Gray v. Commissioner

CAROL DIANE GRAY, PETITIONER v. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT
Docket No. 27849–09L. 1 Filed March 28, 2012.

R issued and mailed to P a notice of determination con-
cerning collection actions under I.R.C. secs. 6320 and/or 6330,
with respect to unpaid income taxes for 1992, 1993, 1994, and
1995, on Oct. 16, 2009. The notice determined that a proposed
lien and levy should be sustained. Although P had requested
relief under I.R.C. sec. 6015 for the years in issue at her
hearing, the notice was silent with respect thereto. Petitioner
had previously requested I.R.C. sec. 6015 relief for the same
years and received a final determination with respect thereto
in 2000, for which she did not file a petition for review by this
Court within 90 days. The notice of determination also stated
that, with respect to P’s request for interest abatement, it had
been determined that P was not eligible under I.R.C. sec.
6404(e) for any abatement of interest. P’s petition seeking
review of the notice of determination was received and filed
by the Court on Nov. 23, 2009. The envelope containing the
petition bore a legible U.S. postmark of Nov. 17, 2009. R
moved to dismiss for lack of jurisdiction on the ground that
the petition was untimely.
1. Held: We lack jurisdiction under I.R.C. sec. 6330(d) to
review the determination concerning the collection actions
because the petition was not filed within 30 days of the deter-
mination as required by I.R.C. sec. 6330(d)(1).
2. Held, further, further proceedings are necessary to deter-
mine whether we have jurisdiction under I.R.C. sec.
6015(e)(1)(A) to determine the appropriate relief available to
petitioner under I.R.C. sec. 6015.
3. Held, further, the petition is timely for purposes of our
jurisdiction under I.R.C. sec. 6404(h)(1) to review whether the
failure to abate interest was an abuse of discretion, as it was
filed less than 180 days after the notice of determination was
mailed to P.

Carol Diane Gray, pro se.
Brett Saltzman, for respondent.

1 This case was previously consolidated for purposes of disposition with the cases at docket

Nos. 3260–08L and 27850–09L, concerning review of collection actions with respect to certain
other taxable years of petitioner. Pursuant to orders entered on the date of this Opinion, the
consolidation is eliminated and the cases at docket Nos. 3260–08L and 27850–09L are dismissed
for lack of jurisdiction.

295

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 296 138 UNITED STATES TAX COURT REPORTS (295)

OPINION

GALE, Judge: The petition in this case seeks review of a
Notice of Determination Concerning Collection Action(s)
Under Section 6320 and/or 6330 2 issued by respondent’s
Office of Appeals (Appeals). In the notice of determination
Appeals determined both to sustain the proposed collection
actions (a lien and a levy) and to reject petitioner’s request
for an abatement of interest. The notice of determination was
mailed on October 16, 2009. The envelope containing the
petition bears a U.S. Postal Service (USPS) postmark of
November 17, 2009. The petition was received by the Court
and filed on November 23, 2009.
Respondent has moved to dismiss for lack of jurisdiction on
the ground that the petition was untimely. We must decide
whether the petition was timely with respect to our review
of a collection action pursuant to section 6330(d)(1) and, if
not, whether we have jurisdiction pursuant to sections 6015
or 6404 to review the determination with respect to spousal
relief or interest abatement.
We hold that the petition was untimely with respect to our
review pursuant to section 6330(d)(1) of Appeals’ determina-
tion to proceed with both collection actions; accordingly, we
shall grant respondent’s motion to dismiss for lack of juris-
diction insofar as the collection actions that are the subject
of the notice of determination are concerned. The record
developed thus does not establish whether we have jurisdic-
tion pursuant to section 6015(e) to determine the appropriate
relief available to petitioner under section 6015. We shall
therefore deny respondent’s motion insofar as petitioner’s
claim for section 6015 relief is concerned. However, we fur-
ther hold that the notice of determination contains a final
determination not to abate interest. Consequently, the peti-
tion constitutes a timely request for review pursuant to sec-
tion 6404(h) of Appeals’ determination not to abate interest.
Respondent’s motion will therefore be denied with respect to
petitioner’s request for review of the failure to abate interest.

