T.C. Memo. 2003-76
UNITED STATES TAX COURT
PAUL L. HICKEY AND NELLIDA F. HICKEY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8662-02L. Filed March 14, 2003.
Karen Lynne Baker and Rollin G. Thorley, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s Motion to Dismiss for Lack of Jurisdiction, as
supplemented. As explained in detail below, we shall grant
respondent’s motion in part and deny it in part.
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Background
On July 13, 2001, respondent issued to petitioners separate
Notices of Determination Concerning Collections Action(s) Under
Section 6320 and/or 6330 with regard to their unpaid taxes for
1996 and 1997.1 On August 8, 2001, respondent issued to
petitioner Paul L. Hickey a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330 with regard
to his unpaid tax for 1998.
On August 9, 2001, petitioners filed a Complaint with the
U.S. District Court for the District of Nevada (District Court)
challenging the notices of determination dated July 13, 2001. On
September 10, 2001, petitioners filed an Amendment To Original
Complaint with the District Court seeking to amend their
complaint to challenge the notice of determination dated August
8, 2001.
On September 12, 2001, the Government filed a motion to
dismiss the District Court action. On February 15, 2002, the
District Court entered a Judgment on its Order dismissing
petitioners’ Complaint for lack of subject matter jurisdiction.
The District Court observed in its Order that petitioners would
have “thirty days in which to bring their claim in the Tax
Court.”
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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On March 1, 2002, petitioners filed with the District Court
a motion for reconsideration. On April 11, 2002, the District
Court entered an Order denying petitioners’ motion for
reconsideration.
On May 15, 2002, petitioners filed with this Court a
Petition for Lien or Levy Action challenging the notices of
determination dated July 13, 2001, and August 8, 2001.2 The
petition arrived at the Court in an envelope bearing a private
postage meter postmark dated May 7, 2002.
In response to the petition, respondent filed a Motion To
Dismiss For Lack Of Jurisdiction. Respondent asserted that the
Court was without jurisdiction to review the notices of
determination dated July 13, 2001, because petitioners failed to
file their petition with the Court within 30 days of the District
Court’s Judgment and Order, entered February 15, 2002, dismissing
petitioners’ Complaint. Respondent also argued that the Court
lacked jurisdiction to review the notice of determination dated
August 8, 2001. Relying on McCune v. Commissioner, 115 T.C. 114
(2000), respondent asserted that petitioners’ Amendment to
Original Complaint, filed with the District Court on September
10, 2001, was not filed within 30 days of the notice of
determination dated August 8, 2001. See sec. 6330(d)(1).
2
At the time that their petition was filed, petitioners
resided in Las Vegas, NV.
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Petitioners filed an Objection to respondent’s motion to dismiss.
This matter was called for hearing at the Court’s motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and was heard. In contrast, there was no appearance
by or on behalf of petitioners at the hearing, nor did
petitioners file with the Court a written statement under Rule
50(c), the provisions of which were noted by the Court in its
Order setting respondent’s motion for hearing.
During the hearing, counsel for respondent informed the
Court that respondent had reconsidered his position and concluded
that the petition was timely filed with regard to the notices of
determination dated July 13, 2001. In particular, respondent
asserted that because the petition was mailed to the Court on May
7, 2002, a date within 30 days of the District Court’s April 11,
2002, Order denying petitioners’ motion for reconsideration, the
petition was timely filed with regard to the notices of
determination dated July 13, 2001.
Following the hearing, respondent filed a Supplement to his
motion to dismiss. In the Supplement, respondent elaborated on
his position with regard to the notices of determination dated
July 13, 2001. However, respondent maintained his original
position that the petition was untimely with regard to the notice
of determination dated August 8, 2001.
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By Order dated January 8, 2003, the Court directed
petitioners, on or before January 29, 2003, to file a Response,
if any, to respondent’s Supplement. Petitioners did not respond
to the Court’s Order.
Discussion
Sections 6320 and 6330 generally provide that the
Commissioner cannot proceed with collection by lien or levy until
the taxpayer has been given notice of and the opportunity for an
administrative review of the proposed collection action (in the
form of an Appeals Office hearing) and, if dissatisfied, the
taxpayer may seek 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).
The Court’s jurisdiction under sections 6320 and 6330
depends on the issuance of a valid notice of determination and
the filing of a timely petition for review. See Moorhous v.
Commissioner, 116 T.C. 263, 269 (2001); Offiler v. Commissioner,
114 T.C. 492, 498 (2000); see also Rule 330(b). When the
Commissioner issues a determination letter to a taxpayer
following an administrative hearing, section 6330(d)(1) provides
that the taxpayer will have 30 days to file a petition for review
with the Tax Court or a Federal District Court, as appropriate.
Offiler v. Commissioner, supra at 498.
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The flush language of section 6330(d)(1) provides: “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.” In McCune v. Commissioner,
supra, we held that we lacked jurisdiction under section 6330
inasmuch as the taxpayer failed to file his initial petition with
the District Court within 30 days of the notice of determination.
