T.C. Memo. 2004-152
UNITED STATES TAX COURT
WANDA P. CHOCALLO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12695-02L. Filed June 28, 2004.
Wanda P. Chocallo, pro se.
Russell K. Stewart, for respondent.
MEMORANDUM OPINION
RUWE, Judge: The issues before the Court concern
respondent’s motion to dismiss this section 6330 case as moot and
petitioner’s “Motion For Sanctions, Contempt and For Other
Relief”, as supplemented.
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Background
Petitioner filed an action under section 6330(a) contesting
a levy wherein respondent had collected $21,411.27 for
petitioner’s purported 1998 unpaid tax liability.1 Pursuant to
section 6330, the Commissioner is required to send a written
notice to the taxpayer of her right to a hearing2 before a levy
is made upon a taxpayer’s property “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.”3 Sec. 6330(a)(2). The
notice, inter alia, informs the taxpayer that she is entitled to
“request a hearing” prior to the proposed levy. Sec.
6330(a)(3)(B). Upon timely request, the hearing is to be held by
an impartial officer with the Commissioner’s Appeals Office.
Sec. 6330(b). The statute articulates those matters to be
considered at the hearing, including the requirement that the
Appeals officer obtain verification that the procedural
requirements “of any applicable law or administrative procedure”
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code currently in effect, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
2
Respondent refers to the notice of intent to levy as the
“Collection due process hearing notice” or CDP notice, the
terminology which respondent uses in his regulations. See sec.
301.6330-1(a)(1), Proced. & Admin. Regs.
3
Generally, the CDP notice is sent to a taxpayer by
certified or registered mail, return receipt requested, to the
taxpayer’s “last known address”. Sec. 6330(a)(2).
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have been met. Sec. 6330(c)(1). Thereafter, the Appeals officer
is to make a determination whether to proceed with the proposed
levy action and embodies that determination in a notice sent to
the taxpayer. Sec. 6330(c); sec. 301.6330-1(e), Proced. & Admin.
Regs. Within 30 days of the determination, the taxpayer may seek
judicial review with either this Court or the District Court,
whichever is appropriate. Sec. 6330(d); sec. 301.6330-1(f),
Proced. & Admin. Regs. During the proceedings, as provided in
section 6330, the Commissioner is precluded from making the
proposed levy absent a jeopardy determination. Secs. 6330(e)(1)
and (f), 6331(a).4 Furthermore, if this Court has jurisdiction,
we are empowered to enjoin any such levy actions. Sec.
6330(e)(1).
Respondent moved to dismiss for lack of jurisdiction on the
basis of respondent’s allegation that he had not issued a notice
of determination. We denied respondent’s motion to dismiss for
lack of jurisdiction in an Order dated November 12, 2003. In
that Order we found that petitioner had received a
“determination” within the contemplation of section 6330 and had
filed a timely petition. We noted various discrepancies in
respondent’s transcript of petitioner’s account for her 1998 tax
year and concluded that the determination was issued and the levy
had been made prior to giving petitioner an opportunity to
4
No jeopardy determination was made in this case.
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contest the propriety of the levy before an Appeals officer. We
ordered that the amount collected by levy be returned to
petitioner with interest. On December 4, 2003, respondent
complied with this Order by reimbursing petitioner for $21,411.27
that had been collected by levy from petitioner’s bank account
plus interest thereon of $1,524.72.5
In our Order of November 12, 2003, we also ordered that
petitioner be given a hearing before an Appeals officer in order
to determine whether the levy that respondent wanted to make was
appropriate. In so doing, we suggested that the Appeals officer
review certain facts that were presented during the previous
hearings regarding respondent’s motion to dismiss for lack of
jurisdiction. These facts suggested the possibility that the
1998 tax liability that respondent was trying to collect by levy
had been improperly assessed.
On or around December 9, 2003, respondent reported that he
had determined that the 1998 income tax liability that he was
trying to collect by levy had been improperly assessed and that
he would not pursue any levy action against petitioner for any
unpaid income taxes for 1998. Respondent also reported that he
was returning additional amounts previously collected from
petitioner for her 1998 liability that had been improperly
5
See infra p. 5, table note 1.
