UNITED STATES TAX COURT



             ISAIAH BONGAM, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 20104-14L.                          Filed February 11, 2016.



       In an effort to collect P’s unpaid liabilities, R issued P a Notice
of Federal Tax Lien Filing and Your Right to a Hearing (NFTL No-
tice). The NFTL Notice was sent by certified mail to P at an address
in Bowie, Maryland (Maryland address). At all relevant times, the
Maryland address was P’s last known address. P timely requested a
collection due process (CDP) hearing, showing as his address an
address in Washington, D.C. (Washington address).

       The CDP hearing was held, and R determined that P was not
entitled to relief. R then sent P by certified mail a Notice of Determi-
nation (Notice) denying relief. The Notice was mailed to P at the
Washington address and was returned to R as undeliverable. Without
changing the date listed on the Notice, R’s office remailed it to P by
regular mail to the Maryland address. P received the Notice and peti-
tioned this Court within 30 days of the date on which he actually re-
ceived the Notice and also of the date on which the Notice was re-
mailed to him.
                                         -2-

              “[T]his Court’s jurisdiction under [I.R.C.] sections 6320 and
      6330 depends on the issuance of a valid notice of determination and
      the filing of a timely petition for review.” Weber v. Commissioner,
      

, 261 (2004). R contends that we lack jurisdiction
      because the Notice originally sent to P was not mailed to his “last
      known address” and was therefore invalid.

            1. Held: The Notice as originally mailed to P at his Washing-
      ton address, which was returned to R as undeliverable, was invalid
      and did not start the 30-day period for petitioning this Court.

            2. Held, further, the Notice as subsequently remailed to P at his
      Maryland address was valid because it was actually received by P
      without prejudicial delay, that is, in time to file a timely petition in
      this Court.

             3. Held, further, even though the date listed on the Notice was
      earlier than the date of mailing, the critical date for the running of the
      30-day period is not the date listed on the Notice, but the subsequent
      date on which the notice was mailed to or actually received by P.



      Isaiah Bongam, pro se.

      John D. Ellis, for respondent.



                                       OPINION


      LAUBER, Judge: On September 16, 2015, the Internal Revenue Service

(IRS or respondent) moved to dismiss this case for lack of jurisdiction. The case

was called and recalled from the calendar at the Court’s trial session in Washing-
                                         -3-

ton, D.C., on November 2, 2015. Both parties appeared, and an evidentiary hear-

ing was held. In light of the evidence introduced at that hearing, we will deny the

motion to dismiss.

                                     Background

      This collection due process (CDP) case involves petitioner’s liability for

civil penalties under section 6672 for various calendar quarters from 2005 through

2009.1 The IRS assessed this liability, totaling $772,282, on April 9, 2009. In an

effort to collect this unpaid liability, the IRS issued petitioner, on October 1, 2013,

a Notice of Federal Tax Lien Filing and Your Right to a Hearing (NFTL Notice).

The NFTL Notice was sent by certified mail to petitioner at an address in Bowie,

Maryland (Maryland address). At all relevant times, the Maryland address was

petitioner’s last known address as shown in IRS records. Respondent concedes

that the Maryland address was petitioner’s last known address, and petitioner in

fact received the NFTL Notice at that address.

      On October 9, 2013, petitioner timely filed Form 12153, Request for a

Collection Due Process or Equivalent Hearing. The Form 12153 showed as

petitioner’s address an address in Washington, D.C. (Washington address).


      1
        All statutory references are to the Internal Revenue Code (Code) in effect at
all relevant times. We round all monetary amounts to the nearest dollar.
                                         -4-

Petitioner testified that this house belonged to his daughter and that he and other

relatives also resided there. At no time did petitioner file a change-of-address

form with the IRS or indicate to the IRS that he wished to have his last known

address changed to the Washington address. See Rev. Proc. 2010-16, 2010-19

I.R.B. 664 (listing requirements for taxpayer to change his last known address).

Petitioner testified that he generally used the Maryland address for his tax filings.

