Filed: Jun. 16, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-16-2008 Vivenzio v. Comm IRS Precedential or Non-Precedential: Non-Precedential Docket No. 07-3328 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Vivenzio v. Comm IRS" (2008). 2008 Decisions. Paper 1019. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1019 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-16-2008 Vivenzio v. Comm IRS Precedential or Non-Precedential: Non-Precedential Docket No. 07-3328 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Vivenzio v. Comm IRS" (2008). 2008 Decisions. Paper 1019. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1019 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-16-2008
Vivenzio v. Comm IRS
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3328
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Vivenzio v. Comm IRS" (2008). 2008 Decisions. Paper 1019.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1019
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3328
___________
LAWRENCE F. VIVENZIO,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
____________________________________
On Appeal from the United States Tax Court
(Tax Court No. 9773-06L)
Tax Court Judge: Honorable John O. Colvin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2008
Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges
(Filed: June 16, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Lawrence F. Vivenzio appeals, pro se, from the order of the United States Tax
Court dismissing his petition for lack of jurisdiction. We will affirm.
I.
In a letter dated May 5, 2006, the IRS Office of Appeals rejected the “offer in
compromise” previously submitted by Vivenzio and his wife, Gloria E. Vivenzio
(collectively “Vivenzios”), with respect to their unpaid federal income tax liabilities for
the 1999 and 2000 tax years. On May 23, 2006, the Vivenzios filed a pro se petition for
lien or levy action with the Tax Court, alleging that the Office of Appeals abused its
discretion by denying their offer. They also filed a motion to restrain assessment or
collection.
In addition to submitting an objection to the motion to restrain, the IRS moved to
dismiss the entire case for lack of jurisdiction. It explained that the Tax Court possesses
jurisdiction to review lien and levy collection actions under I.R.C. § 6320 and I.R.C. §
6330 only if the IRS issued a “notice of determination.” According to the IRS, it never
issued any notice of determination in this matter. The Tax Court subsequently ordered
the IRS to file a response to the Vivenzios’ objection to its dismissal motion and to
provide tax history documentation by September 26, 2006. The IRS’s response was filed
on September 27, 2006, and it included both additional documentation as well as a
declaration by Robert Green, a lead tax examiner. After reviewing the documentation,
Green reiterated that no notice of determination was issued by the IRS. The Vivenzios
then filed a motion to strike the IRS’s September 27, 2006 submission because of its
untimeliness.
2
The Tax Court entered an order dismissing the case for lack of jurisdiction and
denying the motion to restrain assessment or collection. According to the Tax Court, its
jurisdiction to review certain collection actions depends on the issuance of a notice of
determination, and “there is nothing in the record to suggest that any such notices have of
yet been issued to petitioners.” (App. Doc. #1: Order and Order of Dismissal for Lack of
Jurisdiction at 1.)
A timely notice of appeal was then filed with the United States Court of Appeals
for the Federal Circuit. The Federal Circuit transferred this appeal to this Court, which
has jurisdiction under I.R.C. § 7482(a)(1).
II.
Mr. Vivenzio challenges the Tax Court’s dismissal of his case for lack of
jurisdiction.1 After considering the record on appeal as well as the parties’ arguments, we
conclude that the Tax Court was correct to dismiss this matter on jurisdictional grounds.
Congress has created a framework for “collection due process” (or “CDP”)
hearings. I.R.C. § 6330 governs the process for IRS levy actions against the property of
delinquent taxpayers, and I.R.C. § 6320 applies to federal tax lien filings. Following the
CDP hearing, the IRS Office of Appeals sends the taxpayer a notice of determination
setting forth the basis for its decision and expressly addressing the relevant issues raised
1
Although not mentioned by the parties, the notice of appeal in this matter was signed
only by Lawrence Vivenzio and not by his wife, Gloria Vivenzio. Accordingly, this
Court’s docket identifies Mr. Vivenzio as the sole appellant, and we treat him as such.
3
by the taxpayer at the hearing. I.R.C. § 6330(c)(3). The taxpayer in turn “may, within 30
days of a determination under this section, appeal such determination to the Tax Court
(and the Tax Court shall have jurisdiction with respect to such matter).” I.R.C. §
6330(d)(1); see also I.R.C. § 6320(c) (providing that I.R.C. § 6330(d)(1) also applies in
lien context). The notice of determination issued by the Office of Appeals accordingly
constitutes a jurisdictional prerequisite to seeking judicial review in the Tax Court. See,
e.g., Boyd v. Comm’r, 451 F.3d 8, 10 & n.1 (1st Cir. 2006); Weber v. Comm’r,
122 T.C.
258, 263 (2004) (describing notice of determination as taxpayer’s “‘ticket’ to the Tax
Court”); Offiler v. Comm’r,
114 T.C. 492, 498 (2000).
In an apparent effort to satisfy the jurisdictional requirement, Mr. Vivenzio has
turned to various documents in the administrative record, specifically: (1) statutory
notices of intent to levy on state tax refunds; (2) a monthly statement showing a payment
due under an installment agreement; (3) account statements notifying the Vivenzios that
the IRS was offsetting federal tax overpayments against their tax liabilities and also that it
reduced their 2000 liability on account of a statutory tax credit; and (4) the Office of
Appeals letter denying their offer in compromise. Nevertheless, none of these documents
is either a statutory notice of determination or otherwise points to the existence of such an
administrative notice. The statutory framework itself distinguishes between notices of
intent to levy, which allow a taxpayer to request a CDP hearing before the Office of
Appeals, and subsequent notices of determination, which are issued by the Office of
4
Appeals after the hearing is conducted and allow the taxpayer to obtain judicial review.2
See I.R.C. §§ 6330(a), (b), (d). Mr. Vivenzio provides no real support for his allegation
that the “unilateral” installment agreement, which he allegedly never signed, somehow
demonstrates the existence of an undisclosed and undocumented notice of determination.
