T.C. Memo. 2007-111
UNITED STATES TAX COURT
DORIS LEE NEWSOME, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21831-05L. Filed April 30, 2007.
Doris Lee Newsome, pro se.
Michelle L. Maniscalco, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: This matter is before us on respondent’s
motions to dismiss for lack of jurisdiction under Rule 53 and for
summary judgment under Rule 121.
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
- 2 -
Respondent’s motion to dismiss is based on the contention
that petitioner’s request for a section 6320 Appeals Office
hearing was untimely.
Respondent’s motion for summary judgment is based on the
contention that petitioner has not raised in her petition any
appropriate issue.
Background
At the time the petition was filed, petitioner resided in
Staten Island, New York.
On December 14, 1995, a nontax judgment of foreclosure was
entered relating to petitioner’s home, and in March of 1996 a
foreclosure sale of petitioner’s home occurred. On June 10,
1998, petitioner was evicted from a subsequent home and later
moved to her current address. At the time, petitioner did not
inform respondent of her current address.
For 1996, petitioner did not timely file an individual
Federal income tax return.
With wage and discharge of indebtedness income (relating to
the above foreclosure sale) reported to respondent by third
parties, respondent prepared for petitioner a substitute 1996
individual Federal income tax return reflecting a total tax
liability of $24,629.
Based on the substitute return prepared by respondent, on
December 22, 1998, respondent mailed to petitioner (at the home
- 3 -
address from which petitioner had been evicted in June of 1998) a
notice of deficiency relating to petitioner’s 1996 Federal income
tax liability reflecting the $24,629 tax deficiency. Petitioner
states that she did not receive this notice of deficiency until
years later.
On May 31, 1999, respondent assessed against petitioner the
above $24,629 1996 tax deficiency.
On November 16, 1999, respondent mailed to petitioner (again
at the home address from which petitioner had been evicted in
June of 1998) a section 6330 levy notice relating to the 1996 tax
deficiency that respondent had assessed. On November 29, 1999,
respondent’s levy notice was returned as undeliverable.
On June 17, 2002, respondent mailed to petitioner at
petitioner’s current address, and petitioner received, a second
section 6330 levy notice relating to petitioner’s 1996 assessed
and unpaid $24,629 tax deficiency. In response thereto,
petitioner contacted respondent and requested a copy of
respondent’s notice of deficiency to petitioner for 1996.
At some point in June or July of 2002, respondent remailed
to petitioner, and petitioner received, a copy of respondent’s
above notice of deficiency to petitioner for 1996.
On June 30, 2002, in response to respondent’s June 17, 2002,
second levy notice relating to petitioner’s 1996 unpaid above tax
- 4 -
deficiency, petitioner requested a section 6330 hearing with
respondent’s Appeals Office.
Respondent’s Appeals Office denied petitioner’s request as
untimely, but petitioner and respondent’s Appeals Office
nevertheless conducted what respondent treated as an equivalent
hearing wherein petitioner and respondent’s Appeals officer
discussed the issue as to the taxability of discharge of
indebtedness income relating to the 1996 foreclosure sale of
petitioner’s home and petitioner’s 1996 Federal income tax
liability. At this hearing, respondent’s Appeals Office invited
petitioner to file her own 1996 individual Federal income tax
return.
On December 23, 2003, respondent mailed to petitioner’s
current address an adverse decision letter relating to the above
hearing. In the letter, the Appeals Office sustained
respondent’s proposed levy and explained that petitioner had been
given an opportunity during the equivalent hearing, and had been
requested, to submit to respondent’s Audit Reconsideration
Program an individual Federal income tax return for 1996 (as well
as other overdue individual Federal income tax returns that
petitioner had not yet filed).
Petitioner did not file an action in this Court or in a
District Court with regard to respondent’s December 23, 2003,
adverse decision letter, in which petitioner might have argued
- 5 -
that the decision letter should be treated as a notice of
determination with respect to which judicial review of the
underlying tax deficiency might have been available.1
On November 4, 2004, respondent filed a notice of Federal
tax lien (NFTL) relating to the $24,629 tax deficiency against
petitioner for 1996 that respondent had assessed. On November 5,
2004, respondent mailed to petitioner at petitioner’s current
address a section 6320 lien notice relating to the above NFTL, in
which respondent indicated a December 13, 2004, deadline for
receipt from petitioner of a section 6320 Appeals Office hearing
request.
In response to respondent’s November 5, 2004, lien notice,
on December 8, 2004, petitioner mailed to respondent by overnight
mail a request for an Appeals Office hearing. On December 9,
2004, respondent received petitioner’s above request.
From January to October 2005, in connection with
respondent’s November 4, 2004, NFTL, respondent held an Appeals
1
Arguably, if respondent’s Nov. 16, 1999, levy notice was
not mailed to petitioner’s last known address, petitioner’s July
8, 2002, request for an Appeals Office hearing should have been
treated as timely, and a regular sec. 6330 Appeals Office hearing
should have been held, not an equivalent hearing. See sec.