      The CDP hearing was held, and the settlement officer determined that

petitioner was not entitled to relief. On April 30, 2014, the IRS sent petitioner, by

certified mail, a Notice of Determination Concerning Collection Action(s) (Notice

of Determination or Notice) denying relief. That letter was mailed to petitioner at

the Washington address. On May 3, 2014, the U.S. Postal Service attempted to

deliver the letter to petitioner’s Washington address but was unable to do so. On

June 6, 2014, the letter was returned as undeliverable to the IRS office in Mem-

phis, Tennessee (IRS Memphis office).

      On August 4, 2014, someone from the IRS Memphis office remailed the

April 30, 2014, Notice of Determination, including the envelope in which it had

originally been posted, to petitioner at his Maryland address. This document was

sent to petitioner by regular mail, not by certified or registered mail. Petitioner

received the Notice of Determination a few days later and, on August 22, 2014,
                                        -5-

mailed to the Tax Court a petition seeking review of the Notice. This petition was

filed within 30 days of the date on which petitioner actually received the Notice

and of August 4, 2014, the date on which the Notice was remailed to him.

                                     Discussion

      This Court always has jurisdiction to determine whether it has jurisdiction.

Cooper v. Commissioner, 

, 73 (2010). The Tax Court is a court of

limited jurisdiction, and we must ascertain whether the case before us is one that

Congress has authorized us to consider. See sec. 7442; Estate of Young v. Com-

missioner, 

, 881 (1983). In determining whether we have jurisdiction

over a given matter, this Court and the Courts of Appeals have given our juris-

dictional provisions a broad, practical construction rather than a narrow, technical

one. Lewy v. Commissioner, 

, 781 (1977). When a statutory provi-

sion is capable of two interpretations, “we are inclined to adopt a construction

which will permit us to retain jurisdiction without doing violence to the statutory

language.” Traxler v. Commissioner, 

, 100 (1973).

      Sections 6320 (pertaining to Federal tax liens) and 6330 (pertaining to lev-

ies) establish procedures for administrative and judicial review of certain collec-

tion actions. The Commissioner must provide the taxpayer with written notice of

lien filing or the proposed levy action and inform the taxpayer of his right to
                                         -6-

challenge it at an administrative hearing. See Davis v. Commissioner, 

, 37 (2000). The Code requires that such written notice be given in one of three

specified ways. It must be “given in person,” be “left at the [taxpayer’s] dwelling

or usual place of business,” or be “sent by certified or registered mail * * * [to the

taxpayer’s] last known address.” Secs. 6320(a)(2)(A)-(C), 6330(a)(2)(A)-(C).

      After receiving the written notice specified above, the taxpayer may request

a CDP hearing under section 6320(b) or 6330(b). If dissatisfied with the outcome

of that hearing the taxpayer “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).” See sec. 6330(d)(1) (cross-referenced in

section 6320(c)). We have repeatedly held “that this Court’s jurisdiction under

sections 6320 and 6330 depends on the issuance of a valid notice of determination

and the filing of a timely petition for review.” Weber v. Commissioner, 

, 261 (2004); see Sarrell v. Commissioner, 

, 125 (2001).

      In this case, petitioner actually received the Notice of Determination as re-

mailed to him on August 4, 2014, and within 30 days he filed a timely petition for

review. Respondent nevertheless contends that we lack jurisdiction because the

Notice originally sent to petitioner on April 30, 2014, was not mailed to his “last
                                         -7-

known address.” Respondent argues that the Notice was therefore invalid and

cannot serve as a basis for jurisdiction in this Court.

      Section 6330(d) does not specify the means by which the IRS shall notify

the taxpayer of a “determination” made after a CDP hearing. Indeed, section

6330(d) does not explicitly require that the taxpayer be notified at all; it simply

states that there must be a “determination” and permits the taxpayer to appeal to

this Court within 30 days after the “determination” has been made. See Lunsford

v. Commissioner, 

, 161 (2001) (interpreting the statute to require a

“determination” to be in the form of a written notice). In Weber, 

,

we reasoned that “the method that Congress specifically authorized for sending

notices of deficiency * * * certainly should suffice” in the CDP context. We ac-

cordingly held in Weber that “a notice of determination issued pursuant to sections

6320 and/or 6330 is sufficient if such notice is sent by certified or registered mail

to a taxpayer at the taxpayer’s last known address.”

