T.C. Memo. 2003-137
UNITED STATES TAX COURT
PAUL EVERMAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13268-02L. Filed May 14, 2003.
Jerry Arthur Jewett, for petitioner.
Michelle M. Lippert and Julie A. Pals, 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. Respondent contends that the Court lacks
jurisdiction over the petition on the grounds that: (1) The
petition was not filed within the 90-day period prescribed in
sections 6213(a) and 7502(a); and (2) respondent did not issue to
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petitioner a notice of determination concerning collection
actions that would allow petitioner to invoke the Court’s
jurisdiction under sections 6320 and/or 6330.1 As discussed in
detail below, we shall grant respondent’s motion to dismiss, as
supplemented.
Background
The record establishes and/or the parties do not dispute the
following:
A. Notice of Deficiency
On February 9, 2000, respondent mailed to petitioner a
notice of deficiency. In the notice of deficiency, respondent
determined deficiencies in petitioner’s Federal income taxes for
1996, 1997, and 1998 in the amounts of $73,516, $3,619, and
$4,549, respectively. Respondent also determined that petitioner
was liable for accuracy-related penalties under section 6662(a)
for 1996 and 1997 in the amounts of $14,703.20 and $723.80,
respectively.
The notice of deficiency was issued by the Internal Revenue
Service (IRS) District Director in Cincinnati, Ohio. The notice
of deficiency was signed “C. Ashley Bullard by BL”. At the time
that the notice of deficiency was issued, C. Ashley Bullard was
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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the IRS District Director in Cincinnati, Ohio.2
Petitioner did not file a petition for redetermination with
the Court within the 90-day period prescribed in section 6213(a).
Consequently, on July 3, 2000, respondent assessed the determined
deficiency and accuracy-related penalty for 1997, as well as
statutory interest. On August 7, 2000, respondent assessed the
determined deficiency and accuracy-related penalty for 1996, as
well as statutory interest. Presumably, respondent also assessed
the determined deficiency and accuracy-related penalty for 1998,
but that year is not part of the present case.
B. Notice of Federal Tax Lien
On March 9, 2001, respondent sent to petitioner, by
certified mail, a Notice of Federal Tax Lien Filing and Your
Right to a Hearing Under IRC 6320 (the notice required by section
6320). The notice required by section 6320 listed petitioner’s
unpaid tax liabilities for 1996 and 1997. Three days later, on
March 12, 2001, respondent filed a Notice of Federal Tax Lien
with the Recorder of Mercer County in Celina, Ohio, with regard
to petitioner’s unpaid tax liabilities for 1996 and 1997. Brenda
McCullough, Acting Technical Support Group Manager responsible
for collection matters, authorized the issuance of the notice
required by section 6320 and the filing of the Notice of Federal
2
The record does not definitively reveal “BL’s” identity.
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Tax Lien.3 At that time, Ms. McCullough was classified as a GS-
14 employee. Petitioner received the notice required by section
6320.
C. Final Notice of Levy
On May 7, 2001, respondent mailed to petitioner, by
certified mail, a Final Notice–Notice of Intent to Levy and
Notice of Your Right to a Hearing (final notice of intent to
levy) under section 6330 in respect of petitioner’s unpaid tax
liabilities for 1996 and 1997. The final notice of intent to
levy, which was not signed, was issued by Revenue Officer John
Stetsko; the final notice identified Mr. Stetsko as the “person
to contact” and provided his contact telephone number and
employee identification number. At that time, Mr. Stetsko was
classified as a GS-12 employee and a GS-1169 series revenue
officer. Petitioner received the final notice of intent to levy
on May 12, 2001.
D. Petitioner’s Request for a Hearing
On June 18, 2001, petitioner filed with respondent a Request
for a Collection Due Process Hearing in respect of his unpaid tax
liabilities for 1996 and 1997. Petitioner’s Request for a Due
3
In authorizing the issuance of the notice required by
section 6320 and the filing of the Notice of Federal Tax Lien,
Ms. McCullough acted at the request of Group Manager Robert
Winship. As a group manager, Mr. Winship was the supervisor of
John Stetsko, a revenue officer who was assigned petitioner’s
account for collection. See infra C.