The Tax Court also properly found that the IRS’s offsetting does not constitute a levy.
See, e.g., Boyd, 451 F.3d at 11-13; Hankin v. United States,
891 F.2d 480, 482-83 (3d
Cir. 1989). In fact, there is no indication in the record that the IRS ever actually levied on
the Vivenzios’ property or filed a lien notice against them. Finally, the IRS’s rejection of
their offer to compromise, evidently made outside of the context of CDP proceedings,
does not rise to the level of a statutory notice of determination.
Under the circumstances, the Tax Court properly accepted the IRS’s contention,
supported by both ample documentation as well as a lead tax examiner’s declaration, that
the agency never issued a notice of determination. Furthermore, the Tax Court did not
otherwise possess jurisdiction over a challenge to the IRS’s denial of a free-standing offer
in compromise. The Tax Court generally possesses only such jurisdiction as is expressly
conferred upon it by Congress. See, e.g., I.R.C. § 7442 (specifying jurisdiction of Tax
2
In addition, the procedural protections provided by I.R.C. § 6330 do not apply when
the IRS “has served a levy on a State to collect a Federal tax liability from a State tax
refund.” I.R.C. § 6330(f)(2). The taxpayer is nevertheless provided “the opportunity for
the hearing described in this section within a reasonable period of time after the levy.” Id.
§ 6330(f). According to the lead tax examiner’s declaration, the notices of intent to levy
on the Vivenzios’ state tax refunds were never actually executed.
5
Court); Comm’r v. McCoy, 484 U.S. 3, 7 (1987) (per curiam) (“The Tax Court is a court
of limited jurisdiction and lacks general equitable powers.” (citation omitted)). It does
have the authority to consider the IRS’s rejection of a taxpayer’s proposed collection
alternatives, such as an offer in compromise, as part of its review of an underlying notice
of determination. See, e.g., I.R.C. §§ 6330(c)(2)(A)(iii), (c)(3)(B), (d)(1); Fifty Below
Sales & Mktg., Inc. v. United States,
497 F.3d 828, 830 (8th Cir. 2007); Olsen v. United
States,
414 F.3d 144, 150 (1st Cir. 2005). However, “the handling and processing of an
offer in compromise not submitted in conjunction with a CDP hearing is not subject to
judicial review at all.”
Olsen, 414 F.3d at 156 (emphasis added) (citation omitted).
Because the offer made by the Vivenzios was “not submitted in conjunction with a CDP
hearing,” the Tax Court lacked jurisdiction to review the denial of this offer.3
Finally, we must reject Mr. Vivenzio’s unsupported constitutional claims. By
holding that it lacked jurisdiction because of the absence of a notice of determination, the
Tax Court essentially determined that the current case was premature. If the IRS wishes
in the future to proceed with a levy or lien collection action, Mr. Vivenzio will apparently
have the opportunity to request administrative and possibly judicial review of the
3
Mr. Vivenzio appears to argue that the Eighth Circuit’s decision in Speltz v.
Commissioner, 454 F.3d 782 (8th Cir. 2006), recognized “an alternative basis” for the
Tax Court’s jurisdiction over the denial of the offer in compromise. (Appellant’s Reply
Br. at 3.) However, unlike in the present proceedings, the taxpayers in Speltz filed their
Tax Court petition after the IRS Office of Appeals conducted a CDP hearing and issued a
notice of determination sustaining the underlying lien filing and rejecting the taxpayers’
offer in compromise.
Id. at 783.
6
collection action in accord with the applicable requirements for seeking relief from either
the IRS Office of Appeals or the Tax Court. In the end, the Tax Court’s jurisdictional
ruling in this case did not “deprive taxpayers of a remedy against arbitrary administrative
action.” 4 Robinson v. United States, 920 F.2d 1157, 1161 (3d Cir. 1990) (allowing quiet
title action challenging procedural irregularity of tax lien to proceed in district court
where failure to send notice of deficiency denied taxpayers opportunity to obtain review
in Tax Court).
III.
For the foregoing reasons, we conclude that the Tax Court properly dismissed the
action for lack of jurisdiction. Accordingly, we will affirm. We also deny Mr.
Vivenzio’s request for oral argument.
4
We likewise must reject Mr. Vivenzio’s apparent assertions that the Tax Court
violated his due process and equal protection rights by allegedly failing to order
production of the alleged installment agreement and by not granting the motion to strike
the IRS’s September 27, 2006 submission as untimely. It appears that the Tax Court
properly determined that the discovery motion was premature given the preliminary stage
of the proceedings and its manifest lack of subject-matter jurisdiction. Furthermore, the
IRS did produce documentation in the Tax Court proceedings, and it addressed the
installment agreement and its supposed effects on jurisdiction in some detail. It therefore
cannot be said that Mr. Vivenzio suffered substantial prejudice from the Tax Court’s
apparent refusal to consider a motion to compel. Similarly, although the IRS’s response
was in fact filed one day after the Tax Court’s deadline, Mr. Vivenzio fails to indicate
how this minimal delay resulted in any prejudice to him.
7
