T.C. Summary Opinion 2003-76
UNITED STATES TAX COURT
MARION WARREN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18558-02S. Filed June 17, 2003.
Marion Warren, pro se.
Nancy E. Hooten, for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463.1 The decision to be entered is
not reviewable by any other court, and this opinion should not be
cited as authority.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at the time that the petition
was filed, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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This matter is before the Court on respondent’s Motion to
Dismiss for Lack of Jurisdiction on the ground that the petition
was not filed within the time prescribed by section 6330(d) or
section 7502. As explained below, we shall grant respondent’s
motion to dismiss.
Background
On Friday, October 18, 2002, the Internal Revenue Service
Appeals Office in Atlanta, Georgia, issued to petitioner a Notice
Of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 regarding petitioner’s Federal tax liabilities
for 1988 and 1991. The notice of determination, which was dated
Monday, October 21, 2002, was sent to petitioner by certified
mail addressed to him at P.O. Box 692, Savannah, Georgia 31402
(the P.O. box address). Petitioner actually received the notice
of determination no later than Monday, October 28, 2002.
At the time that respondent mailed the notice of
determination, petitioner resided at 1437 Belaire Drive,
Savannah, Georgia 31415 (the street address). Generally,
petitioner used his P.O. box address, rather than his street
address, for business purposes, including his dealings with the
Internal Revenue Service. For example, on Form 12153, Request
for a Collection Due Process Hearing, petitioner listed his
address as the P.O. box address.
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The notice of determination informed petitioner that if he
wanted to dispute respondent’s determination in court, then he
must file a petition with this Court “within 30 days from the
date of this letter.”
On November 13, 2002, petitioner purchased a U.S. Postal
Service Postal Money Order in the amount of $60. The Postal
Money Order was payable to “United States Tax Court” and was
purchased to pay the filing fee for commencing a lien or levy
action in this Court. See Rule 331(c). Petitioner listed his
address on the Postal Money Order as the P.O. box address.
On Friday, November 29, 2002, the Court received and filed a
Petition for Lien or Levy Action Under Code Section 6320(c) or
6330(d). The petition, which is undated, arrived at the Court in
a properly addressed envelope that identifies the P.O. box
address as the return address.2 Significantly, the envelope,
which was mailed to the Court by U.S. Postal Service Express
Mail, bears a legible postmark date of Wednesday, November 27,
2002.3
Shortly after this case was calendared for trial, respondent
moved to dismiss the petition for lack of jurisdiction on the
2
In contrast, petitioner used his street address on the
petition itself.
3
We note that Thursday, Nov. 28, 2002, was Thanksgiving
Day, a legal holiday in the District of Columbia, see Rule
25(b), and that there was no mail delivery to the Court on that
day.
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ground that the petition was not timely filed. Thereafter,
respondent’s motion was called for hearing at the Court’s trial
session in Atlanta, Georgia. Counsel for respondent appeared at
the hearing and offered argument in support of the motion to
dismiss. Petitioner appeared and argued against the motion.
Discussion
When the Appeals Office issues a notice of determination to
a taxpayer following an administrative hearing regarding a final
notice of intent to levy, section 6330(d)(1) provides that the
taxpayer will have 30 days following the issuance of such notice
to file a petition for review with the Tax Court or, if the Tax
Court does not have jurisdiction over the underlying tax
liability, with a Federal District Court. See Offiler v.
Commissioner, 114 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 determination letter and the filing of a
timely petition for review. See Sarrell v. Commissioner, 117
T.C. 122, 125 (2001); Moorhous v. Commissioner, 116 T.C. 263, 269
(2001); Offiler v. Commissioner, supra at 498; see also Rule
330(b).
Petitioner has not challenged the validity of the notice of
determination. We observe that the notice was mailed to the same
address as that listed by petitioner on: (1) His Request for a
Collection Due Process Hearing, (2) his Postal Money Order used
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to pay the filing fee, and (3) the envelope bearing the petition.
Accordingly, it appears that the notice of determination was
mailed to petitioner at his last known address. See sec.
6330(a)(2)(C). Regardless, petitioner actually received the
notice of determination no later than Monday, October 28, 2002,
which was sufficient time to file a timely petition with this
Court, as evidenced by the fact that petitioner purchased the
Postal Money Order on November 13, 2002. Cf. Mulvania v.
Commissioner, 81 T.C. 65, 67-68 (1983) (an erroneously addressed
notice of deficiency is nevertheless valid if the taxpayer
receives actual notice of the Commissioner’s determination in a
timely fashion; i.e., without prejudicial delay); Estate of
Greenwood v. Commissioner, T.C. Memo. 2003-98 (same). Therefore,
under these circumstances, the sole issue for decision is whether
the petition was timely filed.
The record in this case demonstrates that the petition was
not filed within the 30-day period prescribed in section
6330(d)(1)(A). Here we compute the 30-day period by reference to
the date appearing on the notice of determination (Monday,
October 21, 2002) rather than the earlier date on which the
notice was deposited with the Postal Service (Friday, October 18,
2002). See Loyd v. Commissioner, T.C. Memo. 1984-172 (date
appearing on the notice of deficiency was the date of mailing for
purposes of section 6213(a)); Jones v. Commissioner, T.C. Memo.
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1984-171 (same); see also Lundy v. Commissioner, T.C. Memo. 1997-
14, discussing the various possible dates that a deficiency
notice might be deemed to be mailed.
Using Monday, October 21, 2002, as the date of mailing of
the notice of determination, then the 30-day period for timely
filing a petition with this Court expired on Wednesday, November
20, 2002, which date was not a legal holiday in the District of
Columbia. However, the petition was not received and filed by
the Court until Friday, November 29, 2002, the 39th day after the
mailing of the notice of determination. Moreover, the envelope
in which the petition was received at the Court bears a postmark
date of Wednesday, November 27, 2002, the 37th day after the
mailing of the notice of determination. See sec. 7502(a). It
follows that the petition was late filed and that we must
therefore dismiss this case for lack of jurisdiction. See McCune
v. Commissioner, 115 T.C. 114 (2000).
Notwithstanding the fact that petitioner cannot pursue his
case in this Court, petitioner may perhaps have a legal remedy.
In this regard, we observe that the October 21, 2002, notice of
determination did not sustain respondent’s proposed levy action
because, as of the date of the notice, petitioner’s tax
liabilities for the years in issue had been fully paid,
principally through the application of setoffs made pursuant to
section 6402(a). See Bullock v. Commissioner, T.C. Memo. 2003-5
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(an offset under section 6402 does not constitute a levy action).
If petitioner thinks that he has overpaid his liabilities, as he
has alleged in the petition, then it is possible that he may be
able to file a claim for refund with the Internal Revenue Service
and, if the claim is denied, sue for a refund in the Federal
District Court or the Court of Federal Claims. See McCormick v.
Commissioner, 55 T.C. 138, 142 (1970).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
An order of dismissal for
for lack of jurisdiction will
be entered.