T.C. Memo. 2001-228
UNITED STATES TAX COURT
FRANK LOPEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10494-00L. Filed August 20, 2001.
Frank Lopez, pro se.
Wendy S. Harris, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
SWIFT, Judge: This case is before us on respondent’s motion
for partial dismissal due to lack of jurisdiction over
respondent’s proposed levy on petitioner’s property for
petitioner’s unpaid Federal income taxes for 1984 through 1987,
1991 through 1993, and 1996, in the total amount of $122,202, and
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additional penalty and interest in the total amount of $59,182.
Respondent concedes that we have jurisdiction over respondent’s
proposed tax lien filings relating to petitioner’s unpaid Federal
income taxes for 1984 through 1987 and for 1996.
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue.
The controlling issue before us on respondent’s instant
motion for partial dismissal involves whether respondent mailed
the notice of intent to levy to petitioner at petitioner’s last
known address. This fact issue turns on whether the receipt by
respondent from petitioner -- 32 days before respondent mailed to
petitioner the notice of intent to levy -- of an incomplete tax
return established that petitioner had a new address to which
respondent should have mailed the notice of intent to levy.
FINDINGS OF FACT
On petitioner’s original and amended Federal income tax
returns for 1986 through 1997, as filed with respondent, the
mailing address of petitioner was indicated as 2550 East Desert
Inn Road, Apartment 201, Las Vegas, Nevada 89121 (Desert Inn
address). The Desert Inn address constitutes the address of
Mailbox, Etc., a retail store that provides post office boxes and
other mail services to paying customers, of whom petitioner was
one.
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On April 15, 1999, petitioner filed with respondent a
document purporting to be petitioner’s Federal income tax return
for 1998. This document was not complete and did not reflect
petitioner’s income. On this document, petitioner’s mailing
address was indicated as 3451 Nightflower Lane, Apartment C, Las
Vegas, Nevada 89121 (Nightflower address).
As of May 17, 1999, petitioner’s address was still indicated
in respondent’s computer system as the Desert Inn address.
On May 17, 1999, respondent mailed to petitioner at the
Desert Inn address a Letter 1058, Notice of Intent to Levy and
Notice of * * * [a] Right To a Hearing (Levy Letter) relating to
$122,202 in petitioner’s unpaid Federal income taxes for 1984
through 1987, 1991 through 1993, and 1996, in which respondent
informed petitioner that, in order to contest the proposed levy,
petitioner must request from respondent a Collection Due Process
(CDP) hearing within 30 days of May 17, 1999.
Respondent did not receive a request from petitioner for a
CDP hearing within 30 days of respondent’s mailing of the Levy
Letter.
On each of September 2, 1999, and September 10, 1999,
respondent mailed to petitioner at the Nightflower address a
Letter 3172, Notice of Federal Tax Lien Filing and * * * [a]
Right to a Hearing Under IRC 6320 (Lien Letters), with respect to
petitioner’s unpaid Federal income taxes for 1984 through 1987
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and for 1996, in which respondent informed petitioner that, in
order to contest the proposed lien filings, petitioner must
request a CDP hearing within 30 days.
On September 30, 1999, respondent received from petitioner a
Form 12153, Request for a Collection Due Process Hearing, in
which petitioner requested a CDP hearing with respect to the
above proposed levy and the proposed lien filings.
Sometime after September 30, 1999, respondent denied
petitioner a CDP hearing with respect to the proposed levy, but
respondent granted petitioner a CDP hearing with respect to the
proposed lien filings.
Respondent, however, did grant petitioner an equivalent
hearing under section 301.6330-1T(i), Temporary Proced. & Admin.
Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999), with respect to the
proposed levy.
On August 30, 2000, at the conclusion of the equivalent
hearing, respondent issued to petitioner a decision letter in
which respondent concluded that respondent’s Levy Letter was
properly mailed to petitioner at petitioner’s last known address,
that petitioner’s request for a CDP hearing with regard to the
proposed levy was untimely, and that petitioner was not entitled
to any relief with regard to the proposed levy.
On September 7, 2000, with respect to the proposed lien
filings, respondent issued to petitioner a notice of
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determination pursuant to section 6330 in which respondent
determined that the lien filings constituted appropriate action
and denied petitioner any relief.
As stated, respondent did not conduct a CDP hearing with
regard to the levy proposed in the Levy Letter, and respondent
did not issue a notice of determination with regard thereto.
On October 6, 2000, petitioner filed his petition herein in
which petitioner challenges both the proposed levy and the
proposed lien filings.