2 Unless otherwise noted, all section references are to the Internal Revenue Code of 1986, as

amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.

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Background
The following has been stipulated or is not in dispute. Peti-
tioner resided in Illinois when she filed her petition.
On October 16, 2009, Appeals issued and sent to petitioner
by certified mail a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330 con-
cerning a lien and a levy to collect unpaid income taxes for
1992, 1993, 1994, and 1995. The notice of determination
rejected any collection alternatives and sustained the lien
and levy. The notice of determination also analyzed peti-
tioner’s request for abatement of tax, interest, and additions
to tax.
On the basis of substantiation of certain business expenses
petitioner submitted, the notice of determination abated a
portion of the tax for 1992 and 1993. In addition, in the
description of issues petitioner raised, the notice of deter-
mination acknowledged that petitioner had submitted a
request for interest and ‘‘penalty’’ abatement as part of her
CDP hearing: ‘‘While your case was pending in Appeals, you
also submitted a request for abatement of interest and pen-
alties.’’ After summarizing the grounds she had advanced for
interest and ‘‘penalty’’ abatement, the notice of determination
concluded that petitioner had shown reasonable cause and
that the additions to tax for all years would be abated. 3 With
respect to interest abatement, the notice of determination
stated: ‘‘A review of your request for abatement shows that
there is no basis for interest abatement, based on the criteria
shown in IRC section 6404(e)’’ and that ‘‘It was determined
that the conditions of IRC section 6404(e) with regard to
abatement of interest were not met.’’
Petitioner filed a petition in this Court in which she
checked the box indicating that she was disputing a ‘‘Notice
of Determination Concerning Collection Action’’ and attached
the notice of determination. The envelope that contained the
petition bore a USPS postmark of November 17, 2009. The
petition was received and filed by the Court on November 23,
2009. The petition disputed the notice of determination and,
among the reasons for the dispute, cited an Internal Revenue
3 On October 22, 2009, the settlement officer who conducted petitioner’s sec. 6330 hearing

issued her a separate letter stating that the additions to tax under sec. 6651(a)(1) and (2) had
been abated in full.

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Service (IRS) employee’s erroneous representation to peti-
tioner that she owed no income tax for her 1992–95 taxable
years.
Respondent subsequently filed a motion to dismiss for lack
of jurisdiction on the ground that the petition was not filed
within the 30-day period prescribed by sections 6320 and
6330(d) for appealing determinations concerning collection
actions. Petitioner objected, the Court conducted a hearing on
the motion, and the parties filed briefs thereafter.

Discussion
Jurisdiction Generally
The Tax Court is a court of limited jurisdiction, sec. 7442,
and may exercise jurisdiction only to the extent expressly
authorized by Congress, Stewart v. Commissioner, 127 T.C.
109, 112 (2006); Estate of Young v. Commissioner, 81 T.C.
879, 880–881 (1983). Questions of jurisdiction are funda-
mental, and whenever it appears that this Court may lack
jurisdiction that question must be addressed. Wheeler’s
Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179
(1960). We have jurisdiction to determine whether we have
jurisdiction. Stewart v. Commissioner, 127 T.C. at 112; Estate
of Young v. Commissioner, 81 T.C. at 880–881; Brannon’s of
Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1002 (1978).
All claims in a petition should be broadly construed so as
to do substantial justice, and a petition filed by a pro se liti-
gant should be liberally construed. See Rule 31(d); Haines v.
Kerner, 404 U.S. 519, 520 (1972); Lukovsky v. Commissioner,
T.C. Memo. 2010–117; Med. Practice Solutions, LLC v.
Commissioner, T.C. Memo. 2009–214; Swope v. Commis-
sioner, T.C. Memo. 1990–82. Accordingly, we must consider
whether the petition, liberally construed, sets out a claim
over which we have jurisdiction.
Jurisdiction To Review the Collection Action Determination
It is a straightforward proposition that the petition sought
to invoke our jurisdiction under section 6330(d)(1) to review
the determinations in the notice of determination to proceed
with collection. Petitioner checked the box on the petition
indicating that she was disputing a ‘‘Notice of Determination
Concerning Collection Action’’ and attached the notice of

