T.C. Memo. 2002-15
UNITED STATES TAX COURT
FRANKLIN A. OGDEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3343-01L. Filed January 15, 2002.
Franklin A. Ogden, pro se.
Gerald W. Douglas, Karen Baker and Peter Reilly, for
respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This collection review
case is before the Court on respondent’s motion to dismiss for
lack of jurisdiction. As explained in detail below, we shall
grant respondent’s motion to dismiss.1
1
Unless otherwise indicated, section references are to
sections of the Internal Revenue Code, as amended, and Rule
(continued...)
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Background
On July 8, 1999, respondent mailed to petitioner a Final
Notice Of Intent to Levy and Notice of Your Right To A Hearing
requesting that petitioner pay his delinquent income taxes for
the taxable year 1984. Petitioner responded by filing with the
Internal Revenue Service Office of Appeals (Appeals Office) a
request for an administrative hearing.
By letter dated January 31, 2000, Appeals Officer Jose
Gonzales directed petitioner to contact him by February 14, 2000,
for the purpose of scheduling an administrative hearing. On
February 7, 2000, Appeals Officer Gonzales received a letter from
Gary Arthur DeMott (Mr. DeMott), identified in the letter as
petitioner’s representative, stating that petitioner intended to
challenge his underlying tax liability for 1984. By letter dated
February 14, 2000, Appeals Officer Gonzales informed petitioner
that he had received a letter from Mr. DeMott, that Mr. DeMott
was not duly authorized to represent petitioner, and that “If I
do not hear from you and you do not provide additional evidence
or make arrangements to pay the tax for 1984 before February 24,
2000, I will send you a determination letter providing your
judicial rights.”
1
(...continued)
references are to the Tax Court Rules of Practice and Procedure.
This case was assigned pursuant to sec. 7443A(b)(4).
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On April 19, 2000, the Appeals Office issued to petitioner a
Notice of Determination Concerning Collection Actions Under
Section 6320 and/or 6330 (notice of determination) concerning his
1984 tax liability. The determination letter informed petitioner
that he would have 30 days to contest the matter by filing a
petition with the Tax Court.
On May 17, 2000, petitioner filed a “Petition for Judicial
Review” in the U.S. District Court for the District of Idaho,
assigned docket No. CV00-266-N-EJL, challenging the notice of
determination. On December 20, 2000, the District Court issued
an order dismissing the case for lack of jurisdiction. The order
stated that petitioner would have 30 days to file a petition for
review with the Tax Court.
On January 23, 2001, petitioner instituted a second action
in the District Court by filing a “Complaint And Request For
Judicial Review Of Administrative Action”, assigned docket No.
CV01-35-N-EJL, again challenging the notice of determination. On
February 8, 2001, the District Court issued an order dismissing
the case for lack of jurisdiction. The order again stated that
petitioner would have 30 days to file a petition for review with
the Tax Court.
On March 14, 2001, the Court received and filed a Petition
For Lien Or Levy Action Under Code Sections 6320(c) Or 6330(d)
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challenging the notice of determination.2 The petition arrived
in an envelope bearing a U.S. Postal Service postmark dated
March 9, 2001. In response to the petition, respondent filed a
motion to dismiss for lack of jurisdiction asserting that the
petition was not filed with the Court within 30 days of the
District Court’s order of dismissal issued December 20, 2000.
Petitioner filed an objection to respondent’s motion to
dismiss asserting that: (1) His petition was filed with the
Court within 30 days of the District Court’s order of dismissal
issued February 8, 2001; and (2) respondent failed to conduct an
administrative hearing in this case.
This matter was called for hearing at the Court’s motions
session held in Washington, D.C. Counsel for respondent appeared
at the hearing and offered argument in support of respondent’s
motion to dismiss. Although no appearance was entered by or on
behalf of petitioner at the hearing, petitioner filed with the
Court a written statement and a supplemental written statement
pursuant to Rule 50(c).3 Petitioner repeated his argument that
2
At the time the petition was filed, petitioner resided in
Sagle, Idaho.
3
Before the hearing, the Court summarily denied
petitioner’s motion for hearing to determine real parties in
interest. The motion was replete with frivolous arguments and,
among other things, asserted:
Natural person petitioner, Franklin A. Ogden
therefore requests a hearing wherein respondent must
declare via a sworn statement, subject to the penalty
(continued...)
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his petition was timely filed, and, in the alternative, requested
that the Court direct respondent to provide him an administrative
hearing.
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 the person’s property. Section
6331(d) provides that, at least 30 days before enforcing
collection by way of a levy on the 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 to the person.