A. Jurisdiction With Respect to the Notices of
Determination Dated July 13, 2001
Although respondent now asserts that the Court has
jurisdiction to review the notices of determination dated July
13, 2001, jurisdiction cannot be conferred on the Court by
agreement of the parties. Dorn v. Commissioner, 119 T.C. 356
(2002). A jurisdictional issue can be raised by either party or
the Court sua sponte at any stage of the proceedings. Id. at
357; Smith v. Commissioner, 96 T.C. 10, 13-14 (1991).
The record shows that petitioners timely filed their
Complaint with the District Court on August 9, 2001; i.e., within
30 days of the notices of determination dated July 13, 2001.
However, the question remains whether petitioners filed their
petition with this Court within 30 days of the District Court’s
“determination” that petitioners filed their appeal with the
wrong court as required under the flush language of section
6330(d)(1), quoted above.
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Although the District Court first entered a Judgment on its
Order dismissing petitioner’s complaint on February 15, 2002,
petitioners filed, on March 1, 2002, a “Motion for
Reconsideration” or, more appropriately, a motion to alter or
amend the judgment, under Fed. R. Civ. P. 59(e).3 The District
Court considered petitioners’ motion in due course and denied the
same by Order entered April 11, 2002. Petitioners then mailed
their petition to the Court on May 7, 2002, and the petition was
received and filed on May 15, 2002. Applying the timely
mailing/timely filing rule set forth in section 7502(a), it
follows that the petition was filed with the Court within 30 days
of the District Court’s April 11, 2002 Order.
Under the particular circumstances of this case, we agree
with respondent that the petition was timely filed under section
6330(d)(1) with regard to the notices of determination dated July
13, 2001. We conclude that the District Court’s Order entered
April 11, 2002, as opposed to the District Court’s Order entered
February 15, 2002, served as the determination that started the
30-day time period running within which petitioners were required
3
Fed. R. Civ. P. 59(e) provides that a motion to alter or
amend a judgment must be filed no later than 10 days after entry
of the judgment. Fed. R. Civ. P. 6(a) provides: “When the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.” Excluding Saturdays (2), Sundays
(2), and the Federal holiday for Presidents’ Day, petitioners’
motion was filed with the District Court within 10 days of the
District Court’s Judgment and Order entered Feb. 15, 2002.
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to file their petition with this Court.
Our holding on this issue is informed in large part by Fed.
R. App. P. 4(a)(4)(A)(iv), which provides that the time for
filing an appeal from a District Court judgment runs for all
parties from the entry of an Order disposing of a timely filed
motion under Fed. R. Civ. P. 59. In the absence of a specific
statutory provision defining the “determination” referred to in
section 6330(d)(1), it is appropriate in this case to treat the
District Court’s Order denying petitioners’ timely motion under
Fed. R. Civ. P. 59(e) as the operative determination.
B. Jurisdiction With Respect to the Notice of Determination
Dated August 8, 2001
Respondent argues that the Court lacks jurisdiction to
review the notice of determination issued to petitioner Paul L.
Hickey on August 8, 2001, on the ground that petitioners’
Amendment To Original Complaint, filed with the District Court on
September 10, 2001, was not filed within 30 days of the notice of
determination. We agree.
By virtue of section 7503, the 30-day filing period within
which petitioner Paul L. Hickey had to challenge the notice of
determination dated August 8, 2001, expired on Friday, September
7, 2001, a date that was not a legal holiday in the District of
Columbia. Thus, petitioners’ Amendment To Original Complaint,
which was filed with the District Court on Monday, September 10,
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2001, was not timely filed.4 Nor does petitioners’ Amendment To
Original Complaint relate back to their original Complaint, filed
August 9, 2001. Fed. R. Civ. P. 15(c)(2) provides that an
amendment of a pleading relates back to the date of the original
pleading when “the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set
forth in the original pleading”. It is well settled that each
taxable year “is the origin of a new liability and of a separate
cause of action.” Commissioner v. Sunnen, 333 U.S. 591, 598
(1948); see O’Neil v. Commissioner, 66 T.C. 105, 107-108 (1976).
Accordingly, petitioners’ Amendment To Original Complaint, which
challenged respondent’s determination to proceed with collection
of petitioner Paul L. Hickey’s taxes for 1998, does not relate
back to the original Complaint, which challenged respondent’s
determination to proceed with collection of petitioners’ taxes
for 1996 and 1997.
Consistent with the preceding discussion, and this Court’s
holding in McCune v. Commissioner, 115 T.C. 114 (2000), it
follows that we must dismiss this case for lack of jurisdiction
with regard to the notice of determination dated August 8, 2001.
4
The record in this case provides no basis to conclude
that petitioner Paul L. Hickey, a resident of Las Vegas, NV,
delivered his Amendment To Original Petition to the District
Court other than by hand.
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To reflect the foregoing,
An Order will be issued
granting respondent’s Motion
to Dismiss for Lack of
Jurisdiction, as supplemented, in
part and denying such motion in
part.