T.C. Memo. 2005-25
UNITED STATES TAX COURT
RICHARD AND MABEL KELBY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13268-03L. Filed February 16, 2005.
P appealed a sec. 6330,1 I.R.C., determination
from R’s Appeals Office. R filed a motion for remand
to Appeals and a motion for continuance of trial. The
Court granted both of R’s motions and retained
jurisdiction over the case. P objected to the
retention of jurisdiction by the Court and requested
that the Notice of Determination be vacated.
Held: The Court may retain jurisdiction over the
case while on remand.
Held, further, we shall not invalidate the Notice
of Determination.
William E. Taggart, Jr., for petitioners.
Rebecca Duewer-Grenville and Paul R. Zamolo, for respondent.
1
All section references are to the Internal Revenue Code
in effect for the years in issue.
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MEMORANDUM OPINION
VASQUEZ, Judge: The controversy before us arises out of
petitioners’ opposition to respondent’s motion to remand the case
to the Appeals Office.
Background
On July 30, 2002, respondent issued a Notice of Federal Tax
Lien filing to petitioners. The lien covered unpaid income tax
for the taxable years 1989, 1993, 1995, 1996, and 1999. On
September 9, 2002, petitioners filed a Form 12153, Request for a
Collection Due Process Hearing, in which they indicated that they
did not believe they owed all of the assessed tax liabilities and
they wanted to file an Offer in Compromise. A Notice of
Determination was sent to petitioners by the Appeals Office which
sustained the lien. On August 11, 2003, petitioners filed a
petition to the Tax Court.
On April 30, 2004, respondent moved that the case be
remanded to the Appeals Office to consider “Petitioners’ Offer in
Compromise and allegations that * * * [petitioners] do not owe a
portion of the assessed tax liabilities.” Respondent
concurrently moved for continuance of trial, removal of the case
from the scheduled trial session, and restoration of the case to
the general trial docket.
On May 5, 2004, the Court granted respondent’s motion for
continuance and motion for remand to the Appeals Office.
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Furthermore, jurisdiction was retained by this Division of the
Court.
In numerous subsequent pleadings, petitioners objected to
the retention of jurisdiction by the Court and requested that the
Notice of Determination be vacated. Petitioners, however, did
not object to remanding the case to the Appeals Office.
Discussion
The power of this Court to remand a case to the Appeals
Office is well established. For example, if a taxpayer is not
afforded a proper opportunity for a hearing under section 6330,
the Court can remand the case to the Appeals Office to hold a
hearing if we “believe that it is either necessary or
productive”. Lunsford v. Commissioner, 117 T.C. 183, 189 (2001)
(Lunsford II).
Petitioner, inter alia, argues that the Court cannot retain
jurisdiction over the case upon remanding the case to the Appeals
Office. We have jurisdiction to determine whether we have
jurisdiction at any time, either before or after a final decision
is entered. Brannon’s of Shawnee, Inc. v. Commissioner, 71 T.C.
108, 111-112 (1978). The jurisdiction of this Court under
“section 6330(d)(1)(A) is established when there is a written
notice that embodies a determination to proceed with the
collection of the taxes in issue, and a timely filed petition.”
Lunsford v. Commissioner, 117 T.C. 159, 164 (2001) (Lunsford I).
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The Court may retain jurisdiction over the case upon remand to
the Appeals Office.
The Court’s retention of jurisdiction upon remand does not
adversely affect the ability of the taxpayer to receive a fair
section 6330 hearing. The Court may include instructions and
explain the purpose of a remand to the Appeals Office. See,
e.g., Keene v. Commissioner, 121 T.C. 8, 19 (2003); Cooley v.
Commissioner, T.C. Memo. 2004-49. Upon remand, the Appeals
Office may further consider the taxpayer’s arguments. See sec.
6330(d)(2); Lunsford II, supra at 189.
Petitioner also argues that the Notice of Determination
should be vacated. We interpret petitioners’ argument that the
Notice should be vacated as a request to invalidate the Notice.
Whether petitioner had:
an appropriate hearing opportunity, or whether the
hearing was conducted properly, or whether the hearing
was fair, or whether it was held by an impartial
Appeals Officer, or whether any of the other
nonjurisdictional provisions of section 6330 were
properly followed, will all be factors that we must
take into consideration under section 6330 in deciding
such cases. But none of these factors should preclude
us from exercising our jurisdiction under section
6330(d), in order to resolve the underlying dispute in
a fair and expeditious manner.
Lunsford I, supra at 164. In this case the Notice of
Determination embodies a determination to proceed with the
collection of the taxes in issue, and the petition was timely.
Accordingly, we shall not invalidate the Notice of Determination.
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In reaching our holding herein, we have considered all
arguments made, and to the extent not mentioned above, we
conclude them to be moot, irrelevant, or without merit.
To reflect the foregoing,
An appropriate order
will be issued.