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determination. The notice of determination notes that peti-
tioner sought a hearing under sections 6320 and 6330 and
states a determination to proceed with two collection actions
(a lien and a levy). The problem for petitioner is that an
appeal of a collection determination under section 6330(d)(1)
must be made ‘‘within 30 days of a determination’’. The
notice of determination is dated October 16, 2009, and was
sent by certified mail to petitioner on that date. Thirty days
thereafter was November 15, 2009, which was a Sunday.
Pursuant to section 7503, the last day for filing an appeal of
the collection determination was therefore the next day,
Monday, November 16, 2009 (which was not a legal holiday).
The petition was received by the Court and filed on
November 23, 2009. Although under section 7502 the date of
a legible USPS postmark is treated as the date of delivery
when actual delivery occurs beyond the date required for
filing, see, e.g., Shipley v. Commissioner, 572 F.2d 212, 213–
214 (9th Cir. 1977), aff ’g T.C. Memo. 1976–383; sec.
301.7502–1(c)(1)(iii), Proced. & Admin. Regs., section 7502
does not help petitioner here because the USPS postmark on
the envelope containing the petition is November 17, 2009.
Our jurisdiction to review a collection action determination
under section 6330(d)(1) depends upon the issuance of a valid
notice of determination and a timely petition for review.
Lunsford v. Commissioner, 117 T.C. 159, 165 (2001). The 30-
day period provided in section 6330(d)(1) for the filing of a
petition for review is jurisdictional and cannot be extended;
this Court must dismiss for lack of jurisdiction any case in
which a petition for review is deemed filed more than 30
days after the notice of determination is issued. McCune v.
Commissioner, 115 T.C. 114, 117 (2000). Since the petition
was not filed, or treated as filed, within the statutorily pre-
scribed period, we lack jurisdiction to review the determina-
tion to proceed with the collection actions in the notice of
determination.
Petitioner’s Contentions
Petitioner contends that she had 90 days to appeal the
notice of determination because it included determinations
modifying the underlying tax liabilities for 1992–95. In peti-
tioner’s view, because her underlying tax liabilities were

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addressed in the notice of determination, she is entitled to
the same 90-day period to appeal the determination as is
generally allowed for the filing of a petition for redetermina-
tion of a deficiency pursuant to section 6213(a).
Petitioner is mistaken. The statutory scheme of section
6330 clearly contemplates that the underlying tax liability
may be challenged in designated circumstances in a section
6330 proceeding and requires the determination to consider
such a challenge when properly made. See sec. 6330(c)(2)(B),
(3)(B). However, the statute does not distinguish between
determinations where the underlying tax liability is properly
at issue and those where it is not. The same 30-day period
to appeal the determination applies across the board. See sec.
6330(d).
Petitioner also argues that, because the notice determined
that the additions to tax for 1992–95 should be abated and
the settlement officer issued a separate letter notifying her
of the abatement on October 22, 2009, she has 30 days from
the date of the separate letter to appeal the notice of deter-
mination.
Petitioner’s contention is meritless. In contrast to the case
of interest abatement determinations, section 6404 confers no
‘‘stand-alone’’ jurisdiction on the Tax Court to review the
Commissioner’s determinations to abate penalties. See sec.
6404(h)(1). However, the Court’s jurisdiction under section
6330(d)(1) to review determinations concerning a taxpayer’s
underlying tax liability does reach a determination to abate
a penalty where the penalty forms part of the underlying tax
liability. See Katz v. Commissioner, 115 T.C. 329, 339 (2000).
That jurisdiction is dependent upon the penalty’s forming a
part of the unpaid tax that the Commissioner is seeking to
collect. See Greene-Thapedi v. Commissioner, 126 T.C. 1, 6–
7 (2006); Chocallo v. Commissioner, T.C. Memo. 2004–152.
Respondent’s determinations concerning petitioner’s liability
for the section 6651(a)(1) and (2) additions to tax for 1992–
95, insofar as the additions affected the proposed collection
actions, were made in the notice of determination under sec-
tion 6330 issued on October 16, 2009. By contrast, the ‘‘pen-
alty’’ letter of October 22, 2009, makes no reference to section
6330 or to any collection action. 4 Consequently, the ‘‘penalty’’
4 The October 22, 2009, letter would appear to have been issued in compliance with the Inter-

