T.C. Memo. 2003-167
UNITED STATES TAX COURT
THOMAS HERRICK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11330-01L. Filed June 9, 2003.
Thomas Herrick, pro se.
Karen Lynne Baker and Louise R. Forbes, 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 ground that respondent did
not issue a notice of determination to petitioner pursuant to
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sections 6320 or 6330.1
As explained in detail below, we shall dismiss this case for
lack of jurisdiction on the ground that petitioner failed to make
a timely request for an administrative hearing and, therefore,
respondent was not obliged to (and did not) issue a notice of
determination to petitioner.
Background
The record reflects and/or the parties do not dispute the
following:
On October 13, 2000, respondent issued to petitioner (by
certified mail) a Final Notice Of Intent To Levy And Notice Of
Your Right To A Hearing (final notice of intent to levy)
concerning petitioner’s unpaid income tax liabilities for the
years 1993, 1994, 1995, and 1996. There is no dispute that the
final notice of intent to levy was mailed to petitioner at his
last known address. Sec. 6330(a)(2)(C). Petitioner actually
received the final notice of intent to levy on October 14, 2000.
The final notice of intent to levy stated in pertinent part: “If
you don’t pay the amount you owe, make alternative arrangements
to pay, or request Appeals consideration within 30 days from the
date of this letter, we may take your property”.
On November 10, 2000, petitioner attempted to contact
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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Revenue Officer Boyd Chivers, the individual identified as the
“Person to Contact” on the final notice of intent to levy, for
the purpose of requesting a 30-day extension of time to file a
request for an Appeals Office hearing. Federal Government
offices were closed on November 10, 2000, in observance of the
Veterans Day holiday. Consequently, petitioner left a voice mail
message for Revenue Officer Chivers requesting a 30-day
extension. On November 13, 2000, Revenue Officer Chivers called
petitioner and informed him that he would be granted a 30-day
extension of time to respond to the final notice of intent to
levy.
On or about December 14, 2000, respondent’s Appeals Office
received from petitioner a Form 12153, Request For A Collection
Due Process Hearing. Petitioner’s request was dated December 12,
2000. The Appeals Office initially informed petitioner that he
would be afforded a “collection due process” hearing under
section 6330. However, the Appeals Office subsequently concluded
that petitioner had failed to file his request for a hearing
within the time prescribed in section 6330, and, therefore, the
Appeals Office granted petitioner an “equivalent hearing”. See
sec. 301.6330-1(i), Proced. & Admin. Regs.
On August 8, 2001, the Appeals Office issued a “decision
letter” to petitioner stating that respondent would proceed with
collection by levy. Respondent’s decision letter stated in
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pertinent part:
Your due process hearing request was not filed within
the time prescribed under Section 6320 and/or 6330.
However, you received a hearing equivalent to [a] due
process hearing except that there is no right to
dispute a decision by the Appeals Office in court under
IRC §§ 6320 and/or 6330.
On September 10, 2001, despite the above-quoted statement in
respondent’s decision letter, petitioner filed with the Court a
Petition For Levy Action Under Code Section 6330(d). In response
to the petition, respondent filed a Motion To Dismiss For Lack Of
Jurisdiction. Respondent asserted that the petition should be
dismissed on the ground that the decision letter that respondent
issued to petitioner does not constitute a notice of
determination sufficient to invoke the Court’s jurisdiction
pursuant to section 6330(d). Petitioner filed an objection to
respondent’s motion to dismiss in which he asserted that his
request for an Appeals Office hearing was timely inasmuch as it
was made within the 30-day extension of time granted by Revenue
Officer Chivers. Respondent filed a Response to petitioner’s
Objection in which he argued that section 6330 does not authorize
respondent to extend the 30-day period within which a taxpayer
may request an Appeals Office hearing. Therefore, respondent
asserted that Appeals Officer Chiver’s statement to petitioner
that he would be granted an extension was ineffective to render
timely petitioner’s request for an Appeals Office hearing.
Pursuant to prior notice, this matter was called for hearing
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at the Court’s motions session in Washington, D.C. There was no
appearance by or on behalf of petitioner at the hearing, nor did
petitioner file a written statement with the Court pursuant to
Rule 50(c), the provisions of which were explained by the Court
in its Order calendaring respondent’s motion for hearing.