see Sebastian

v. Commissioner, T.C. Memo. 2007-138, 

, 1304. We had

no occasion in Weber to decide whether notice to the taxpayer would be effective
                                          -8-

if delivered in some other way. We address that question now, again by analogy

to our deficiency jurisdiction.2

          Section 6212(b)(1) provides that a notice of deficiency “shall be suffici-

ent” if it is “mailed to the taxpayer at his last known address.” The language of

this section is clearly permissive: “Congress did not create a mandatory address to

which a notice of deficiency must be mailed, but rather provided the Commission-

er a ‘safe harbor’ address to which he could send the notice.” McKay v. Commis-

sioner, 

, 1068 (1987), aff’d, 

(9th Cir. 1989). By using

this safe harbor, the IRS can ensure that a notice of deficiency will be valid regard-

less of whether the taxpayer actually receives it. The “last known address” rule

thus comes into play when the taxpayer does not receive the notice of deficiency

or receives it with insufficient time to file a timely petition for redetermination.

      However, a notice of deficiency need not be sent to the taxpayer’s last

known address in order to be valid. Rather, the notice will be valid if it is actually

received by the taxpayer “without prejudicial delay,” that is, generally in time to

      2
        The Treasury Regulations appear to specify notice by certified or registered
mail as the preferred form of notice. See sec. 301.6330-1(e)(3), Q&A-E8, Proced.
& Admin. Regs. (“Taxpayers will be sent a dated Notice of Determination by cer-
tified or registered mail.”). Respondent does not argue that these regulations limit
our jurisdiction. See Harris v. Commissioner, 

, 1217 (1959) (“[O]ne
litigant cannot write into the law limitations on the jurisdiction of the Court as to
the other party by his own regulations.”).
                                         -9-

file a timely petition in this Court. McKay, 

; Mulvania v. Commis-

sioner, 

, 68 (1983); Looper v. Commissioner, 

(1980).

Actual notice from the IRS to a taxpayer, whether transmitted by certified mail,

ordinary mail, or hand delivery, will suffice. See Tenzer v. Commissioner, 

(9th Cir. 1960) (personal delivery of notice of deficiency); Boren v. Rid-

dell, 

(9th Cir. 1957) (mailing of notice of deficiency by ordinary

mail).

         Section 6330(d) does not require that the Commissioner send a notice of de-

termination by certified mail to the taxpayer’s last known address or that he deli-

ver it in any particular way. In this respect, section 6330(d)(1) stands in sharp

contrast to sections 6320(a) and 6330(a), which specify three permissible modes of

notifying the taxpayer of liens and levies, and other Code provisions that mandate

mailing to the taxpayer’s “last known address. ” See secs. 6015(e)(1)(A)(i)(I),

6110(f)(3)(B), 6331(d)(2), 7603(b)(1). If Congress had intended that a similar re-

striction would govern our review of CDP cases, Congress could easily have so

specified. Instead, section 6330(d)(1) provides that this Court shall have jurisdic-

tion if a taxpayer files a petition “within 30 days of a determination.” This lan-

guage does not limit the manner in which the IRS may notify the taxpayer that a

determination has been made.
                                         - 10 -

      We agree with respondent that the Notice of Determination, as originally

mailed to petitioner on April 30, 2014, was invalid. That document was not sent

to petitioner’s “last known address” and it was not actually received by him; ra-

ther, it was returned to the IRS Memphis office as undeliverable. See Looper, 

(holding notice of transferee liability invalid when it was not mailed to

taxpayer’s last known address and taxpayer was unable to file a timely petition

despite the exercise of due diligence). The April 30, 2014, mailing therefore did

not start the clock for petitioning this Court.

      However, the IRS Memphis Office remailed the Notice of Determination to

petitioner on August 4, 2014, and he actually received that Notice in time to file a

timely petition. We find that the Notice of Determination, as remailed on August

4, 2014, was properly mailed and valid and that petitioner’s 30-day period for

petitioning this Court did not start to run before that date. Cf. Terrell v. Commis-

sioner, 

(5th Cir. 2010) (holding that 90-day window for seeking

review of IRS innocent spouse determination did not begin to run when notice was

sent to incorrect address but began to run when notice was remailed to taxpayer’s

correct address); Kasper v. Commissioner, 

, 42 (2011) (“Requiring the
                                          - 11 -

Whistleblower Office to provide the whistleblower with notice of the determi-

nation is the logical first step to establish the starting date for the period of

appeal.”).

