T.C. Summary Opinion 2008-111
UNITED STATES TAX COURT
LONNIE C. AND TRACEY Y. LAKES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 28030-07S. Filed August 26, 2008.
Tracey Y. Lakes, pro se.
Jennifer K. Martwick and James H. Brunson III, for
respondent.
RUWE, Judge: This case was brought pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
when the petition was filed.1 Pursuant to section 7463(b), the
decision to be entered is not reviewable by any other court, and
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
- 2 -
this opinion is not to be treated as precedent for any other
case. The petition in this case was filed pursuant to two
Notices of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 (notices of determination). The case is
before the Court on respondent’s motion to dismiss for lack of
jurisdiction, as supplemented (motion to dismiss). The only
issue is whether petitioners timely filed their petition with the
Court as prescribed by section 6330(d).
This case was calendared for hearing on respondent’s above-
referenced motion at Atlanta, Georgia, on September 15, 2008.
Upon further review of the motion and response, it is clear that
petitioners did not timely file their petition as prescribed by
section 6330(d). Therefore respondent’s motion to dismiss for
lack of jurisdiction will be granted.
Background
Respondent’s Appeals Office sent to petitioners, by
certified mail, two notices of determination, dated and
postmarked October 11, 2007. The first pertained to a proposed
levy action with respect to petitioners’ unpaid income tax
liabilities for tax year 2001.2 The second pertained to the
filing of a notice of Federal tax lien with respect to
2
Petitioners’ tax year 2001 liability was previously
determined by stipulated decision at docket No. 12505-05S.
- 3 -
petitioners’ unpaid income tax liabilities for tax years 2002 and
2003.
Petitioners’ initial incomplete petition, contesting the
notices of determination for tax years 2001, 2002, and 2003, was
received by the Court on December 4, 2007, in an envelope
postmarked November 29, 2007.3 Petitioners filed an amended
petition on February 1, 2008.
Respondent, subsequently, filed a motion to dismiss for lack
of jurisdiction upon the ground that the petition was not timely
filed.
Petitioners objected to respondent’s motion to dismiss,
alleging that their petition was timely filed. Petitioners,
however, did not deny that the notices of determination were
mailed to them on the aforementioned date, did not dispute the
date on which their initial incomplete petition was mailed and
filed with the Court, and provided no evidence of a timely filing
of their petition.
Discussion
The Tax Court is a court of limited jurisdiction, and we may
exercise our jurisdiction only to the extent authorized by
3
Petitioners’ petition also purports to contest a
collection action for the tax year 2004. Respondent states that
no notice of determination was mailed to petitioners with respect
to tax year 2004. Moreover, the record is devoid of any
indication that respondent has initiated any collection
activities with respect to petitioners’ 2004 tax year.
- 4 -
Congress. Sec. 7442; Naftel v. Commissioner, 85 T.C. 527, 529
(1985). Our jurisdiction in a collection review proceeding
brought pursuant to section 6320 or section 6330 generally
depends upon the issuance of a valid notice of determination and
a timely filed petition. Prevo v. Commissioner, 123 T.C. 326,
328 (2004); see also Sarrell v. Commissioner, 117 T.C. 122, 125
(2001); Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
When a taxpayer wishes to invoke this Court’s jurisdiction
to challenge a notice of determination regarding a lien or levy
action, the taxpayer must file his petition with this Court
within the statutorily provided period. Section 6330(d)(1)
provides:
SEC. 6330. NOTICE AND OPPORTUNITY FOR HEARING BEFORE
LEVY.
* * * * * * *
(d) Proceeding After Hearing.--
(1) Judicial review of determination.-–
The person may, within 30 days of a
determination under this section, appeal such
determination to the Tax Court (and the Tax
Court shall have jurisdiction with respect to
such matter).
In this case the two notices of determination were dated and
mailed on October 11, 2007. It follows that the 30-day period to
file a petition with this Court commenced on October 12, 2007.
See secs. 301.6320-1(f)(1), 301.6330-1(f)(1), Proced. & Admin.
Regs.
- 5 -
Petitioners’ petition was received by this Court on December
4, 2007. The envelope in which it was received bore a U.S.
Postal Service postmark date of November 29, 2007. With the
benefit of the timely-mailing/timely-filing provision in section
7502, petitioners’ petition would be deemed filed with the Court
as of November 29, 2007, which is 49 days after the date of the
notices of determination. Because petitioners’ petition was
filed more than 30 days after the date of the notices of
determination, this Court lacks jurisdiction over petitioners’
claims in this proceeding. See sec. 6330(d).
Since petitioners’ petition, which challenges the notices of
determination for tax years 2001, 2002, and 2003, was not timely
filed pursuant to section 6330(d), we shall grant respondent’s
motion to dismiss for lack of jurisdiction.
To reflect the foregoing,
An appropriate order of
dismissal for lack of jurisdiction
will be entered.