Filed: Jun. 19, 2000
Latest Update: Mar. 03, 2020
Summary: 114 T.C. No. 30 UNITED STATES TAX COURT LUCIELLE J. OFFILER, A.K.A. LUCILLE OFFILER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 16389-99. Filed June 19, 2000. On Feb. 1, 1999, R mailed to P a Final Notice- Notice of Intent to Levy and Notice of Your Right to a Hearing, as required by sec. 6330, I.R.C. The notice pertained to P’s unpaid income tax liabilities for 1994 and 1995. Sec. 6330(a), I.R.C., requires only one such notice for the tax period for which R is attempt
Summary: 114 T.C. No. 30 UNITED STATES TAX COURT LUCIELLE J. OFFILER, A.K.A. LUCILLE OFFILER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 16389-99. Filed June 19, 2000. On Feb. 1, 1999, R mailed to P a Final Notice- Notice of Intent to Levy and Notice of Your Right to a Hearing, as required by sec. 6330, I.R.C. The notice pertained to P’s unpaid income tax liabilities for 1994 and 1995. Sec. 6330(a), I.R.C., requires only one such notice for the tax period for which R is attempti..
More
114 T.C. No. 30
UNITED STATES TAX COURT
LUCIELLE J. OFFILER, A.K.A. LUCILLE OFFILER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16389-99. Filed June 19, 2000.
On Feb. 1, 1999, R mailed to P a Final Notice-
Notice of Intent to Levy and Notice of Your Right to a
Hearing, as required by sec. 6330, I.R.C. The notice
pertained to P’s unpaid income tax liabilities for 1994
and 1995. Sec. 6330(a), I.R.C., requires only one such
notice for the tax period for which R is attempting to
collect tax. Under sec. 6330, I.R.C., P had 30 days in
which to request a hearing before the IRS Office of
Appeals. P did not request a hearing within 30 days of
Feb. 1, 1999. Had a timely request for hearing been
made, sec. 6330(c), I.R.C., provides for a hearing and
“determination” by Appeals regarding the propriety of
the proposed levy. Sec. 6330(d), I.R.C. permits an
appeal of such a determination to this Court within 30
days of the date of such determination. Because P
failed to make a timely request for hearing pursuant to
sec. 6330, I.R.C., R was not required to, and did not,
make a “determination” within the meaning of sec. 6330,
I.R.C.
- 2 -
Held: Pursuant to sec. 6330(d), I.R.C., our
jurisdiction is dependent upon the issuance of a
determination and the filing of a petition within 30
days of the issuance of such determination. Because R
did not issue a determination to P, we must dismiss
this case for lack of jurisdiction.
Lucielle J. Offiler, pro se.
Monica J. Miller, for respondent.
OPINION
RUWE, Judge: The petition in this case is based on
respondent’s alleged failure to hold a meaningful collection due
process hearing as required by section 6330.1 Respondent moved
to dismiss for lack of jurisdiction on the grounds that
petitioner did not make a timely request for a collection due
process hearing by the Internal Revenue Service, Office of
Appeals (Appeals), and therefore respondent was not required to,
and did not, hold a hearing or issue a notice of determination
which is a prerequisite to our jurisdiction under section
6330(d). At the time the petition was filed, petitioner resided
in Kissimmee, Florida.
Background
Petitioner seeks relief with respect to her 1993, 1994, and
1995 tax years. On October 13, 1995, a notice of deficiency for
1
Unless otherwise indicated, section references are to the
Internal Revenue Code applicable to the years in issue.
- 3 -
1993 was sent to petitioner’s last known address. The 90-day
period for timely filing a petition with this Court regarding
this notice of deficiency expired on January 11, 1996. A notice
of deficiency for 1994 and 1995 was mailed to petitioner’s last
known address on July 25, 1997. The 90-day period for timely
filing a petition with this Court regarding this notice of
deficiency expired on October 23, 1997. Petitioner received
these notices of deficiency but did not file timely petitions
with regard to either notice of deficiency. As a result,
respondent assessed the deficiencies determined in those
notices.2
On February 1, 1999, a Final Notice-Notice of Intent to Levy
and Notice of Your Right to a Hearing was sent to petitioner
regarding unpaid income taxes for 1994 and 1995. The notice did
not pertain to petitioner’s 1993 income tax, and petitioner has
no unpaid tax with respect to 1993. The notice contained the
following pertinent information:
FINAL NOTICE
NOTICE OF INTENT TO LEVY AND NOTICE OF
YOUR RIGHT TO A HEARING
2
To the extent that the petition in this case could possibly
be construed as a petition to the notices of deficiency, dated
Oct. 13, 1995 (for the taxable year 1993), and July 25, 1997 (for
the taxable years 1994 and 1995), the petition is obviously not
timely. Sec. 6213 generally allows taxpayers 90 days from the
date of the notice of deficiency in which to file a petition.
Our jurisdiction with respect to a notice of deficiency is
dependent upon a timely petition. See sec. 6213; Goza v.
Commissioner, 114 T.C. 176 (2000).
