T.C. Memo. 2008-60



                        UNITED STATES TAX COURT



                     DAN PICKELL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



       Docket No. 14400-07.              Filed March 11, 2008.




       Dan Pickell, pro se.

       Kaelyn Romey, for respondent.



                           MEMORANDUM OPINION


       HAINES, Judge:   This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction under

Rule 53 and petitioner’s motion to restrain collection under Rule

55.1    Respondent moves to dismiss on the ground that no notice of


       1
        Unless otherwise indicated, section references are to the
                                                     (continued...)
                                 -2-

determination was issued to petitioner for the years at issue.

Petitioner contends that no final notice of intent to levy was

sent to him, and therefore respondent’s levy is improper.

                             Background

     At the time the petition was filed, petitioner resided in

California.

     On March 13, 2006, respondent sent petitioner by certified

mail a Final Notice-Notice of Intent to Levy and Notice of Your

Right to a Hearing for the years 2000 through 2003.      The notice

of intent to levy was returned to respondent marked

refused/unclaimed on April 17, 2006.      On February 2, 2007,

respondent sent petitioner by regular mail a Warning of Intent to

Levy.    On May 8, 2007, respondent levied upon petitioner’s

accounts.

     On June 25, 2007, petitioner submitted his petition, and the

Court filed his motion to restrain collection.      Respondent

objected to petitioner’s motion on the ground that the Court

lacked jurisdiction.    On August 13, 2007, the Court filed

respondent’s motion to dismiss for lack of jurisdiction.      A

hearing on the motions was held on October 15, 2007, in San

Francisco, California.


     1
      (...continued)
Internal Revenue Code as amended. Rule references are to the Tax
Court Rules of Practice and Procedure. Amounts are rounded to
the nearest dollar.
                                 -3-

                             Discussion

     The Tax Court is a court of limited jurisdiction, and we may

exercise that jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 

, 529 (1985).       The

Court’s jurisdiction under sections 6320 and 6330 depends upon

the issuance of a valid notice of determination and the filing of

a timely petition for review.    See Orum v. Commissioner, 

(2004), affd. 

(7th Cir. 2005); Sarrell v.

Commissioner, 

, 125 (2001); Moorhous v. Commissioner,

, 269 (2001); Offiler v. Commissioner, 

,

498 (2000); see also Rule 330(b).      Thus, in the absence of a

notice of determination, this Court lacks jurisdiction.

Respondent did not issue a notice of determination in respect of

petitioner’s outstanding tax liabilities for 2000 through 2003.

A necessary predicate for the issuance of a notice of

determination is the issuance of a final notice of intent to levy

sent to the taxpayer at the taxpayer’s last known address.      See

sec. 6330(a)(2)(C).    Thus, while the Court does not have

jurisdiction to hear petitioner’s case, we will decide the proper

basis for dismissal.    See Kennedy v. Commissioner, 

,

263 (2001); Kennedy v. Commissioner, T.C. Memo. 2008-33; Buffano

v. Commissioner, T.C. Memo. 2007-32.

     Respondent argues that the Court lacks jurisdiction because

a notice of determination under section 6330 was not issued to
                                 -4-

petitioner; dismissal on this ground would allow respondent to

levy upon petitioner’s property to satisfy his outstanding

Federal tax liabilities.    On the other hand, petitioner argues

that he never received a valid final notice of intent to levy;

dismissal on that ground would invalidate the notice of levy.

See Kennedy v. Commissioner, 

; Kennedy v.

Commissioner, T.C. Memo. 2008-33; Buffano v. 

.

     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 way of a levy upon the person’s property.

Section 6331(d) provides that, at least 30 days before proceeding

with enforced collection by way of a levy on a person’s property,

the Secretary is obliged to provide the person with a final

notice of intent to levy, including notice of the administrative

appeals available.   See sec. 6330; Davis v. Commissioner, 

, 37 (2000); Goza v. Commissioner, 

, 179

(2000).    The notice of intent to levy must be given in person,

left at the person’s dwelling or usual place of business, or sent

by certified or registered mail to the person’s last known

address.    Secs. 6330(a)(2), 6331(d)(2); secs. 301.6330-1(a)(1),

301.6331-2(a)(1), Proced. & Admin. Regs.

     “There is a strong presumption in the law that a properly

addressed letter will be delivered, or offered for delivery, to
                                -5-

the addressee.”   Zenco Engg. Corp. v. Commissioner, 

,

323 (1980), affd. without published opinion 

(7th

Cir. 1981).   Further, it is clear that in general, and in the

absence of evidence to the contrary, compliance with certified

mail procedures raises a presumption of official regularity in

delivery and receipt with respect to notices sent by the

Commissioner.   See United States v. Zolla, 

, 810 (9th

Cir. 1984); United States v. Ahrens, 

, 784-785 (8th

Cir. 1976); Clough v. Commissioner, 

, 187-188 (2002).

     Respondent’s records show that petitioner was sent a final

notice of intent to levy by certified mail to an address that

petitioner admits has been his address for 10 years.   Petitioner

claims that he did not know of the attempted delivery, but he has

offered no proof to support his claim.   Petitioner argues that

his situation is akin to that of Buffano v. 

,

where the Court dismissed the case on the ground that the

taxpayer was not issued a valid collection notice because the

Commissioner did not send the collection notice to the taxpayer’s

last known address.   See also Kennedy v. Commissioner, T.C. Memo.

2008-33.   In this case, the notice of intent to levy was sent to

petitioner’s last known address.

     Therefore, the Court finds that respondent issued petitioner

a valid notice of intent to levy, but petitioner did not receive

it either because of his deliberate refusal to accept the letter
                                  -6-

or his failure for other reason to claim his mail.       Because

petitioner failed to request a hearing under section 6330,

respondent did not issue a notice of determination, and we are

without jurisdiction to hear this claim under section 6330(d).

Accordingly, we will grant respondent’s motion to dismiss for

lack of jurisdiction and deny petitioner’s motion to restrain

collection.

     To reflect the foregoing,

                                        An appropriate order and order

                                 of dismissal for lack of

                                 jurisdiction will be entered.