T.C. Memo. 2003-29
UNITED STATES TAX COURT
MARY LOU AND ALLEN E. JONES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3965-02L. Filed February 6, 2003.
On Dec. 18, 2001, R mailed to Ps separate,
identical Notices of Determination Concerning
Collection Action(s) Under Sec. 6320 and/or 6330,
I.R.C. In addition to the Dec. 18, 2001, date stamped
next to the word “Date”, each notice was stamped “FEB
16 2002", in the immediate proximity of the words “in
re: Due Process Appeal (Tax Court)”. More than 30
days after the Dec. 18, 2001, mailing date of the
notices, Ps filed a petition with the Tax Court seeking
judicial review of the determination. R moved to
dismiss the petition for lack of jurisdiction on the
ground that the petition was not filed within the 30-
day period prescribed in sec. 6330(d)(1)(A), I.R.C.
Held: Because Ps failed to file their petition
within 30 days of the notices of adverse determination,
the petition is dismissed for lack of jurisdiction.
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Allen E. Jones, for petitioners.
A. Gary Begun, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
HALPERN, Judge: This case is before the Court on
respondent’s motion to dismiss for lack of jurisdiction (the
motion). Petitioners object. Respondent’s grounds are that the
petition was not filed within the time prescribed by section
6330(d)(1)(A). An evidentiary hearing was held in Detroit,
Michigan, on June 10, 2002, at which testimony was taken and
other evidence was received. On the basis of the evidence, and
for the reasons that follow, we shall grant the motion.
Unless otherwise indicated, all section references are to
the Internal Revenue Code presently in effect, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
At the time the petition was filed, petitioners, husband and
wife, resided in Deckerville, Michigan.
On December 18, 2001, the Internal Revenue Service Appeals
Office in Detroit, Michigan, mailed to each petitioner a “Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330", which notices (the notices) are identical
except for name and salutation. The notices concern petitioners’
unpaid joint Federal income tax liabilities for 1995 and 1996.
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The notices were sent to petitioners by certified mail, and
petitioner wife signed for each on December 20, 2001.
Each notice was date stamped “DEC 18 2001" in the upper left
hand corner next to the word “Date”. Vertically listed in the
upper right hand corner of each notice were various items of
information, including information regarding the person to
contact at the Internal Revenue Service and a telephone number to
call. The last item was the subject matter of the notice: “In
Re: Due Process Appeal (Tax Court)”. Each notice bore a second
date stamp, “FEB 16 2002", immediately under or next to that last
information item. Each notice also contained the following
sentence (comprising a separate paragraph) in the body of the
notice:
If you want to dispute this determination in court, you
must file a petition with the United States Tax Court
for a redetermination within 30 days from the date of
this letter.
Each notice also contained the following language:
The time limit for filing your petition is fixed by
law. The courts cannot consider your case if you file
late. * * *
Petitioners waited until January 23, 2002, to inquire about
the significance of the two dates stamped on the notices. On
that date, petitioner husband inquired of Appeals Officer Dianne
Villa about such significance. Ms. Villa informed him that he
had only 30 days from the date of the notices to appeal to the
Tax Court and that the February 16 date was probably an internal
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follow up date inadvertently placed on the notices by
respondent’s records unit (which fact Ms. Villa later confirmed).
On February 19, 2002, the Court received and filed a
petition dated February 15, 2002, in which petitioners seek
review of respondent’s determination, which they identify in the
petition as “the Notice of Determination dated 2-16-2002".
OPINION
I. Introduction
Section 6330 accords taxpayers the right to notice and the
opportunity for a hearing before the Commissioner can proceed
with the collection of taxes by way of a levy on property or
rights to property. Sec. 6330(a). The hearing is to be held by
the Internal Revenue Service Appeals Office. Sec. 6330(b)(1).
When the Appeals Office issues a determination letter to the
taxpayer following the required hearing, section 6330(d)(1)
provides that the taxpayer has 30 days following the issuance of
such determination letter to file a petition for review with the
Tax Court or, if the Tax Court lacks jurisdiction over the
underlying tax liability, with a Federal District Court. This
Court’s jurisdiction under section 6330(d) is dependent upon the
issuance of a valid determination letter and the filing of a
timely petition for review. Rule 330(b); Offiler v.