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Process hearing expressly referenced the final notice of intent
to levy.
E. The Appeals Office Hearing
On January 16, 2002, petitioner attended an administrative
hearing conducted by an Appeals officer at the IRS Appeals Office
in Toledo, Ohio.
At the start of the hearing, the Appeals officer stated that
because petitioner’s request for an administrative hearing was
received more than 30 days after the issuance of the final notice
of intent to levy (and, a fortiori, more than 30 days after the
issuance of the notice required by section 6320), the hearing
would be conducted as an “equivalent” hearing.
During the hearing, petitioner requested that the Appeals
officer verify that the persons who issued the final notice of
intent to levy and the notice required by section 6320 and who
filed the Notice of Federal Tax Lien were all authorized to do
so. Petitioner also questioned the validity of the final notice
of intent to levy because it was not signed.
F. Respondent’s Decision Letter
On July 12, 2002, the Appeals Office issued to petitioner a
Decision Letter Concerning Equivalent Hearing Under Section 6320
and/or 6330 (the decision letter) with regard to petitioner’s
unpaid tax liabilities for 1996 and 1997. In the decision
letter, the Appeals Office concluded: “The collection actions,
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filing the notice of Federal Tax Lien, and proposed enforcement
actions, including levies, are upheld.”
G. The Petition
On August 15, 2002, petitioner filed with the Court a
petition challenging (1) respondent’s deficiency determinations
for the taxable years 1996 and 1997 as set forth in the notice of
deficiency dated February 9, 2000, and (2) the decision letter
dated July 12, 2002.4 The petition includes a number of
attachments, including a copy of the notice of deficiency, which
is stamped “REFUSED FOR FRAUD F.R.C.P. 9(b)”. The petition also
includes statements indicating that petitioner is challenging the
validity of the notice of deficiency.5 With regard to the
decision letter dated July 12, 2002, the petition states in
pertinent part:
Because the final notice of intent to levy * * * sent
to Petitioner was not sent by the Secretary or his
authorized delegate, even though petitioner’s appeal
was filed after the 30 day time period, it is still
timely, and the Appeals Office determination to only
grant petitioner an equivalency hearing was in error.
4
At the time that the petition was filed, petitioner
resided in Celina, Ohio.
5
The petition states in pertinent part: “Exhibit A: note
that deficiency notice is not signed by Secretary”; and “no
notice of deficiency was sent by the Secretary or his authorized
delegate”.
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H. Respondent’s Motion To Dismiss
As stated, respondent filed a Motion to Dismiss for Lack of
Jurisdiction. Respondent contends that the Court lacks
jurisdiction on the grounds that: (1) The petition was not timely
filed with regard to the notice of deficiency dated February 9,
2000; and (2) respondent did not issue to petitioner a notice of
determination concerning collection actions under sections 6320
or 6330. Petitioner filed a notice of objection to respondent’s
motion.
Pursuant to notice, this matter was called for hearing at
the Court’s motions session in Washington, D.C. Counsel for
respondent appeared at the hearing and offered argument in
support of respondent’s motion to dismiss. Although there was no
appearance by or on behalf of petitioner at the hearing,
petitioner filed with the Court a written statement pursuant to
Rule 50(c).
After the hearing, the Court issued Orders directing
respondent to file supplements to his motion to dismiss.
Respondent complied with the Court’s Orders.
Discussion
The Tax Court is a court of limited jurisdiction. We may
exercise jurisdiction only to the extent expressly authorized by
statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976).
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1. The Court’s Jurisdiction To Redetermine a Deficiency
The Court's jurisdiction to redetermine a deficiency depends
on the issuance of a valid notice of deficiency and a timely
filed petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C.
