T.C. Memo. 2002-161
UNITED STATES TAX COURT
THOMAS & IRIS TILLEY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 400-01L. Filed June 25, 2002.
Knox Kent Lively III, for petitioners.
Blake Ferguson and J. Craig Young, for respondent.
MEMORANDUM OPINION
PAJAK, Special Trial Judge: This case comes before the
Court on respondent’s Motion To Dismiss For Lack Of Jurisdiction,
and on petitioners’ cross-motion to dismiss. Section references
are to the Internal Revenue Code as amended.
On May 26, 1999, the Internal Revenue Service Appeals Office
in Greensboro, North Carolina, issued two separate Notices of
Determination Concerning Collection Action(s) Under Section 6320
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and/or 6330 (notice[s] of determination). One notice of
determination was issued to both petitioners, stating
respondent’s intention to proceed with collection by levy of
their joint Federal income tax liabilities for the taxable years
1991 and 1992. The other notice of determination was issued to
petitioner Thomas Tilley, stating respondent’s intention to
proceed with collection by levy of his separate Federal income
tax liabilities for the taxable years 1994 and 1995.
The notice of determination for the 1991 and 1992 income
taxes was sent to petitioners at their last known address, 4920
Farrington Road, Chapel Hill, North Carolina 27514-8603, by
certified mail on May 26, 1999. The notice of determination for
the 1994 and 1995 income taxes was sent to Mr. Tilley at his last
known address, 4920 Farrington Road, Chapel Hill, North Carolina
27514-8603, by certified mail on May 26, 1999.
Petitioners filed one petition for review of respondent’s
notices of determination relating to the Federal income taxes for
the taxable years 1991, 1992, 1994, and 1995. Petitioners
resided in Chapel Hill, North Carolina, at the time their
petition was filed.
The 30-day period provided by section 6330(d)(1) for timely
filing a petition for review of the notices of determination with
this Court expired on June 25, 1999. That date was not a legal
holiday in the District of Columbia. The petition was filed with
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the Tax Court on January 8, 2001, which date is 593 days after
the mailing of the notices of determination. The date of the
U.S. Postmark stamped on the cover in which the petition was
mailed by regular mail to this Court is January 4, 2001, which
date is 589 days after the mailing of the notices of
determination.
Petitioners do not contest the foregoing facts.
Respondent’s position is that the petition was not filed
with the Court within the time prescribed by sections 6330(d)(1)
or 7502. Petitioners’ position is that respondent did not
provide petitioners with an opportunity for a hearing as required
by section 6330 and therefore that this Court should dismiss this
case because petitioners claim the notices of determination are
invalid.
There is no dispute that the Court lacks jurisdiction in
this case.
Section 6330 provides in part as follows:
SEC. 6330(a). Requirement Of Notice Before Levy.--
(1) In General.-–No levy may be made on any property or
right to property of any person unless the Secretary has
notified such person in writing of their right to a hearing
under this section before such levy is made. Such notice
shall be required only once for the taxable period to which
the unpaid tax specified in paragraph (3)(A) relates.
(2) Time And Method For Notice.-–The notice required
under paragraph (1) shall be–-
* * * * * * *
(C) sent by certified or registered mail, return
receipt requested, to such person’s last known address;
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not less than 30 days before the day of the first levy with
respect to the amount of the unpaid tax for the taxable
period.
(3) Information Included With Notice.-–The notice
required under paragraph (1) shall include in simple and
nontechnical terms–
(A) the amount of unpaid tax;
(B) the right of the person to request a hearing
during the 30-day period under paragraph (2); and
* * * * * * *
(b) Right To Fair Hearing.–
(1) In General.-–If the person requests a hearing under
subsection (a)(3)(B), such hearing shall be held by the
Internal Revenue Service Office of Appeals.
(2) One Hearing Per Period.-–A person shall be entitled
to only one hearing under this section with respect to the
taxable period to which the unpaid tax specified in
subsection (a)(3)(A) relates.
On February 3, 1999, respondent sent to petitioners a Notice
of Intent To Levy And Notice Of Your Right To A Hearing (notice
of intent to levy) with respect to the taxable years 1991, 1992,
1994, and 1995. On February 24, 1999, the Internal Revenue
Service (IRS) received petitioners’ February 22, 1999, Request
for a Collection Due Process Hearing with respect to those years.
On March 8, 1999, A.G. Wilson (Mr. Wilson), an Appeals officer,
sent a letter to petitioners which states as follows:
This case has been referred to our office.
I will write or call you soon to arrange a mutually
satisfactory date for a conference.
