T.C. Memo. 2005-35
UNITED STATES TAX COURT
MICHAEL AND MARION BALICE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5437-04L. Filed February 28, 2005.
Frank J. Marcone (specially recognized), for petitioners.
Kathleen Raup, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: 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)(1)1 or section 7502.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at the time petitioners filed
the petition.
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Background
Petitioners resided in Metuchen, New Jersey, when the
petition in this case was filed.
Petitioners filed late Federal income tax returns for the
taxable years 1989, 1990, 1992, and 1993. After examining
petitioners’ 1989 and 1990 returns, respondent determined
deficiencies for those years. When petitioners failed to
petition this Court within 90 days of the notices of deficiency
issued for 1989 and 1990, respondent assessed the unpaid taxes,
including penalties and interest. Respondent also assessed
unpaid income tax liabilities shown on petitioners’ 1992 and 1993
returns.
On July 30, 2002, respondent issued a notice pursuant to
section 6330(a) with respect to petitioners’ 1989, 1990, 1992,
and 1993 taxable years that informed petitioners of respondent’s
intent to levy and their right to a hearing. In response,
petitioners submitted Form 12153, Request for a Collection Due
Process Hearing (hereinafter section 6330 hearing), dated August
23, 2002. On January 29, 2004, respondent issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 sustaining the proposed levy action. The notice of
determination stated, in relevant part, the following: “If you
want to dispute this determination in court, you must file a
petition with the United States Tax Court for a redetermination
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within 30 days from the date of this letter. * * * The time
limit for filing your petition is fixed by law. The courts
cannot consider your case if you file late.”
On January 29, 2004, respondent sent a copy of the notice of
determination to each petitioner by certified mail addressed to
70 Maple Avenue, Metuchen, New Jersey 08840. On January 30,
2004, the U.S. Postal Service attempted to deliver both letters
and left notices of the attempted delivery at the 70 Maple Avenue
address. On January 31, 2004, the copy of the notice of
determination addressed to petitioner Michael Balice was
delivered, but there is no indication that the copy addressed to
petitioner Marion Balice was ever claimed at the post office or
delivered.
On March 25, 2004, we received and filed a petition for
review of respondent’s determination to proceed with the levy
action. The envelope in which petitioners mailed the petition
was postmarked March 20, 2004. In the petition, petitioners
listed the 70 Maple Avenue address as their current address.
On May 12, 2004, we filed respondent’s motion to dismiss for
lack of jurisdiction, which alleged that the petition was not
filed within the 30-day period prescribed in section 6330(d) or
section 7502. In support of the motion, respondent attached a
postmarked copy of the certified mail list bearing petitioners’
names and address, the date on which the notice of determination
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was mailed to each petitioner, and the article tracking number of
each letter.
On June 2, 2004, we filed petitioners’ objection to
respondent’s motion. Petitioners’ objection contained affidavits
stating under penalty of perjury that they did not receive the
notice of determination until February 20, 2004, and that it was
not sent by certified mail. Petitioners contend that the
petition was timely filed and that respondent should have
produced a signed return receipt from the U.S. Postal Service to
prove the date on which petitioners received the notice of
determination. Petitioners further argue that “the IRS has
already broken the law by denying Petitioners the CDP hearing
mandated by law and there should be no time restraint imposed
upon a victim who is denied due process mandated by statute.”
Respondent filed a reply to petitioners’ objection,
asserting that because a notice of determination in a collection
due process proceeding must be appealed within 30 days of its
issuance in order for the Tax Court to have jurisdiction, the
date on which petitioners claim to have received the notice of
determination is irrelevant to whether the petition was timely
filed. Respondent further argues that the notice of
determination was complete and valid on its face and was
sufficient to start the 30-day period within which petitioners
could appeal the determination.
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This matter was called for hearing at the Court’s trial
session in Philadelphia, Pennsylvania, on September 7, 2004.
Counsel for both parties appeared at the hearing and presented
their positions on the motion to dismiss.
Discussion
Section 6330(a) provides that no levy may be made on any
property or right to property of any person unless the Secretary
has notified such person in writing of the right to a hearing
before the levy is made. When the Appeals Office issues a notice
of determination to a taxpayer following a section 6330 hearing,
the taxpayer has 30 days following the issuance of the notice to
file a petition for review of the determination with the Tax
Court or, if the Tax Court lacks jurisdiction over the underlying
tax liability, with a Federal District Court. Sec. 6330(d).