22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147
(1988). Section 6212(a) expressly authorizes the Commissioner,
after determining a deficiency, to send a notice of deficiency to
the taxpayer by certified or registered mail. The taxpayer, in
turn, has 90 days (or 150 days if the notice is addressed to a
person outside of the United States) from the date the notice of
deficiency is mailed to file a petition in this Court for a
redetermination of the deficiency. Sec. 6213(a). Pursuant to
section 7502(a), a timely mailed petition will be treated as
though it were timely filed.
The record shows that respondent mailed the notice of
deficiency in question to petitioner on February 9, 2000.
However, the petition in this case was not filed until August 15,
2002-–over a year and a half after the mailing of the notice of
deficiency. It follows that the petition was not filed within
the 90-day statutory period under section 6213(a).
Petitioner’s only contention is that the notice of
deficiency is invalid because it was not signed by the Secretary
or an authorized delegate. Petitioner’s argument is meritless.
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The notice of deficiency in question was issued by the IRS
District Director in Cincinnati, Ohio, and was signed “C. Ashley
Bullard [the IRS District Director in Cincinnati, Ohio] by BL”.
It is well settled that the Secretary or his delegate may issue
notices of deficiency. Secs. 6212(a), 7701(a)(11)(B) and
(12)(A)(i). The Secretary’s authority to issue notices of
deficiency has been delegated to District Directors and to
Directors of IRS Service Centers. See Nestor v. Commissioner,
118 T.C. 162, 165 (2002), and cases cited therein. Moreover,
there is no requirement that a notice of deficiency be signed.
Sec. 6212; Pendola v. Commissioner, 50 T.C. 509, 513-514 (1968);
Elmore v. Commissioner, T.C. Memo. 2003-123; Fox v. Commissioner,
T.C. Memo. 1993-277 n.4, affd. without published opinion 69 F.3d
543 (9th Cir. 1995).
Consistent with the foregoing, we reject petitioner’s
contention that the notice of deficiency dated February 9, 2000,
is invalid. We shall grant that part of respondent’s motion that
moves to dismiss for lack of jurisdiction as to the notice of
deficiency.
2. The Court’s Jurisdiction To Review Collection Actions
Sections 6320 and 6330 generally provide that the
Commissioner must give a taxpayer notice that a Federal tax lien
has been filed and notice that the Commissioner intends to levy
on the taxpayer’s property and offer the taxpayer an opportunity
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for an administrative review of those matters (in the form of an
Appeals Office hearing). If the taxpayer is dissatisfied with an
Appeals Office determination regarding a collection action, the
taxpayer may seek judicial review of the administrative
determination in the Tax Court or Federal District Court, as
appropriate. See Davis v. Commissioner, 115 T.C. 35, 37 (2000);
Goza v. Commissioner, 114 T.C. 176, 179 (2000).
Sections 6320(a) and 6330(a) provide in pertinent part that
the Secretary shall notify a person in writing of his or her
right to an Appeals Office hearing regarding (1) a notice
required by section 6320 or (2) a final notice of intent to levy
by, among other methods, mailing such notice by certified or
registered mail to the person’s last known address. Further,
sections 6320(a)(3)(B) and 6330(a)(3)(B) provide that the
prescribed notification shall explain that the person has the
right to request an Appeals Office hearing during a specified 30-
day period.
Where the Appeals Office issues a determination letter to a
taxpayer following an administrative hearing regarding a notice
required by section 6320 and/or a final notice of intent to levy,
sections 6320(c) and 6330(d)(1) provide that the taxpayer shall
have 30 days following the issuance of such determination letter
to file a petition for review with the Tax Court or Federal
District Court, as appropriate. See Offiler v. Commissioner, 114
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T.C. 492, 498 (2000). We have held that this 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 Sarrell v. Commissioner, 117 T.C. 122,
125 (2001); Offiler v. Commissioner, supra at 498.