If you need to contact me in the meantime, you may
write me at the address below or call me at the telephone
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number shown above. Please enclose a copy of this letter
with any written correspondence.
On April 15, 1999, Mr. Wilson held a telephone conference
with Mr. Tilley in response to the request for a collection
hearing. Both parties discussed the issues in the request. Mr.
Wilson observed that there were four basic issues in petitioners’
protest and went over those issues with Mr. Tilley at that time.
One issue discussed was a notice of intent to levy sent to Mrs.
Tilley for years not applicable to her. Mr. Wilson discovered
this had been corrected and that an appropriate notice of intent
to levy had been sent. Another issue discussed during the
telephone conference was the application of funds received by way
of lien discharges and Mr. Wilson determined the funds had been
properly applied. Mr. Tilley argued that he was entitled to
certain deductions and credits. Mr. Wilson offered to send Mr.
Tilley the transcripts of account. Mr. Wilson observed that the
Tax Court had decided petitioners’ 1991 and 1992 years on the
merits. As to 1994 and 1995, Mr. Wilson noted that Mr. Tilley,
who had not filed returns for those years, was sent notices of
deficiency but did not file a petition with this Court. The last
issue Mr. Tilley and Mr. Wilson discussed during the telephone
conference was that Mr. Tilley challenged the Federal income tax
laws as being unconstitutional because they were capitation
taxes. Mr. Wilson advised Mr. Tilley that it was not the
function of Appeals to decide such questions but that these were
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matters for the courts.
During the telephone conference, Mr. Wilson asked Mr. Tilley
if he wanted a face-to-face meeting. As Mr. Wilson testified: “I
asked him at the beginning of the conference whether he wanted a
face-to-face meeting. He said, Not at this time. And at the end
of the conference, I asked him if he had any questions for me,
and he did not ask for a person-to-person hearing at that time.”
Mr. Wilson also said: “Well, after I explained that if there
were no other issues, I’d be issuing a determination letter, at
which time he [Mr. Tilley] indicated it would be fine just to go
ahead and send the transcripts with the determination letter
instead of separately, or earlier.”
It is obvious from the record that Mr. Tilley and the
Appeals officer did in fact discuss the case over the telephone
and that the Appeals officer heard and considered Mr. Tilley’s
arguments. In Katz v. Commissioner, 115 T.C. 329, 337-338
(2000), this Court held that where the taxpayer and the Appeals
officer had a telephone conference about the taxpayer’s
arguments, the taxpayer had received an Appeals hearing as
provided in section 6320(b) in the circumstances of that case.
On April 15, 1999, Mr. Wilson received another letter from
Mr. Tilley dated March 31, 1999, which was a second request for a
hearing. Mr. Tilley had sent this letter to a revenue officer
who forwarded it to Mr. Wilson. As detailed above, a telephone
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conference took place on April 15, 1999, the date the second
request was received by Mr. Wilson. In a May 17, 1999, letter
petitioners referred to the telephone conference with an Appeals
Officer and, among other things, requested a person-to-person
hearing. In a September 16, 1999, letter, petitioners
acknowledged that, during a telephone conference Mr. Tilley
initially agreed with an IRS official that a face-to-face hearing
would not be necessary, but upon further reflection, petitioners
later requested a person-to-person hearing in their May 17, 1999,
letter.
On May 26, 1999, respondent issued two notices of
determination, one to petitioners for the taxable years 1991 and
1992, and one to Mr. Tilley for the taxable years 1994 and 1995.
Nothing in the notices of determination leads us to conclude that
the determinations were invalid. We find that the notices of
determination clearly embody the Appeals Officer’s determinations
that collections by way of levy may proceed. Thus, regardless of
whether petitioners were given an appropriate hearing
opportunity, there was a valid determination. We recently held
that, in determining the validity of a notice of determination
for jurisdictional purposes, we shall not look behind such a
notice in order to ascertain whether the taxpayer was afforded an
appropriate hearing with respondent’s Appeals Office. Lunsford
v. Commissioner, 117 T.C. 159, 164-165 (2001). Consistent with
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our holding in Lunsford, we hold that the notices of
determination issued to petitioners were valid.
Because the notices of determination were valid, we consider
respondent’s motion. Petitioners acknowledge in their cross-
motion to dismiss that a petition from a notice of determination
must be filed within 30 days of such a determination. The
undisputed facts underlying respondent’s motion and set forth
above compel us to conclude that this petition was untimely under
section 6330(d)(1) or 7502, and this case must be dismissed for
that reason.
An appropriate Order and
Order of Dismissal will be
entered.