dissenting:
I must respectfully dissent, as I conclude that the majority opinion is inconsistent with the Second Circuit’s decisions in Follum v. Commissioner, 128 F.3d 118 (2nd Cir.l997)(Follum), and Tadros v. Commissioner, 763 F.2d 89 (2nd Cir.1985)(Taciros). In addition, the majority overlooks the dis-positive fact that the Sicaris used the Route 208 and Box 1370 addresses interchangeably in their court and Internal Revenue Service (IRS) filings during 1991 and 1992.
Before I get to these critical aspects of the appeal, I point out that the majority opinion also fails to address the question of the standard of review. It assumes without comment that the proper standard is de novo. Neither Folium, which the majority cites, nor Tad-ros, however, address the proper standard of review in eases involving “last known address” inquiries. Folium only states a generic standard: “The factual findings of the tax court must be upheld on appeal unless they are clearly erroneous. The tax court’s rulings of law are reviewed de novo,” 128 F.3d at- 119, without specifically addressing the appropriate standard in this case.
All other circuits to consider the question, however, have determined that a review for clear error is appropriate. Armstrong v. Commissioner, 15 F.3d 970, 973-74 (10th *931Cir.1994)(Armstrong); King v. Commissioner, 857 F.2d 676, 678-79 (9th Cir.1988); McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir.1981); Johnson v. Commissioner, 611 F.2d 1015, 1019 (5th Cir.1980). The majority does not explain why it chooses to diverge from the established norm and create an intercircuit conflict in providing less deference to the tax court’s findings of fact. I would review for clear error.
Follum and Tadros establish the basic rule that “[t]he address shown on the taxpayer’s most recently filed return is his last known address unless the taxpayer has sent a notice of change of address.” Follum, 128 F.3d at 119; see Tadros, 763 F.2d at 91. None was sent here. The only exception to this rule is if “prior to mailing the deficiency notice [the Commissioner] has become aware that the address last known to the agency may be incorrect,” in which case “[t]he Commissioner has an obligation to exercise reasonable diligence to ascertain the taxpayer’s correct address.” Follum, 128 F.3d at 119-20.
My first concern with the majority opinion is that it assumes some awareness, or “actual knowledge,” on the part of the Commissioner without a thorough discussion or clarity of standards. Unlike Follum, which required awareness that the last known address may be incorrect, the majority is satisfied with the Commissioner’s “actual knowledge” that “the Sicaris had begun to use the Box 1370 address.” These standards are not the same, as this case demonstrates.
Although the majority is correct that the Sicaris did use the Box 1370 address in bankruptcy court filings and items of correspondence with the IRS in 1991 and 1992, the majority fails to mention that the Sicaris did not use this address exclusively. In 1991 and 1992, the Sicaris also filed an amended federal tax return for 1986 and a Form 872 with the IRS, and two schedules in the bankruptcy court, all using the Route 208 address. Thus, although the IRS may have received items bearing the Box 1370 address, it is unreasonable to assume that the Sicaris’ interchangeable use of both address gave the IRS notice that “the address last known to the agency may be incorrect,” the standard required by Follum.
Thé majority supports its novel standard by advising us that the Special Procedures Unit has chosen to include the Box 1370 address in its database. The existence of the Box 1370 address in its database, however, does not save the Sicaris. The IRS searched two national databases before sending the deficiency notice; the Sicaris have made no showing that the additional search of the automated insolvency system database was “a computer feature that requires minimal time and effort to-implement,” as the majority seems to assume.
I do not disagree with the majority’s quoted statement: “While the taxpayer should bear the burden of notification of the new address, the IRS cannot simply ignore that which, it obviously knows.” United States v. Bell, 183 B.R. 650, 653 (S.D.Fla.1995). In this ease, however, it is a stretch to say that the IRS obviously knew that the Routé 208 address could be incorrect. One division of the IRS may have been “aware” that the Sicaris used both the Route 208 address and the Box 1370 address, but the Sicaris’ continued use of both addresses suggests, if anything, that both addresses were equally effective, not that the Route 208 address “may be incorrect.”
