   On this record, we cannot accept petitioner’s

testimony that she filed a timely return for 1989.     In addition,

we can give no credence to the deductions that petitioner claimed

on her amended return for 1989 filed in 2004, because she has

presented no evidence to substantiate those deductions.

     Whether petitioner’s underlying liability exists, therefore,

depends on whether the amounts assessed in 1994 were validly

assessed, which depends in turn on whether the statutory notice

of deficiency sent November 24, 1993, was sent to petitioner’s

last known address.    IRS records reflect the Roydon Drive address

from 1989 through the delinquent filing of returns by petitioner

and Blocker in 1998.   Petitioner has presented no evidence that

she gave clear and concise notice of a change of address to the

IRS at any time prior to 1998.

     Petitioner does not deny that she lived at the Roydon Drive

address in Houston at some time.    Her testimony is vague about

where she lived at any time and is uncorroborated by any records.
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The only thing clear is that she moved many times.      She contends

that she lived with her former husband for a few months in 1988,

that she lived on Westerland Avenue at the time of her divorce,

and that she lived at the Jeanetta address in Houston commencing

in 1988.    Respondent contends, without persuasive evidence in the

record, that petitioner rented the Roydon Drive address beginning

in 1989 and then provided that address to the IRS.      Given

petitioner’s failure to communicate with the IRS, it is more

likely that the Royden Drive address was shown on a return filed

for 1988.    In any event, prior to 1993, the Roydon Drive address

was the address for petitioner reflected in IRS records, which

were not changed again until 1998.

       Petitioner also claims that the statutory notice should have

been mailed to a Bering Drive address, which was used on a letter

sent to petitioner in August 1993.      There is no explanation in

the record as to how that address would have become known to the

IRS.    The Bering Drive address was not the address shown on any

return filed by petitioner, and there is no evidence as to

whether or when she lived at that address.      The Bering Drive

address thus cannot be considered her last known address.

       Petitioner contends that the IRS should have mailed the

notice of deficiency or remailed the notice of deficiency to the

Jeanetta address shown on the Forms W-2 for 1989 sent to the IRS

by third-party payers of the income.      Respondent argues that
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Forms W-2 and other third-party payer reports do not constitute

clear and concise notification of a change of address for a

taxpayer.

     Section 6212(b)(1) provides that a notice of deficiency, in

respect of an income tax, "shall be sufficient" if it is "mailed

to the taxpayer at his last known address".      Generally, the

Commissioner has no duty to effectuate delivery of the notice

after it is mailed.    Monge v. Commissioner, 93 T.C. 22, 33

(1989).   We have defined "last known address" as the address to

which, in light of all the surrounding facts and circumstances,

the Commissioner reasonably believed the taxpayer wished the

notice of deficiency to be sent.     Weinroth v. Commissioner, 74

T.C. 430, 435 (1980); see also Ward v. Commissioner, 907 F.2d

517, 521 (5th Cir. 1990), revg. 92 T.C. 949 (1989); Snow v.

Commissioner, T.C. Memo. 1996-457.       Generally, a taxpayer's last

known address is the address shown on his or her most recently

filed and properly processed return, absent clear and concise

notice of a different address.     Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988).    The notice of deficiency is deemed to have

been mailed to petitioner at her last known address unless:

(1) She provided respondent with clear and concise notice of a

change of address; or (2) prior to the mailing of the notice of

deficiency, respondent knew of a change in petitioner's address

and did not exercise due diligence in ascertaining petitioner's
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correct address.   See Abeles v. Commissioner, supra; Keeton v.

Commissioner, 74 T.C. 377, 382 (1980); Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. 367, 374 (1974), affd. without published

opinion 538 F.2d 334 (9th Cir. 1976); Perkins v. Commissioner,

T.C. Memo. 2002-174.

      Petitioner has failed to show that she provided clear and

concise notification of a change from the Roydon Drive address.

As to petitioner’s contention that respondent should have used

the address listed on the Forms W-2 for 1989, we stated in

Farnham v. Commissioner, T.C. Memo. 1991-642, that a requirement

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 * * * 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.   See also Stroupe v. Commissioner, T.C. Memo. 1998-380;

Thiele v. Commissioner, T.C. Memo. 1994-33.

      Another question in this case is whether the IRS should have

exercised diligence and located an additional address for

petitioner after the statutory notice of deficiency was returned

undelivered.   Whether the Commissioner has exercised reasonable

care and diligence is a question of fact.     Frieling v.

Commissioner, 81 T.C. 42, 49 (1983).   The relevant facts are

those known before the notice of deficiency was mailed, such as

return of letters sent to the taxpayer on earlier dates.    See
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Mulder v. Commissioner, 855 F.2d 208 (5th Cir. 1988), revg. T.C.

Memo. 1987-363.   In Pomeroy v. United States, 864 F.2d 1191, 1195

(5th Cir. 1989), the Court of Appeals for the Fifth Circuit

stated:   "The relevant statutes simply require that the

deficiency notice be mailed to the taxpayer's last known address,

not that it be received."   The Code does not require remailing

the notice, and nothing in the statute suggests that respondent

would be obligated to take additional steps to effectuate

delivery if the notice is returned.        Monge v. Commissioner, supra

at 33-34.   A notice that is returned undelivered is still valid

as long as it was sent to the last known address.          Stroupe v.

Commissioner, supra.   Thus, respondent was not required to

investigate further when the notice of deficiency was returned

undelivered.   See Monge v. Commissioner, supra at 33-34; Snow v.

Commissioner, supra.

     We have considered the other arguments of the parties, and

they are irrelevant and/or lack merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