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letter cannot reasonably be construed to constitute a deter-
mination regarding a collection action that would confer
jurisdiction on this Court under section 6330(d)(1) if appealed
within 30 days. See Lunsford v. Commissioner, 117 T.C. at
164 (our jurisdiction under section 6330(d)(1) is established
‘‘when there is a written notice that embodies a determina-
tion to proceed with the collection of * * * taxes * * * and
a timely filed petition’’). 5
Jurisdiction Under Section 6015
Petitioner also contends that she requested spousal relief
under section 6015 during her section 6330 hearing, entitling
her to 90 days, rather than 30 days, from the mailing of the
notice of determination to petition the Tax Court for review.
See Raymond v. Commissioner, 119 T.C. 191, 193–194 (2002)
(holding that a petition seeking review of a denial of spousal
relief in a section 6330 proceeding is timely if filed within the
period provided in section 6015(e)(1)). The notice of deter-
mination is silent with respect to any spousal relief claim.
However, on the basis of a case activity record which peti-
tioner has submitted to the Court, the authenticity of which
respondent does not dispute, we are satisfied that petitioner
requested section 6015 relief with respect to the years in
issue. The case activity record states: ‘‘The taxpayer * * *
wants to be determined an innocent spouse for 1992–95. Her
innocent spouse request was denied and she has exhausted
her appeal rights.’’
In Raymond v. Commissioner, 119 T.C. at 194, the tax-
payer had raised a spousal defense in a section 6330 hearing,
and the notice of determination included a determination
that the taxpayer was not entitled to relief under section
6015. In those circumstances, we held that the petition, filed
more than 30 days after the issuance of the notice of deter-
mination, was nonetheless timely for purposes of conferring
jurisdiction on this Court to determine the appropriate relief
under section 6015 because it had been filed within 90 days
nal Revenue Manual’s directive that Appeals issue a closing letter to the taxpayer when a ‘‘pen-
alty’’ abatement request has been granted in full. See Internal Revenue Manual pt. 8.11.1.5.3
(Apr. 13, 2010).
5 Even if the ‘‘penalty’’ letter were somehow construed as a determination concerning a collec-

tion action, we would lack jurisdiction due to mootness as the taxes (i.e., the additions to tax)
that are the subject of the letter were abated and respondent is not seeking to collect them.
See Greene-Thapedi v. Commissioner, 126 T.C. 1, 6–7 (2006).