OPINION
Prior to collection of taxes by way of a levy on a
taxpayer’s property, section 6330 requires that respondent give
taxpayers notice of, and the opportunity for, administrative
review of the proposed levy in the form of a CDP hearing.
Section 6330(a) specifically provides that respondent shall
notify a taxpayer of the right to a CDP hearing by mailing a
notice of intent to levy to the taxpayer’s last known address,
and the taxpayer has 30 days from the mailing of that notice to
request a CDP hearing. If a timely request for a CDP hearing is
made, respondent is required to make a determination of the
issues raised at the hearing. Sec. 6330(c).
Under section 6330(d), we have jurisdiction to review
respondent’s determination with respect to issues raised at a CDP
hearing only if a notice of determination pursuant to section
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6330 has been mailed to the taxpayer and only if a timely
petition to the Tax Court has been filed. Offiler v.
Commissioner, 114 T.C. 492, 498 (2000) (“The notice of
determination provided for in section 6330 is, from a
jurisdictional perspective, the equivalent of a notice of
deficiency.”).
Generally, the Tax Court does not have jurisdiction to
review decisions made by respondent in equivalent hearings, and a
decision letter thereunder does not constitute a notice of
determination pursuant to section 6330 from which a petition may
be filed in this Court.1 Sec. 301.6330-1T(i), Temporary Proced.
& Admin. Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999); Kennedy v.
Commissioner, 116 T.C. 255, 262-263 (2001); Johnson v.
Commissioner, 86 AFTR 2d 2000-5225, 2000-2 USTC par. 50,591
(D. Or. 2000).
Unless a taxpayer otherwise clearly and concisely conveys to
respondent a change of address, the address reflected on the
taxpayer’s most recently filed tax return will be treated as the
last known address. United States v. Zolla, 724 F.2d 808, 810
1
The temporary regulations provide a limited exception where a
taxpayer seeks review of respondent’s decision in an equivalent
hearing with regard to innocent spouse status under sec. 6015(b)
or (c). Sec. 301.6330-1T(i)(2), Q&A-I5, Temporary Proced. &
Admin. Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999); Mather &
Weisman, 638-2d Tax Mgmt. (BNA), “Defensive Measures,” at A-109
(2000).
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(9th Cir. 1984); Abeles v. Commissioner, 91 T.C. 1019, 1032
(1988).
Because of the large number of tax returns filed with
respondent on or around April 15 and as a matter of “practical
operational necessity”, respondent is allowed, after receipt, a
reasonable period of time to process and to post to respondent’s
computer systems new addresses of taxpayers. Williams v.
Commissioner, 935 F.2d 1066, 1068 (9th Cir. 1991), affg. T.C.
Memo. 1989-439. Whether respondent exceeded a reasonable period
of time to process and to post new addresses involves a question
of fact. Id.
Petitioner contends: (1) That respondent’s May 17, 1999,
Levy Letter was not mailed to his last known address; (2) that he
did not receive the May 17, 1999, Levy Letter mailed to his
Desert Inn address; (3) that respondent’s May 17, 1999, Levy
Letter did not constitute proper notice of his right to a CDP
hearing with regard to the levy notice; and (4) that we therefore
should enjoin respondent’s proposed levy.
We disagree. Particularly in light of the fact that
petitioner’s 1998 Federal income tax return constituted an
incomplete return, a 32-day period did not exceed a reasonable
period of time for respondent to post petitioner’s Nightflower
address to respondent’s computer system. Rev. Proc. 90-18,
1990-1 C.B. 491, 494. Accordingly, respondent, in this case, was
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entitled, for purposes of the address to which the notice of levy
would be mailed, to use petitioner’s Desert Inn address. With
respect to the levy proposed in the Levy Letter, respondent gave
petitioner under section 6330 adequate notice of and the
opportunity to request a CDP hearing.
Petitioner failed timely to request a CDP hearing, and
petitioner is not now entitled to challenge in this Court
respondent’s failure to grant petitioner a CDP hearing with
regard to the proposed levy.
Further, because respondent did not issue to petitioner a
notice of determination with regard to the proposed levy and
because respondent’s decision letter pursuant to the equivalent
hearing does not constitute a notice of determination under
section 6330, we lack jurisdiction to review respondent’s
proposed levy.
To reflect the foregoing,
An appropriate order of
dismissal for lack of
jurisdiction as to the
proposed levy relating to
petitioner’s property for
unpaid Federal income tax for
1984 through 1987, 1991
through 1993, and 1996, will
be issued.