T.C. Memo. 2000-163
UNITED STATES TAX COURT
ROLAND D. VAN FOSSEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11269-99L. Filed May 18, 2000.
Roland D. Van Fossen, pro se.
Usha Ravi, for respondent.
MEMORANDUM OPINION
GERBER, Judge: Petitioner filed a petition seeking relief
from respondent’s decision to pursue collection activity.
Petitioner is seeking solely to challenge the underlying
deficiencies. Respondent moved to dismiss this proceeding for
lack of jurisdiction on the ground that petitioner is precluded
from questioning the underlying deficiency determinations because
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he had received notice of deficiency prior to the assessment of
the liabilities in question.
Background
Respondent issued statutory notices of deficiency to
petitioner on November 14, 1996, and April 16, 1998, determining
income tax deficiencies and penalties for the 1990, 1991, 1992,
and 1993 tax years. Petitioner failed to petition this Court
with respect to either notice, and respondent assessed the income
tax deficiencies and penalties. On March 2, 1999, respondent
sent petitioner a Final Notice--Notice of Intent To Levy and
Notice of Your Right to a Hearing. On or about March 8, 1999,
respondent filed a Notice of Federal Tax Lien, which was recorded
on March 16, 1999. On March 11, 1999, respondent provided to
petitioner a Notice of Federal Tax Lien Filing and Your Right to
a Hearing Under IRC 6320. On March 17, 1999, respondent received
petitioner’s timely Request for a Collection Due Process Hearing.
On May 20, 1999, respondent issued a Notice of Determination
Concerning Collection Action(s) Under Sections 6320 and/or 6330,
approving the lien and levy actions and denying relief to
petitioner. Petitioner filed a Petition for Lien or Levy Action
Under Code Section 6320(c) or 6330(d),1 seeking relief from
respondent’s collection activity. Respondent moved to dismiss
1
Section references are to the Internal Revenue Code as
amended and in effect for the period under consideration.
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for lack of jurisdiction on the ground that petitioner is
precluded, under section 6330(c)(2)(B), from seeking relief
because he received statutory notices of deficiency with respect
to the taxable periods under consideration.
Discussion
Respondent seeks to have this matter dismissed, contending
that this Court does not have subject matter jurisdiction because
petitioner, under section 6330(c)(2)(B), is precluded from
challenging the underlying tax liability during the
administrative proceeding before the Appeals Office. We note
that this procedural question is the same for lien or levy
proceedings because section 6320(c), in pertinent part, causes
section 6330(c) and (d) to apply in connection with the conduct
of hearings concerning relief sought under section 6320.
The question of our jurisdiction in this type of situation
was recently addressed in Goza v. Commissioner, 114 T.C. ___
(2000). In that case, we held that we have jurisdiction to
review respondent’s administrative determinations in lien and
levy matters involving circumstances similar to those that we
consider in this proceeding. See id. at ___ (slip op. at 10-11).
As in Goza, the only grounds raised by petitioner here concern
the underlying tax liabilities. In that regard, petitioner
contends that the underlying determinations are fraudulent and
that respondent had no authority to make the assessments. These
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grounds are insufficient to challenge respondent’s intent to levy
and the filing of notices of lien.
Section 6330(c)(2)(A) permits taxpayers to raise any
relevant issue, including spousal defenses to collection,
challenges to the appropriateness of the Commissioner’s intended
collection action, and offers of alternative means of collection.
Petitioner does not seek that type of relief permitted and is
prohibited from questioning the underlying deficiencies because
of the issuance and receipt of the prior notices of deficiency
for the same taxable years. See sec. 6330(c)(2)(B).
Accordingly, respondent’s motion to dismiss for lack of
jurisdiction will be denied, and petitioner’s action will be
dismissed for petitioner’s failure to state a claim upon which
relief can be granted.
To reflect the forgoing,
An appropriate order and decision
will be entered.