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of the mailing of the notice of determination. ‘‘The timeliness
of the petition, insofar as it seeks review of the administra-
tive denial of section 6015 relief, is, therefore, dependent
upon section 6015(e)(1).’’ 6
Here, petitioner raised a spousal defense at her section
6330 hearing, but the notice of determination is silent with
respect thereto. The petition can be reasonably construed as
alleging a spousal defense. 7 Given the silence of the notice
of determination the petition may be timely for jurisdictional
purposes under section 6015(e)(1)(A)(i)(II), which authorizes
a petition and confers jurisdiction on this Court where a
request for equitable relief under section 6015(f) has been
made 8 and there has been no final determination with
respect to the request within six months. However, petitioner
admits in her opening brief that she previously sought sec-
tion 6015 relief with respect to the years 1992 through 1995,
that she received a final determination with respect thereto
in 2000, and that she did not petition for Tax Court review
of that determination. The entry in the case activity record
previously quoted likewise suggests that the Appeals officer
was aware of the previous denial.
Section 1.6015–5(c)(1), Income Tax Regs., generally pro-
vides that a requesting spouse is entitled to only one final
administrative determination of relief under section 6015 for
a given assessment, unless the requesting spouse’s status as
married to or cohabiting with the nonrequesting spouse
changes between the first and second request for relief. In
Barnes v. Commissioner, 130 T.C. 248 (2008), we held that
a second request for section 6015(f) relief from an under-
payment that was essentially duplicative of an earlier
request for which a final determination had been issued did
not confer jurisdiction on this Court under section
6015(e)(1)(A). We expressly reserved ruling, however, on the
question of ‘‘whether a second request for relief that is based
6 We note that the Secretary adheres to the same position in the regulations. See sec.

301.6330–1(f)(2), Q&A–F2, Proced. & Admin. Regs.
7 The petition alleges that errors in the returns filed for the years in issue were attributable

to ‘‘incorrect information given to the accountant by my ex-spouse.’’ We construe the petition,
filed by a pro se litigant, broadly. See Rule 31(d); Haines v. Kerner, 404 U.S. 519, 520 (1972);
Lukovsky v. Commissioner, T.C. Memo. 2010–117.
8 As no deficiency had been asserted against her, but instead the tax for each year in issue

was reported as due but not paid, petitioner was eligible to request equitable relief under sec.
6015(f) at her sec. 6330 hearing, but she was not eligible to elect the application of sec. 6015(b)
or (c). See sec. 6015(e)(1); Hopkins v. Commissioner, 121 T.C. 73, 88 (2003).

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on grounds or facts sufficiently dissimilar from those under-
lying the first request for relief might revive the right to peti-
tion for review by this Court.’’ Barnes v. Commissioner, 130
T.C. at 254 n.6.
Respondent’s motion to dismiss does not address the fact
that petitioner raised a spousal defense at her section 6330
hearing. The motion simply contends that the petition is
untimely because it was not filed within the 30-day period
provided in section 6330(d)(1), without taking into account
Raymond, Barnes, or section 1.6015–5(c)(1), Income Tax
Regs. On the basis of the record developed thus far, we are
unable to determine whether the claim for relief petitioner
raised at her section 6330 hearing is ‘‘sufficiently dissimilar’’
from the claim for which she received a final determination
in 2000 that we would have jurisdiction over the former not-
withstanding the holding in Barnes. Because we have juris-
diction to determine whether we have jurisdiction, we con-
clude that respondent’s motion to dismiss must be denied
insofar as it concerns petitioner’s claim for relief under sec-
tion 6015 for the years 1992 through 1995. Further pro-
ceedings are necessary to determine whether jurisdiction
exists.
Jurisdiction Under Section 6404
Because we lack jurisdiction under section 6330(d)(1) and
our jurisdiction under section 6015(e) is uncertain, we con-
sider whether the petition states an independent claim for
jurisdiction under section 6404. Petitioner argues that
because she requested an abatement of interest under section
6404 with respect to years 1992 through 1995, she has 180
days under section 6404(h)(1) from the mailing of the deter-
mination denying abatement to appeal it. Respondent con-
tends that ‘‘the fact that a taxpayer raises the issue of
interest abatement during her CDP hearing is irrelevant to
the true nature of the proceeding’’; that is, as a section 6330
proceeding in which a determination must be appealed
within 30 days.
Final Determination Not To Abate Interest
We consider first respondent’s preliminary argument that
there was ‘‘no determination as to abatement of interest