Commissioner, 114 T.C. 492, 498 (2000).
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There is no question that the petition was not filed within
the 30-day period prescribed by section 6330(d)(1) for requesting
judicial review of an adverse determination made under section
6330. On that basis, respondent asks that we grant the motion.
Petitioners object, and they ask us to deny the motion on the
basis that they “justifiably relied upon the [February 16] date
clearly marked on Respondent’s Notice of Determination”. In
support of their objection, petitioners argue that the February
16 date is “located in the same general area and format as other
letters and notices issued by Respondent”. To illustrate their
point, they attach to their brief a copy of a notice of
deficiency where, in the upper right hand corner, a date appears
under the words “Last Date to Petition Tax Court”.
II. Discussion
While we question our authority to lengthen the period fixed
by section 6330(d)(1), see discussion infra, we first address
petitioners’ claim that the equities of the situation favor them.
The notices were mailed and clearly dated December 18, 2001,
and were received by petitioners on December 20, 2001. Moreover,
the notices specifically warned that any petition for a
redetermination must be filed “within 30 days from the date of
this letter” and that “[t]he courts cannot consider your case if
you file late.” Although, on a notice of deficiency, a second
date (in addition to the “Letter Date”) appears under the words
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“Last Date to Petition the Tax Court”, here the second date
appeared in close proximity to the words “In Re: Due Process
Appeal (Tax Court)”. A determination letter triggering a
taxpayer’s right to appeal to the Tax Court pursuant to section
6330(d)(1), unlike a notice of deficiency triggering a taxpayer’s
right to petition the Tax Court to redetermine a deficiency
pursuant to section 6213(a), need not show the last day on which
the taxpayer may file an appeal. Cf. Rochelle v. Commissioner,
116 T.C. 356 (2001), affd. 293 F.3d 740 (5th Cir. 2002).
Although the appearance of the February 16 date may have been
confusing to the petitioners, we disagree with their
characterization of such date as demonstrating that “[t]he Notice
on its face clearly states that the Due Process Appeal to the Tax
Court is [due] February 16, 2002.” The Notices do no such thing,
particularly in light of their clear admonition that, to be
effective, the petition must be filed with the Tax Court within
30 days “from the date of this letter.”
When they received the notices, on December 20, 2001,
petitioners had 28 days in which to either clarify that the 30-
day period ran from December 18, or file a protective petition
with this Court pending later clarification of the due date.
Instead, they waited until January 23, 6 days after the 30-day
period had expired, to seek clarification. Under the
circumstances, the equities of the situation do not favor them.
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We agree with respondent that “petitioners’ allegations that they
relied upon the second date stamp of ‘February 16, 2002' are
self-serving and lack merit when viewed under the totality of
circumstances”.
Moreover, statutory periods are jurisdictional and cannot be
extended. McCune v. Commissioner, 115 T.C. 114, 117 (2002);
Joannou v. Commissioner, 33 T.C. 868, 869 (1960). See also In re
Smith v. United States, 96 F.3d 800, 802 (6th Cir. 1996), in
which the Court of Appeals for the Sixth Circuit (the court to
which an appeal from this decision would lie) noted that it has
been “rather consistent in denying ‘equitable’ pleas to disregard
the strict timing rules of the Tax * * * [Code]”, and United
States v. Brockamp, 519 U.S. 347 (1997), in which the Supreme
Court refused to permit equitable tolling of the limitations
period on income tax refund claims. Here, there is no basis to
even consider whether equitable relief might be appropriate. The
notices were clearly dated December 18, 2001, and were received
by petitioners on December 20, 2001. Petitioners could have
resolved any confusion that might have been caused by the
February 16, 2002, date stamp simply by contacting the Internal
Revenue Service upon their receipt of the notices, or during the
ensuing 28-day period, at the contact telephone number provided
on the notices themselves. Their failure to do so has resulted
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in an untimely petition and a resulting inability to invoke the
jurisdiction of this Court under section 6330(d).
III. Conclusion
Because of petitioners’ failure timely to file a petition,
we have no jurisdiction to review the notices.
To reflect the foregoing,
An appropriate order of
dismissal for lack of
jurisdiction will be entered.