125 T.C. No. 7
UNITED STATES TAX COURT
HERBERT AND ROSALIE CLARK, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3082-05L. Filed September 26, 2005.
R issued a notice of levy on Ps’ State tax refund
to collect unpaid assessed additions to tax. After Ps
requested a hearing under sec. 6330, I.R.C., on the
appropriateness of the levy, R determined that the levy
was appropriate.
Held: The Court has jurisdiction under sec.
6330(d), I.R.C., to review R’s determination regarding
the levy upon Ps’ State tax refund.
Jeffrey E. Rattner and Steve Mather, for petitioners.
Elaine T. Fuller, for respondent.
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OPINION
LARO, Judge: Petitioners petitioned the Court under section
6330(d) to review a determination of the Commissioner’s Office of
Appeals (Appeals) sustaining respondent’s levy upon their State
tax refund.1 Respondent made the levy to collect additions to
tax assessed as to petitioners’ 1997 Federal income tax. The
sole issue in this Opinion is whether the Court has jurisdiction
to review respondent’s determination as to the levy upon
petitioners’ State tax refund. We hold that the Court has the
requisite jurisdiction.
Background
Petitioners filed their 1997 Federal income tax return
untimely. Upon receipt of the return, respondent assessed the
tax shown on the return and related additions to tax for failure
to file timely, failure to pay timely, and failure to make
estimated tax payments under sections 6651(a)(1) and (2) and
6654, respectively. On November 17, 2003, respondent issued to
petitioners a notice of levy on their State tax refund to collect
their unpaid assessed additions to tax for 1997. Following
petitioners’ timely request for a hearing under section 6330 as
1
Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Petitioners
resided in Beverly Hills, California, when their petition was
filed.
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to the levy, Appeals sustained the levy through a notice of
determination.
Discussion
We decide whether the Court has jurisdiction under section
6330(d) to review the determination of Appeals sustaining the
levy upon petitioners’ State tax refund. Although neither party
has contested our jurisdiction, jurisdiction may not be conferred
upon the Court by agreement, see Neely v. Commissioner, 115 T.C.
287, 291 (2000); Naftel v. Commissioner, 85 T.C. 527 (1985), or
through an equitable principle such as estoppel, Am. Fire & Cas.
Co. v. Finn, 341 U.S. 6, 17-18 (1951). Whether the Court has
jurisdiction to decide an issue is a matter that this or an
appellate court may decide at any time. See Raymond v.
Commissioner, 119 T.C. 191, 193 (2002).
Section 6330 was enacted in 1998 to provide taxpayers with
administrative and judicial review of the Commissioner’s
collection actions. Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 746; H.
Conf. Rept. 105-599, at 265-266 (1998), 1998-3 C.B. 755, 1019,
1020. Section 6330(a) provides that the Commissioner must notify
taxpayers of their right to a hearing as to a levy and sets forth
specific rules for the required notice. Section 6330(b) contains
rules relating to the hearing. Section 6330(c) lists the issues
that taxpayers may raise at a section 6330(b) hearing. Section
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6330(d) provides for judicial review of determinations under
section 6330, stating that a taxpayer “may, within 30 days of a
determination under this section, appeal such determination” to
this Court. Section 6330(f) provides that “this section” shall
not apply in the case of a jeopardy levy or a levy on a State tax
refund.
In Dorn v. Commissioner, 119 T.C. 356 (2002), we decided
whether section 6330(f) restricts our jurisdiction under section
6330(d) to review jeopardy levy determinations. We held that it
did not. We concluded that section 6330(f) made the section
6330(a) requirement that a taxpayer be given prelevy notice
inapplicable to jeopardy levies rather than divesting this Court
of judicial review in such cases. Id. at 359. We believe that
similar reasoning applies here with regard to a levy on a State
tax refund. We now hold that the Court has jurisdiction under
section 6330(d) to review respondent’s determination regarding
that levy.
To reflect the foregoing,
An appropriate order will
be issued.