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On October 10, 1985, the Commissioner sent a statutory Notice of Deficiency by certified mail to petitioner at the following address:

Steven Hoffenberg c/o Jesse Vogel, Esq. 34 Paerdegat 10 Street Brooklyn, New York 11236

Petitioner admits that between 1982 and 1986 he resided at, received mail addressed to, and listed his address on tax returns as: Steven Hoffenberg, 34 Paerdegat, 10 Street, Brooklyn, New York 11236. Petitioner's father has lived at that address for fifteen years and has often received mail for his son there. Petitioner had listed his address as c/o Jesse Vogel, Esq., 85 Livingston Street, Brooklyn, NY 11201, on his 1981 return.

The Commissioner admits that he knew or should have known that the insertion of "c/o Jesse Vogel, Esq." in the address used for the Notice of Deficiency was a mistake. The only issue on appeal is whether the addition of those words renders an otherwise correct address incorrect.

666*666 Relying on the Postal Service Domestic Mail Manual and the testimony of Eugene C. Hagburg, a former Assistant Postmaster General called by petitioner as an expert witness, the Tax Court concluded that "[n]otwithstanding the insertion of the words `c/o Jesse Vogel, Esq.' in the address on the notice of deficiency, the postal carrier would deliver the notice of deficiency to the 10 Street address." The Tax Court found that if delivery could not be completed, the carrier would leave delivery notices at the 10 Street address. The Tax Court further found that certified mail marked "in care of" another would be delivered "to the first of the two persons named who may call for it." If not claimed within fifteen days after the second delivery notice, the Notice of Deficiency would be returned to the IRS. The Commissioner's files contain no indication that the Notice was returned by the Postal Service as undeliverable. All Postal Service records reflecting delivery of certified mail in Brooklyn were destroyed subsequent to the filing of the petition in the Tax Court.

The Tax Court rejected petitioner's claim that he never received the Notice of Deficiency and determined that there was "no convincing evidence that the notice was not delivered." Since petitioner did not file his petition within 90 days of the mailing of the Notice of Deficiency, his petition was dismissed as untimely.


905 F.2d 665 (1990)

Steven HOFFENBERG, Petitioner-Appellant,



No. 1449, Docket 90-4025. United States Court of Appeals, Second Circuit.

Argued June 7, 1990.

Decided June 11, 1990.

New York Law School location: File #1011, Box #126