      Our conclusion is unaffected by the fact that the date appearing on the No-

tice of Determination does not match the date on which the Notice was success-

fully mailed to petitioner. As we have held in analogous situations, when the date

appearing on a deficiency notice is earlier than the date of mailing, “[t]he critical

date is the date the deficiency notice was ‘mailed.’” August v. Commissioner, 

, 1536 (1970).3 After the Notice of Determination was returned as unde-

liverable, the IRS Memphis Office could have crossed out the original date on the

letter and replaced it with the current date, or it could have retyped the Notice

using the remailing date. The IRS’ failure to do one of these things does not




      3
        Compare Lundy v. Commissioner, T.C. Memo. 1997-14, 

, 1695 (the date of mailing is generally “the date that the Commissioner actu-
ally places the notice of deficiency in the mail”), with Loyd v. Commissioner, T.C.
Memo. 1984-172, 

, 1453-1454 (date of mailing deemed to
be the date appearing on the notice of deficiency when it postdates the date of
actual mailing). Cf. sec. 301.6330-1(e)(3), Q&A-E10, Proced. & Admin. Regs.
(“The 30-day period within which the taxpayer is permitted to seek judicial review
of Appeals’ determination commences the day after the date of the Notice of
Determination.”).
                                        - 12 -

deprive us of jurisdiction, so long as the Notice of Determination was actually

received by petitioner in time to seek our review.4

      We see no reason why the above-described rules governing our deficiency

jurisdiction should not also govern our jurisdiction in CDP cases, thus allowing

taxpayers the greatest opportunity, consistently with the statutory language, to

obtain jurisdiction in our Court. We accordingly hold that the 30-day window

prescribed by section 6330(d)(1) is calculated by reference to the Notice of Deter-

mination that was successfully sent to petitioner’s Maryland address by regular

mail on August 4, 2014. Because petitioner actually received that Notice and filed

his petition within 30 days, we have jurisdiction to hear this case. See, e.g., Pugs-

ley v. Commissioner, 

(11th Cir. 1985) (even though notice of defi-

ciency was not sent to last known address, taxpayer was not prejudiced because he

received actual notice of deficiency in ample time to petition this Court); Clod-

felter v. Commissioner, 

, 757 (9th Cir. 1975) (notice of deficiency

      4
        Because petitioner filed his petition within 30 days of the remailing date
and also of the date on which he actually received the Notice of Determination, we
need not decide which date triggered the start of the 30-day filing period. Com-
pare Powell v. Commissioner, 

, 57 (4th Cir. 1992) (“When notice of a
deficiency is not sent to a taxpayer’s last known address, subsequent actual notice
of the deficiency will commence the running of the ninety-day period.”), and
Crum v. Commissioner, 

(D.C. Cir. 1980) (time begins to run on date
of receipt), with Pugsley v. Commissioner, 

, 692-693 (11th Cir.
1985) (time begins to run on date of mailing if ample time to file a petition).
                                         - 13 -

not sent to last known address is valid “if mailing results in actual notice without

prejudicial delay”), aff’g 

(1971); Frieling v. Commissioner, 

, 57 (1983) (“[S]o long as the notice of deficiency is timely mailed by the Com-

missioner and is received without prejudicial delay by the taxpayer * * *, the no-

tice is effective for all purposes from the time of its mailing.”).5

      To reflect the foregoing,



                                                  An order will be issued denying

                                         respondent’s motion to dismiss for lack of

                                         jurisdiction.




      5
        The IRS notice of determination form typically informs the taxpayer: “If
you want to dispute this determination in court, you must file a petition with the
United States Tax Court within 30 days from the date of this letter.” We have no
occasion in this case to decide whether a notice of determination, mailed under
circumstances resembling those here, would be valid if the taxpayer, confused by
the erroneous date on the IRS letter, did not file a petition in this Court.