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assessed. These amounts were refunded to petitioner in the
following amounts:
Date Amount
1
1/23/04 $23,626.88
1/29/04 2,041.31
1
Respondent calculated this amount as follows:
Description Amount
Petitioner’s payment with 1998 return $40,286.59
Less: 1998 tax assessed on return (7,450.00)
Less: 1998 late payment penalty (223.50)
Less: 1998 interest (304.86)
Less: Amount applied to 1995 outstanding
liability (7,937.81)
Less: Amount applied to 1994 outstanding
liability (4,639.77)
Subtotal 19,730.65
Additional payment by petitioner 11/9/01 667.40
1999 overpayment credit 368.64
Subtotal 20,766.69
Less: Amount applied to 2000 outstanding
liability (753.10)
Less: Amount applied to 2001 outstanding
liability (829.56)
Total 19,184.03
In his initial processing of petitioner’s refund check of Jan.
23, 2004, respondent failed to consider the interest of $1,524.72
paid to petitioner when the levy proceeds were refunded on Dec.
4, 2003. Thus, respondent made an additional deduction of
$1,524.72 from the principal amount of $19,184.03 to be paid, so
that the final amount of the check issued to petitioner on Jan.
23, 2004 was $23,626.88, $17,659.31 of principal and $5,967.57 of
accrued interest.
As a result of respondent’s determinations and actions,
respondent moved to dismiss this section 6330 case as being moot.
Petitioner then filed her “Motion For Sanctions, Contempt and For
Other Relief”. On April 1, 2004, petitioner filed a
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“Supplemental Motion for Sanctions, Contempt and For Other
Relief”.
Discussion
Our jurisdiction under section 6330 is generally limited to
reviewing whether a proposed levy action is proper.6 Respondent
has stated that the levy he proposed (and improperly made) is no
longer being pursued. The amounts that respondent collected by
levy have been returned with interest. In addition, amounts
previously collected regarding petitioner’s 1998 income tax
liability have been refunded or credited.7 Our jurisdiction
under section 6330 is limited to reviewing the proposed levy
action regarding petitioner’s 1998 income tax liability. Since
respondent now agrees that there is no unpaid 1998 income tax
liability upon which a levy could be based, we agree with
respondent that the issue regarding the levy is moot.
The gravamen of petitioner’s motion, as supplemented, is
that she “has been the victim of IRS tyranny, terrorism,
thievery, fraud, deceit, cunning craft and dishonesty.”
6
Our jurisdiction is predicated upon sec. 6330(d)(1)(A).
See Davis v. Commissioner, 115 T.C. 35, 37 (2000); Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 179 (2000).
7
Petitioner appears to argue that she was entitled to funds
that respondent credited to other outstanding tax liabilities.
Sec. 6402(a) permits the Secretary to credit any overpayment
“against any liability in respect of an internal revenue tax on
the part of the person who made the overpayment” and requires the
Secretary to refund any balance to that taxpayer.
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Petitioner requests that respondent’s employees who handled her
case be criminally prosecuted for various alleged offenses. We
have no jurisdiction to consider such actions. Petitioner also
claims other monetary compensation including damages in the sum
of $1 million for alleged wrongs committed by respondent’s
employees. Petitioner does not cite or rely upon any specific
statute as a basis for these claims, and we generally have no
jurisdiction over such matters.8 If petitioner’s $1 million
claim for damages were meant to be predicated upon section 7433,
which provides for up to $1 million in civil damages for certain
unauthorized collection actions, we note that such claims must be
brought in a district court of the United States.
Since petitioner has received all the relief to which she is
entitled under section 6330, we shall grant respondent’s motion
to dismiss this case as moot. We shall also deny petitioner’s
8
Petitioner has not explicitly claimed administrative or
litigation costs pursuant to sec. 7430 even though she was
specifically advised by the Court that if she wished to make such
claim she would have to provide the facts and information
required by Rule 231. Petitioner has not provided the
information required by Rule 231.
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“Motion For Sanctions, Contempt and For Other Relief”, as
supplemented.
An appropriate order and order
of dismissal will be entered
granting respondent’s Motion to
Dismiss on the Ground of Mootness
and denying petitioner’s Motion for
Sanctions, Contempt and For Other
Relief, as supplemented.