In the Internal Revenue Service Restructuring and Reform Act
of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress
enacted new sections 6320 (pertaining to liens) and 6330
(pertaining to levies) to provide protections for persons in tax
collection matters. Sections 6320 and 6330 generally provide
that the Commissioner cannot proceed with collection by way of a
lien or levy action until the person has been given notice and
the opportunity for an administrative review of the matter (in
3
(...continued)
of perjury under the laws of the United States, whether
it is the legal fiction FRANKLIN A. OGDEN, respondent
is asserting a tax liability for the 1984 tax year, or
is respondent asserting that natural person Franklin A.
Ogden has a tax liability for the 1984 tax year.
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the form of an Appeals Office hearing), and if dissatisfied, with
judicial review of the administrative determination. See Davis
v. Commissioner, 115 T.C. 35, 37 (2000); Goza v. Commissioner,
114 T.C. 176, 179 (2000).
Section 6330(c) prescribes the matters a person may raise at
an Appeals Office hearing. In sum, section 6330(c) provides that
a person may raise collection issues such as spousal defenses,
the appropriateness of the Commissioner's intended collection
action, and possible alternative means of collection. Section
6330(c)(2)(B) provides that the existence and amount of the
underlying tax liability can be contested at an Appeals Office
hearing only if the person did not receive a notice of deficiency
for the taxes in question or did not otherwise have an earlier
opportunity to dispute the tax liability. See Sego v.
Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,
supra.
Where the Appeals Office issues a determination letter to
the person following an administrative hearing regarding a lien
or levy action, sections 6320(c) (by way of cross-reference) and
6330(d)(1) provide that the person will have 30 days following
the issuance of the determination letter to file a petition for
review with the Tax Court or a Federal District Court. See
Offiler v. Commissioner, 114 T.C. 492, 498 (2000). Section
6330(d)(1) provides:
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SEC. 6330(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.
See McCune v. Commissioner, 115 T.C. 114 (2000) (dismissing a
petition for lack of jurisdiction where the taxpayer failed to
file his initial petition for review with the Federal District
Court within the 30-day period).
We have held that the Court’s jurisdiction under sections
6320 and 6330 depends upon the issuance of a determination letter
and the filing of a timely petition for review. See Sarrell v.
Commissioner, 117 T.C. 122, 125 (2001); Offiler v. Commissioner,
supra at 498.
In the instant case, petitioner erroneously filed his
initial petition with the District Court. On December 20, 2000,
the District Court issued an order dismissing the petition for
lack of jurisdiction and informing petitioner that he would have
30 days from the date of the order to file a petition with the
Tax Court. Petitioner again failed to file a petition for review
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with this Court and instead filed a second action in the District
Court. Petitioner mailed a petition for review to this Court
within 30 days after the District Court issued its order
dismissing the second action for lack of jurisdiction.
Section 6330(d)(1) provides in unambiguous terms that “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.” The 30-day period within
which petitioner had to file a petition for review with the Court
began to run on December 20, 2000--the date the District Court
issued its order dismissing petitioner’s initial action for lack
of jurisdiction. Petitioner’s position that the 30-day period
should be measured from the date the District Court issued its
order dismissing his second action would thwart the plain
language of the statute and Congress’s intent that collection
review proceedings be instituted within a fixed and relatively
limited time. In this connection, we have stated on numerous
occasions that the Tax Court is a court of limited jurisdiction,
and we may exercise our jurisdiction only to the extent
authorized by Congress. See sec. 7442; Judge v. Commissioner, 88
T.C. 1175, 1180-1181 (1987); Naftel v. Commissioner, 85 T.C. 527,
529 (1985). We have held that the statutory periods set forth in
section 6330 are jurisdictional and cannot be extended. See
McCune v. Commissioner, supra at 117; cf. Kennedy v.
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Commissioner, 116 T.C. 255, 262 (2001) (holding that the
Commissioner may not waive the time restrictions imposed in
section 6330).
On the basis of the foregoing, we hold that we lack
jurisdiction inasmuch as the petition was not timely filed with
the Court. Accordingly, we shall grant respondent’s motion to
dismiss for lack of jurisdiction.
Petitioner also contends that the Appeals Office issued the
notice of determination without conducting an administrative
hearing. In Lunsford v. Commissioner, 117 T.C. 159, 164 (2001),
we recently held that we shall not look behind a notice of
determination to consider whether the Appeals Office conducted an
administrative hearing. Consistent with our holding in Lunsford
we hold that the notice of determination issued to petitioner is
valid.
We have considered petitioner’s remaining arguments and find
them to be meritless.
To reflect the foregoing,
An order of dismissal
for lack of jurisdiction
will be entered.