The majority attempts to paint the picture of a taxpayer caught amid pointless bureaucracy, “penalized because the tax collector neglects to tell his right hand what his left is doing.” Crum v. Commissioner, 635 F.2d 895, 900 (D.C.Cir.1980)(Crum). Despite this evocative language, the cases the majority cites in support of this point only impute knowledge to the IRS of recent addresses on tax returns. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982); Crum, 635 F.2d at 899. Indeed, the Ninth Circuit has directly held that “knowledge acquired [by the IRS] in unrelated investigations is not necessarily imputed from one division to another.” King v. Commissioner, 857 F.2d 676, 680 (9th Cir.1988). King explains:
If we required agents mailing notices of deficiency to take into account address information acquired by agents in different ' divisions in the course of unrelated investigations, the IRS could ensure that notices were validly addressed only [by] systemat*932ically recording in a central file all address information acquired in any fashion. We decline to require the IRS to do that.
Id., quoting United States v. Zolla, 724 F.2d 808, 810-11 (9th Cir.1984).
The majority further states that “[h]ad a diligent search been conducted, the Box 1370 address would have been discovered, and the IRS would have been alerted to the possibility that the Route 208 address, ‘may be incorrect.’ ” Maj. op. at 929, citing Follum, 128 F.3d at 120. Here, the majority has the case law precisely backwards: the Commissioner “has an obligation to exercise reasonable diligence to ascertain the taxpayer’s correct address if. ..she has become aware that the address last known to the agency may be incorrect.” Follum, 128 F.3d at 119-20. Either the IRS was aware that the Route 208 address might be incorrect, in which case it had a duty to exercise reasonable diligence, or it was not aware. In any case, it is not required to search all its records and files diligently in order to become aware that the last known address might be incorrect.
Even if the IRS were aware that the Route 208 address may have been incorrect, the majority further errs in concluding that the IRS failed to exercise reasonable care in determining the correct address. As the majority itself acknowledges, “[Reasonable diligence does not require that the IRS send duplicate notices to every address of which it has knowledge.” Armstrong, 15 F.3d at 974. Its knowledge was from prior returns: the Route 208 address. If we impute all IRS information to the deficiency sender, the sender would be aware of the taxpayers’ interchanging use of the Route 208 and tbe Box 1370 addresses. The majority does not come to grips with the obvious result: the notice was reasonably sent to the tax return address, an address still used by the taxpayer during all the time in question.
The opinion also unpersuasively attempts to distinguish Tadros. Tadros held that a taxpayer letter, which used a new address on its letterhead and stated that previous IRS correspondence was “lost or misplaced in the process of moving,” was insufficient to put the IRS. on notice of a change of address. Tadros, 763 F.2d at 92. The majority would primarily distinguish Tadros because there “the IRS was faced with two addresses corresponding to different locations.” The majority opinion does not explain why the IRS here should have realized that the Box 1370 address and Route 208 address were in fact addresses to the same location — on their face, they were simply different addresses. Even if the IRS were aware that the Box 1370 address was a refinement of the Route 208 address, it is not clear why this should give the IRS more responsibility to do additional searches. Tadros is directly applicable: the Sicaris did not indicate that they “had permanently moved, nor whether [the second address] was [their] new place of residence. Nor did [they] mention the old address or indicate that it was no longer to be used.” Tadros, 763 F.2d at 92.
The majority also attempts to distinguish Tadros because of the “circumstances [in Tadros] where [the IRS] had no particular reason to know at which of the two different locations the taxpayer was living.” Such circumstances, however, are even more compelling in the present case. During 1991 and 1992, the Sicaris used the Box 1370 and Route 208 addresses interchangeably, providing even less clear notice to the IRS than the taxpayer in Tadros. Even with reasonable diligence, there is no reason the IRS should have been prescient enough to recognize the Box 1370 as the “correct” address.
As this court stated in Tadros:
Although the mailing of notice to the taxpayer’s last known address may not always provide actual notice to the taxpayer,'this allowance for constructive notice protects the IRS from the overwhelming administrative burden of ascertaining each taxpayer’s exact address at any given time. To further this purpose, it becomes the responsibility of the taxpayer to communicate to the commissioner a “clear and concise notification” of any change in address.
Tadros, 763 F.2d at 91 (citations omitted). The Sicaris failed to.provide a “clear and concise notification” of a change of address; the IRS exercised diligence in sending the notice to the Route 208 address.
*933For the foregoing reasons, I would affirm the decision of the tax court.