- 4 -
PLEASE RESPOND IMMEDIATELY
Your federal tax is still not paid. We previously
asked you to pay this, but we still haven’t received
your payment. This letter is your notice of our intent
to levy under Internal Revenue Code (IRC) Section 6331
and your right to receive Appeals consideration under
IRC Section 6330.
We may file a Notice of Federal Tax Lien at any
time to protect the government’s interest. A lien is a
public notice to your creditors that the government has
a right to your current assets, including any assets
you acquire after we file the lien.
If you don’t pay the amount you owe, make
alternative arrangements to pay, or request Appeals
consideration within 30 days from the date of this
letter, we may take your property, or rights to
property, such as real estate, automobiles, business
assets, bank accounts, wages, commissions, and other
income. We’ve enclosed Publication 594 with more
information, Publication 1660 explaining your right to
appeal, and Form 12150 to request a Collection Due
Process Hearing with Appeals.
Petitioner did not request a collection due process hearing with
Appeals within 30 days of the issuance of the above notice.
Respondent thereafter initiated enforced collection by way of
levy.
In addition to the notice regarding a taxpayer’s right to a
collection due process hearing pursuant to section 6330,
respondent also provides Form 9423, Collection Appeal Request,
for taxpayers to make requests for Appeals review of collection
action under respondent’s Collection Appeals Program (CAP). CAP
is an administrative review program not required by statute. See
5 Administration, Internal Revenue Manual (CCH), sec. 9.4, at
- 5 -
15,261. On June 3, 1999, petitioner sent a Collection Appeal
Request, Form 9423, to respondent regarding her income tax
liabilities for 1993, 1994, and 1995. In an attachment to the
form requesting a “CAP hearing”, petitioner states that she
accepts the offer of a “Collection Due Process Hearing”. The
only offer of a collection due process hearing by respondent was
contained in the notice that respondent mailed to petitioner on
February 1, 1999, regarding her unpaid 1994 and 1995 income tax
liabilities.
In response to petitioner’s Collection Appeals Request of
June 3, 1999, respondent sent a letter to petitioner dated
September 30, 1999, which denied the request. The denial of the
request pertained only to amounts due with respect to
petitioner’s income tax liabilities for 1994 and 1995. (As
previously mentioned, there is no unpaid liability for 1993.)
This letter was not, and did not purport to be, a notice of
determination pursuant to section 6330. The petition that gives
rise to this case was filed on October 29, 1999.
Discussion
Section 6331(a) provides that if any person liable to pay
any tax neglects or refuses to pay such tax within 10 days after
notice and demand for payment, the Secretary is authorized to
collect such tax by levy upon property belonging to the taxpayer.
In the Internal Revenue Service Restructuring and Reform Act of
- 6 -
1998 (RRA 1998), Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746,
Congress enacted new sections 6320 (pertaining to liens)3 and
6330 (pertaining to levies) to provide what have been described
as “due process” protections for taxpayers in tax collection
matters.4 Section 6330 generally provides that the Commissioner
cannot proceed with the collection of taxes by way of a levy on a
taxpayer's property until the taxpayer has been given notice of
and the opportunity for an administrative review of the matter
(in the form of an Appeals Office due process hearing) and if
dissatisfied, with judicial review of the administrative
determination. In pertinent part, section 6330 provides:
SEC. 6630(a) Requirement of Notice Before Levy.--
(1) In general.--No levy may be made on any
property or right to property of any person unless the
Secretary has notified such person in writing of their
right to a hearing under this section before such levy
is made. Such notice shall be required only once for
the taxable period to which the unpaid tax specified in
paragraph (3)(A) relates.
(2) Time and method for notice.--The notice
required under paragraph (1) shall be--
(A) given in person;
(B) left at the dwelling or usual place of
3
There is nothing in the record to indicate that respondent
issued a notice regarding the filing of a lien or that any
determination was ever made with respect to matters covered by
sec. 6320. The Feb. 1, 1999, notice is a notice of intent to
levy, which is governed by sec. 6330.
4
While these provisions have been described in terms of “due
process”, they are legislative enactments.
- 7 -
business of such person; or
(C) sent by certified or registered mail,
return receipt requested, to such person’s last
known address,
not less than 30 days before the day of the first levy
with respect to the amount of the unpaid tax for the
taxable period.
(3) Information included with notice.--The notice
required under paragraph (1) shall include in simple
and nontechnical terms--
(A) the amount of unpaid tax;
(B) the right of the person to request a
hearing during the 30-day period under paragraph
(2); and
(C) the proposed action by the Secretary and
the rights of the person with respect to such
action, including a brief statement which sets
forth--
(i) the provisions of this title
relating to levy and sale of property;
(ii) the procedures applicable to the
levy and sale of property under this title;
(iii) the administrative appeals
available to the taxpayer with respect to
such levy and sale and the procedures
relating to such appeals;
(iv) the alternatives available to
taxpayers which could prevent levy on
property (including installment agreements
under section 6159); and
(v) the provisions of this title and
procedures relating to redemption of property
and release of liens on property.