The procedures authorized by section 6212(a) and (b) for
sending a notice of deficiency apply to the mailing of a notice
of determination issued pursuant to section 6330. Weber v.
Commissioner, 122 T.C. 258, 261-262 (2004). Section 6212(a) and
(b) provides that the Secretary may send a notice of deficiency
by certified mail or registered mail to a taxpayer at the
taxpayer’s last known address. A notice of determination issued
in a collection due process case that is mailed in accordance
with section 6212(a) and (b) is sufficient to start the 30-day
period within which a taxpayer may appeal the determination to
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the Tax Court under section 6330(d). Weber v. Commissioner,
supra at 261-262.
During oral argument on the motion, counsel for petitioners
admitted that petitioners resided at the 70 Maple Avenue address
when respondent mailed the notice of determination, and
petitioners listed it as their current address in their petition.
Moreover, respondent’s postal records establish that the notice
of determination was mailed on January 29, 2004, by certified
mail, to the 70 Maple Avenue address. See id. at 259 & n.3
(postmarked copy of certified mail list sufficient to establish
notice of determination was mailed for purposes of section 6212).
We conclude, therefore, that the notice of determination was
mailed in accordance with section 6212(a) and (b).
The 30-day period for filing an appeal of respondent’s
determination with this Court expired on Monday, March 1, 2004.
See sec. 7503. The petition in this case, however, was mailed to
the Court on March 20, 2004, and was received and filed on March
25, 2004. Consequently, we conclude that the petition was not
timely filed.
Petitioners’ main contention, as we understand it, is that
because the notice of determination was not mailed to them by
certified or registered mail, return receipt requested, the
notice of determination was insufficient to start the 30-day
period for filing a petition. To support their contention,
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petitioners cite section 6330(a)(2), which provides in relevant
part that the written notice informing a taxpayer of his right to
a section 6330 hearing must be given in person, left at the
dwelling or usual place of business of such person, or sent by
certified or registered mail, return receipt requested, to the
taxpayer’s last known address.
Petitioners’ reliance on section 6330(a)(2) is misplaced.
The requirements of section 6330(a)(2) apply to a notice before
levy, which is the notice that advises a taxpayer of his right to
request a section 6330 hearing. Section 6330(a)(2) does not
apply to a notice of determination issued by the Appeals Office
after a section 6330 hearing. In the absence of any provision in
section 6330 requiring a notice of determination to be issued in
a particular way, the issuance of a notice of determination under
section 6330 is adequate if it is done in accordance with section
6212, which contains no provision requiring a U.S. Postal Service
return receipt. Section 6212 authorizes the Commissioner to mail
a deficiency notice by certified mail or registered mail to the
taxpayer’s last known address. The record with respect to
respondent’s motion demonstrates that the section 6212
requirements were met. We conclude, therefore, that the notice
of determination mailed to petitioners on January 29, 2004, was
sufficient to start the 30-day period for filing a petition in
this Court.
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We also reject petitioners’ argument that the petition
should be considered timely filed because they did not receive
the notice of determination until February 20, 2004. If a notice
of determination issued pursuant to section 6330 is properly
mailed to a taxpayer’s last known address by certified mail, the
date on which the taxpayer actually receives the notice of
determination is irrelevant in determining whether a petition
appealing that determination was filed within the 30-day period
prescribed in section 6330(d). Weber v. Commissioner, supra at
263. Moreover, we note that petitioners actually received the
notice by February 20, 2004, approximately 10 days before the 30-
day filing deadline. The notice advised petitioners of the time
limit to file a timely petition, as required by section 6330(d),
and they failed to meet it.
The Court’s jurisdiction is statutorily mandated under
section 6330, and we may not extend the 30-day period for filing
a petition in a levy action where a valid notice of determination
has been issued. Weber v. Commissioner, supra at 263. Because
we lack jurisdiction to review respondent’s determination to
proceed with the proposed levy action, we do not address
petitioners’ argument that respondent failed to comply with the
formal procedures, as set forth in section 6330(b) and (c), for
conducting a section 6330 hearing.
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In light of the foregoing, we shall grant respondent’s
motion to dismiss this case for lack of jurisdiction.
An appropriate order
of dismissal for lack of
jurisdiction will be entered.