301.6330-1(i), Proced. & Admin. Regs. (explaining when an
equivalent hearing is to be held).
In Craig v. Commissioner, 119 T.C. 252 (2002), we treated a
decision letter from an equivalent hearing, which should have
been treated as a regular sec. 6330 hearing, as a notice of
determination for purposes of allowing our review of respondent’s
Appeals Office determination.
- 6 -
Office hearing with petitioner in which petitioner raised only
the issue as to the includability in her income of alleged
discharge of indebtedness income.
On September 13, 2005, petitioner untimely filed with
respondent her 1996 individual Federal income tax return showing
a refund due to petitioner.
On October 21, 2005, respondent mailed to petitioner a
notice of determination sustaining respondent’s NFTL. In the
notice of determination, however, respondent’s Appeals Office
explained that respondent’s Audit Reconsideration Program is
willing to examine petitioner’s untimely filed 1996 individual
Federal income tax return and to make appropriate adjustments, if
any, to petitioner’s tax liability as previously determined by
respondent.
On November 18, 2005, petitioner timely filed the instant
action challenging only respondent’s notice of determination
sustaining respondent’s NFTL relating to the $24,629 1996 tax
deficiency respondent had assessed against petitioner. In her
petition, petitioner raises only the issue as to the
includability in her income for 1996 of discharge of indebtedness
income relating to the foreclosure sale of her home.
- 7 -
Discussion
Motion To Dismiss for Lack of Jurisdiction
Because we may proceed only if we have jurisdiction, Raymond
v. Commissioner, 119 T.C. 191, 193 (2002), we first address
respondent’s motion to dismiss for lack of jurisdiction.
Respondent’s motion to dismiss is based on alleged untimeliness
of petitioner’s request for an Appeals Office hearing relating to
respondent’s November 4, 2004, NFTL.
Generally, our jurisdiction to review respondent’s
collection activity under section 6320 is predicated upon
respondent’s issuance of a notice of determination, a taxpayer’s
timely filed petition, and our jurisdiction over the underlying
type of tax involved. Andre v. Commissioner, 127 T.C. 68, 70
(2006); Inv. Research Associates v. Commissioner, 126 T.C. 183,
187, 191 (2006); Lunsford v. Commissioner, 117 T.C. 159, 161
(2001); Offiler v. Commissioner, 114 T.C. 492, 497-498 (2000);
sec. 301.6320-1(f)(1), Proced. & Admin. Regs.2
Respondent argues that petitioner on December 8, 2004, more
than 30 days after respondent’s November 5 lien notice to
petitioner, untimely requested the section 6320 Appeals Office
hearing and that, due to petitioner’s untimely hearing request,
2
After Oct. 16, 2006, determinations made under secs. 6320
and 6330 are appealable only to the Tax Court regardless of the
underlying type of tax involved. Pension Protection Act of 2006,
Pub. L. 109-280, sec. 855, 120 Stat. 1019.
- 8 -
the hearing that was held with petitioner relating to
respondent’s NFTL should be treated as an equivalent hearing and
that the Court should now treat respondent’s October 21, 2005,
notice of determination only as a nonreviewable decision letter
from an equivalent hearing.
Respondent’s argument confuses the period in which a
taxpayer may timely request an Appeals Office hearing under
section 6320 with the period in which a taxpayer may timely
request an Appeals Office hearing under section 6330. Both
periods are 30 days long. However, the start dates for the two
30-day periods are different.
Under section 6320 relating to an NFTL, the 30-day period in
which a taxpayer may timely request an Appeals Office hearing
begins on the day after the 5th business day after the date on
which the NFTL was filed. Sec. 6320(a)(2) and (3)(B); sec.
301.6320-1(c)(1) and (2), Q&A-C3, Proced. & Admin. Regs.
Under section 6330 relating to a proposed levy on a
taxpayer’s property, the 30-day period in which a taxpayer may
timely request an Appeals Office hearing begins on the day after
the date of mailing by respondent of the proposed levy notice.
Sec. 6330(a)(3)(B); Andre v. Commissioner, 127 T.C. at 71.
Section 301.6320-1(c)(2), Q&A-C3, Proced. & Admin. Regs.,
explains the distinction in these 30-day periods as follows:
- 9 -
Q-C3. When must a taxpayer request * * * [an
Appeals Office] hearing with respect to a * * * [lien
notice] issued under section 6320?
A-C3. A taxpayer must submit a written request
for * * * [an Appeals Office hearing under section
6320] within the 30-day period that commences the day
after the end of the five business day period following
the filing of the NFTL. Any request filed during the
five business day period * * * will be deemed to be
filed on the first day of the 30-day period. The
period for submitting a written request for * * * [an
Appeals Office] hearing with respect to a * * *
[notice] issued under section 6320 is slightly
different from the period for submitting a written
request for * * * [an Appeals Office] hearing * * *
under section 6330. For a * * * [notice] issued under
section 6330, the taxpayer must submit a written
request for [an Appeals Office] hearing within the 30-
day period commencing the day after the date of the
[levy notice]. [Emphasis added.]