(b) Right to Fair Hearing.--
(1) In general.-–If the person requests a hearing
- 8 -
under subsection (a)(3)(B), such hearing shall be held
by the Internal Revenue Service Office of Appeals.
(2) One hearing per period.--A person shall be
entitled to only one hearing under this section with
respect to the taxable period to which the unpaid tax
specified in subsection (a)(3)(A) relates.
(3) Impartial officer.--The hearing under this
subsection shall be conducted by an officer or employee
who has had no prior involvement with respect to the
unpaid tax specified in subsection (a)(3)(A) before the
first hearing under this section or section 6320. A
taxpayer may waive the requirement of this paragraph.
[Emphasis added.]
Section 6330(c) specifies the matters to be considered at the
hearing and in the determination by the Appeals officer.5
5
SEC. 6330(c) provides:
(c) Matters Considered at Hearing.--In the case of
any hearing conducted under this section--
(1) Requirement of investigation.-–The appeals
officer shall at the hearing obtain verification from
the Secretary that the requirements of any applicable
law or administrative procedure have been met.
(2) Issues at hearing.--
(A) In general.-–The person may raise at the
hearing any relevant issue relating to the unpaid
tax or the proposed levy, including–-
(i) appropriate spousal defenses;
(ii) challenges to the appropriateness
of collection actions; and
(iii) offers of collection alternatives,
which may include the posting of a bond, the
substitution of other assets, an installment
agreement, or an offer-in-compromise.
(continued...)
- 9 -
Section 6330 applies to collection actions initiated more than
180 days after July 22, 1998 (January 19, 1999, and thereafter).
See RRA 1998 sec. 3401(d), 112 Stat. 750.
Section 6330(a)(1) entitles a taxpayer to only one notice
for a specific tax liability due for a taxable period. Section
6330(a) and (b) restricts a taxpayer’s statutory right to request
a collection due process hearing before the Office of Appeals to
the 30-day period following the date of the notice. See also
sec. 301.6330-1T(b) and (c), Temporary Proced. & Admin. Regs., 64
Fed. Reg. 3405 (Jan. 19, 1999). On February 1, 1999, petitioner
was notified in writing of her right to request a collection due
5
(...continued)
(B) Underlying liability.-–The person may
also raise at the hearing challenges to the
existence or amount of the underlying tax
liability for any tax period if the person did not
receive any statutory notice of deficiency for such
tax liability or did not otherwise have an
opportunity to dispute such tax liability.
(3) Basis for the determination.-–The
determination by an appeals officer under this
subsection shall take into consideration–-
(A) the verification presented under
paragraph (1);
(B) the issues raised under paragraph (2);
and
(C) whether any proposed collection action
balances the need for the efficient collection of
taxes with the legitimate concern of the person
that any collection action be no more intrusive
than necessary.
- 10 -
process hearing before Appeals under section 6330. The notice
specified that petitioner had 30 days from the February 1, 1999,
notice to request a hearing. Petitioner made no request for a
hearing within 30 days of the February 1, 1999, notice. Because
no section 6330 hearing was requested, Appeals made no
determination pursuant to section 6330(c).
Section 6330(d) provides for judicial review of an Appeals
determination. Section 6330(d) provides:
(d) Proceeding After Hearing.--
(1) Judicial review of determination.-–The person
may, within 30 days of a determination under this
section, appeal such determination–-
(A) to the Tax Court (and the Tax Court shall
have jurisdiction to hear such matter); or
(B) if the Tax Court does not have
jurisdiction of the underlying tax liability, to a
district court of the United States.
If a court determines that the appeal was to an incorrect
court, a person shall have 30 days after the court
determination to file such appeal with the correct court.
[Emphasis added.6]
The determination by Appeals is the focus of any review in this
Court under section 6330(d), and that section specifies that a
6
A taxpayer may file a petition with the Tax Court for
review of an Appeals’ determination where the underlying tax is
the type of tax over which the Court normally has jurisdiction.
See Moore v. Commissioner, 114 T.C. 171 (2000) (dismissing
petition for review of collection action on the ground that the
underlying trust fund taxes were not the type of tax over which
the Court normally has jurisdiction). The tax in question in
this case is income tax, over which we normally have
jurisdiction.
- 11 -
petition must be filed within 30 days of such a determination.
The notice of determination provided for in section 6330 is,
from a jurisdictional perspective, the equivalent of a notice of
deficiency. We have held that the absence of a valid notice of
deficiency is a basis for dismissal for lack of jurisdiction.
See Savage v. Commissioner, 112 T.C. 46, 48 (1999); Monge v.
Commissioner,
93 T.C. 22, 27 (1989). This Court's jurisdiction
under section 6330(d) is dependent on the issuance of a valid
notice of determination and a timely petition for review. It
therefore follows that the absence of an Appeals determination
under section 6330 is grounds for dismissal of a petition that
purports to be based on section 6330. Because there was no
Appeals determination for this Court to review, there is simply
no basis for our jurisdiction under section 6330(d). We shall
therefore dismiss this case for lack of jurisdiction.
To reflect the foregoing,
An appropriate order
will be entered.