Counsel for respondent appeared at the hearing and offered
argument in support of respondent’s motion to dismiss.
Following the hearing, respondent filed a Supplement, a
Second Supplement, and a Third Supplement to his motion to
dismiss.
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, then the Secretary is authorized
to collect such tax by levy upon the person’s property. Section
6331(d) provides that, at least 30 days prior to 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.
Section 6330(a) provides in pertinent part that the
Secretary shall notify a person in writing of his or her right to
an Appeals Office hearing regarding a proposed levy by mailing
such notice by certified or registered mail to such person at his
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or her last known address.
Section 6330(a)(2) provides that the prescribed notice shall
be provided 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. Further, section 6330(a)(3)(B) provides that the
prescribed notice shall explain that the person has the right to
request an Appeals Office hearing during the 30-day period under
paragraph (2).
Where the Appeals Office issues a notice of determination to
the taxpayer following an administrative hearing regarding a levy
action, section 6330(d)(1) provides that the taxpayer will 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 may be appropriate. See Offiler v. Commissioner, 114
T.C. 492, 498 (2000). We have held that the Court’s jurisdiction
under section 6330 depends on the issuance of a valid
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.
On October 13, 2000, respondent mailed to petitioner a final
notice of intent to levy with regard to his unpaid taxes for
1993, 1994, 1995, and 1996. Petitioner received the final notice
of intent to levy on October 14, 2000. Consequently, the 30-day
period within which petitioner was required to file with
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respondent a request for an Appeals Office hearing expired on
Monday, November 13, 2000. See sec. 7503 (dealing with time for
performance of acts where last day falls on Saturday, Sunday, or
legal holiday); see also sec. 301.6330-1(c)(2), Q&A-C3 and Q&A-
C4, Proced. & Admin. Regs.; cf. sec. 301.6320-1(c)(2), Q&A-C3 and
Q&A-C4, Proced. & Admin. Regs.
Petitioner contends that the 30-day period did not expire on
November 13, 2000, because he was granted an extension by Revenue
Officer Chivers. Respondent concedes that on November 13, 2000,
Revenue Officer Chivers informed petitioner that he was granted a
30-day extension of time to file a request for an Appeals Office
hearing. Petitioner subsequently filed his request for an
Appeals Office hearing with respondent on December 14, 2000.
In Kennedy v. Commissioner, 116 T.C. 255, 262 (2001), we
held that the Commissioner is not authorized to waive the time
restrictions imposed in section 6330. Consistent with Kennedy v.
Commissioner, supra, Revenue Officer Chivers was not authorized
to extend the period within which petitioner was authorized to
file a request for an Appeals Office hearing. It follows that
petitioner’s request for an Appeals Office hearing, filed with
respondent on December 14, 2000, was not timely. See Schake v.
Commissioner, T.C. Memo. 2002-262 (taxpayer’s allegation that he
was given a grace period by Court personnel to file collection
review petition would not serve to extend statutory period for
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filing petition); Grama v. Commissioner, T.C. Memo. 1985-608
(“even if the Commissioner himself had given petitioners a
written agreement purporting to extend the time within which to
file a petition, he has no authority to do so”).
Under the circumstances, the Appeals Office was not obliged
to conduct an administrative hearing as contemplated under
section 6330(b). In lieu of an Appeals Office hearing under
section 6330(b), the Appeals Office granted petitioner a so-
called equivalent hearing. Thereafter, the Appeals Office issued
a decision letter to petitioner stating that respondent would
proceed with collection. The decision letter does not constitute
a notice of determination under section 6330(d), and it does not
provide a basis for petitioner to invoke the Court’s
jurisdiction. See Kennedy v. Commissioner, supra at 263; see
also Moorhous v. Commissioner, 116 T.C. 263, 270 (2001); cf.
Craig v. Commissioner, 119 T.C. 252, 258-259 (2002).
Consistent with the preceding discussion, we hold that the
petition in this case was not filed in response to a notice of
determination sufficient to confer jurisdiction on the Court
under section 6330. Accordingly, we shall grant respondent’s
motion to dismiss, as supplemented.
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To reflect the foregoing,
An appropriate Order Of
Dismissal For Lack Of Jurisdiction
will be entered.