Because respondent filed its NFTL on November 4, 2004, and
because the 5th business day after November 4, 2004, was
November 12, 2004 (not taking into account Saturday, November 6,
Sunday, November 7, and Veteran’s Day November 11, 2004), the 30-
day period for petitioner to request an Appeals Office hearing
under section 6320 began the day after November 12, 2004, and
ended on Monday, December 13, 2004 (not taking into account
Sunday, December 12, 2004). Accordingly, petitioner’s
December 8, 2004, request for an Appeals Office hearing in
connection with respondent’s November 4, 2004, NFTL was timely by
5 days.
Based on the above, we need not address the question as to
whether respondent’s Appeals Office’s adverse October 21, 2005,
- 10 -
notice of determination relating to petitioner’s appeal of
respondent’s NFTL would authorize our jurisdiction to review
respondent’s adverse determination even if petitioner’s request
for an Appeals Office hearing were untimely.3
We deny respondent’s motion to dismiss petitioner’s petition
relating to respondent’s November 4, 2004, NFTL.
Motion for Summary Judgment
When no material fact remains at issue, we may grant summary
judgment for the party entitled to judgment as a matter of law.
Rule 121(b); Fla. Country Clubs, Inc. v. Commissioner, 122 T.C.
73, 75-76 (2004), affd. on other grounds 404 F.3d 1291 (11th Cir.
2005).
In deciding whether respondent is entitled to judgment as a
matter of law, we view factual inferences in the light most
favorable to petitioner. Speltz v. Commissioner, 124 T.C. 165
(2005), affd. on other grounds 454 F.3d 782 (8th Cir. 2006).
Generally, a taxpayer who received a valid notice of
deficiency for the year in issue or who otherwise had a prior
opportunity to dispute the underlying tax liability may not, in a
subsequent section 6320 Appeals Office hearing and in subsequent
3
In Kim v. Commissioner, T.C. Memo. 2005-96, respondent’s
improper issuance of a notice of determination, instead of a
decision letter that should have been issued in connection with
an untimely request for a sec. 6330 hearing, served as the basis
for our jurisdiction.
- 11 -
related litigation in this Court, challenge the underlying tax
liability. Secs. 6320(c), 6330(c)(2)(B); Lewis v. Commissioner,
128 T.C. __, __ (2007) (slip op. at 24); Sego v. Commissioner,
114 T.C. 604, 610-611 (2000); Goza v. Commissioner, 114 T.C. 176,
182-183 (2000); sec. 301.6320-1(e)(1), Proced. & Admin. Regs.
Thus, where a taxpayer has received a prior lien or levy
notice under section 6320 or section 6330 which could have been
appealed to respondent’s Appeals Office, relating to the same
year and the same underlying tax liability as is involved in a
subsequent lien or levy notice, the taxpayer is treated with
regard to the subsequent lien or levy notice as already having
had a prior opportunity to dispute the underlying tax liability.
Sec. 301.6320-1(e)(3), Q&A-E2, Q&A-E7, Proced. & Admin. Regs.
Section 301.6320-1(e)(3), Q&A-E2, Proced. & Admin. Regs.,
explains as follows:
An opportunity to dispute a liability includes a prior
opportunity for a conference with Appeals that was
offered either before or after the assessment of the
liability.
After requesting and receiving a copy of respondent’s notice
of deficiency, at petitioner’s equivalent hearing with
respondent’s Appeals Office relating to respondent’s June 17,
2002, second levy notice, petitioner discussed and disputed with
respondent’s Appeals Office her alleged discharge of indebtedness
- 12 -
income and her underlying 1996 individual Federal income tax
liability.
Petitioner argues that she did not receive respondent’s
notice of deficiency in December of 1998 and therefore that she
now should be able to contest her 1996 underlying Federal income
tax liability. Even if respondent improperly mailed the notice
of deficiency, and even if petitioner did not receive the notice
of deficiency when it originally was mailed to her, when
petitioner participated in the Appeals Office equivalent hearing
relating to respondent’s June 17, 2002, second levy notice,
petitioner did have an opportunity to, and in fact did, discuss
and dispute with respondent’s Appeals Office her underlying tax
liability. Accordingly, petitioner may not now, in connection
with respondent’s November 4, 2004, NFTL, contest that underlying
tax liability.
Because petitioner raises no other arguments relating to the
NFTL, we shall grant summary judgment in favor of respondent
relating to respondent’s November 4, 2004, NFTL and respondent’s
October 21, 2005, notice of determination.
For the reasons stated, we shall deny respondent’s motion to
dismiss, and we shall grant respondent’s motion for summary
judgment.
An appropriate order will
be entered.