The record shows that respondent sent petitioner (1) a
notice required by section 6320 on March 9, 2001, and (2) a final
notice of intent to levy on May 7, 2001. However, petitioner did
not file his request for an administrative hearing with
respondent until June 18, 2001. After concluding that petitioner
had failed to file his request for an administrative hearing
within the 30-day period prescribed in section 6330(a)(2) and
(a)(3)(B), the Appeals officer informed petitioner that
petitioner would be offered an equivalent hearing as opposed to
the administrative hearing contemplated by section 6330. See
Craig v. Commissioner, 119 T.C. 252, 258 (2002) (describing the
genesis for equivalent hearings). Following the hearing, the
Appeals Office issued to petitioner a decision letter stating
that the proposed collection actions were appropriate.
Respondent cites Kennedy v. Commissioner, 116 T.C. 255
(2001), in support of his motion to dismiss that part of the
petition challenging the decision letter dated July 12, 2002. In
Kennedy v. Commissioner, supra, we held, under similar
circumstances, that a decision letter issued by an Appeals Office
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following an equivalent hearing did not constitute a notice of
determination under section 6330(d), and, therefore, the decision
letter did not provide a basis for the taxpayer to invoke this
Court’s jurisdiction. See Moorhous v. Commissioner, 116 T.C.
263, 270-271 (2001).
Petitioner concedes in his petition that his request for an
administrative hearing was not filed with respondent within the
30-day period prescribed in section 6330(a). Petitioner
nevertheless contends that the Appeals Office erred in conducting
an equivalent hearing, as opposed to an administrative hearing
under section 6330, on the ground the final notice of intent to
levy was invalid because it was not signed by the Secretary or an
authorized delegate. We disagree.
It is well settled that the Secretary or his delegate
(including the Commissioner) may issue a notice required by
section 6320 or a final notice of intent to levy. Secs. 6320(a),
6330(a), 7701(a)(11)(B) and (12)(A)(i), 7803(a)(2); see Craig v.
Commissioner, 119 T.C. 252, 263 (2002); Wilson v. Commissioner,
T.C. Memo. 2002-242; secs. 301.6320-1(a)(1), 301.6330-1(a)(1),
301.7701-9, Proced. & Admin. Regs. The Commissioner’s authority
to file a notice of Federal tax lien and/or issue a final notice
of intent to levy has been delegated to a host of Internal
Revenue Service personnel, including (in the case of Federal tax
liens) various managers responsible for collection matters and
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GS-9 and above revenue officers and (in the case of levies on
property in the hands of third parties) GS-9 and above revenue
officers. See Delegation Order No. 191 (Rev. 2; Oct. 1, 1999)
(Rev. 3; June 11, 2001), pertaining to levies; Delegation Order
No. 196 (Rev. 4; Oct. 4, 2000), pertaining to liens. Consistent
with these delegations of authority, the Notice of Federal Tax
Lien and the notice required by section 6320, which were
initiated by Revenue Officer John Stetsko and authorized by
Acting Technical Support Group Manager Brenda McCullough, and the
final notice of intent to levy, which was issued by Revenue
Officer Stetsko, are valid. Finally, in connection with the
foregoing, we observe that there is no statutory requirement that
a final notice of intent to levy be signed. Cf. Pendola v.
Commissioner, 50 T.C. 509, 513-514 (1968) (a notice of deficiency
need not be signed in order to be valid); Fox v. Commissioner,
T.C. Memo. 1993-277 n.4 (same), affd. without published opinion
69 F.3d 543 (9th Cir. 1995); Elmore v. Commissioner, T.C. Memo.
2003-123 (same for notice of determination to proceed with levy).
Consistent with the preceding discussion, we conclude that
we lack jurisdiction in this case for the reasons set forth in
respondent’s motion to dismiss, as supplemented.
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In order to give effect to the foregoing,
An order granting respondent's
motion to dismiss for lack of
jurisdiction, as supplemented,
will be entered.