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* * * made within the CDP hearing or without it’’ and that
‘‘Petitioner was never issued a Notice of Determination or
Notice of Disallowance in connection with an interest abate-
ment proceeding.’’ We disagree. The notice of determination
issued to petitioner in connection with her section 6330
hearing states: ‘‘A review of your request for abatement
shows that there is no basis for interest abatement, based on
the criteria shown in IRC section 6404(e)’’ and that ‘‘It was
determined that the conditions of IRC section 6404(e) with
regard to the abatement of interest were not met.’’ The notice
of determination satisfies us that petitioner made a request
for interest abatement under section 6404(e) during her sec-
tion 6330 hearing and that Appeals made a determination to
deny it.
To the extent respondent may be suggesting that there was
no determination denying interest abatement because it did
not occur in connection with a stand-alone request for
interest abatement under section 6404 or because it was not
made on a Letter 3180, Final Determination Letter for Fully
Disallowing an Interest Abatement Claim, his contention is
meritless. Our jurisdiction to review denials of section 6404
interest abatement requests made in section 6330 pro-
ceedings is well established. See Katz v. Commissioner, 115
T.C. at 340–341; Kuykendall v. Commissioner, T.C. Memo.
2008–277; Joye v. Commissioner, T.C. Memo. 2002–14.
Regarding the form in which the determination was made, as
we recently observed in Cooper v. Commissioner, 135 T.C. 70,
75 (2010): ‘‘the name or label of a document does not control
whether the document constitutes a determination * * * our
jurisdiction is established when the Commissioner issues a
written notice that embodies a determination.’’ See also
Lunsford v. Commissioner, 117 T.C. at 164. This principle is
well illustrated in Craig v. Commissioner, 119 T.C. 252
(2002), where we held that a decision letter issued in connec-
tion with an equivalent hearing provided pursuant to section
301.6330–1(c)(2), Q&A–C7, Proced. & Admin. Regs., was a
determination conferring jurisdiction on this Court, notwith-
standing that the decision letter purported not to do so.
Here, the notice of determination was written and
embodied a determination that petitioner was not entitled to
any interest abatement under section 6404(e). The notice
fairly indicates that the settlement officer gave ‘‘consider-

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ation to whether it would be appropriate to abate an assess-
ment of interest’’. Bourekis v. Commissioner, 110 T.C. 20, 26
(1998). Respondent has not suggested any basis for con-
cluding that the determination was not intended to resolve
petitioner’s request for interest abatement or was not final,
as required in section 6404(h)(1), and we see none. Accord-
ingly, we conclude that the notice of determination embodied
a final determination not to abate interest as contemplated
in section 6404(h)(1).
Independent Jurisdiction Under Section 6404(h)
Because petitioner requested an abatement of interest in
connection with her section 6330 hearing, the notice of deter-
mination included a determination not to abate interest
under section 6404(e), and the petition seeks our review of
that determination, we conclude that the notice and petition
confer jurisdiction under section 6404(h) that is independent
of section 6330. See Rule 31(d); Wright v. Commissioner, 571
F.3d 215, 219–220 (2d Cir. 2009), vacating and remanding
T.C. Memo. 2006–273; Kaufman v. Commissioner, T.C.
Memo. 2010–89. Insofar as the petition seeks review under
section 6404(h) of the failure to abate interest, it is timely for
jurisdictional purposes because it was filed within 180 days
of the final determination not to abate interest. See sec.
6404(h)(1); cf. Raymond v. Commissioner, 119 T.C. at 194
(timeliness of petition filed after section 6330 proceeding,
insofar as it seeks review of denial of section 6015 relief, is
dependent upon section 6015(e)(1)). We follow the principle
applied in Raymond: since the claim under section 6404, like
a claim under section 6015, carries a more specific grant of
jurisdiction for Tax Court review than that provided in sec-
tion 6330(d)(1), the more specific grant of jurisdiction con-
trols the timeliness of the petition as to the section 6404
claim. We therefore hold that the petition is timely for pur-
poses of conferring jurisdiction on this Court pursuant to sec-
tion 6404(h)(1) to determine whether the failure to abate
interest with respect to petitioner’s 1992–95 taxable years
was an abuse of discretion.

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Conclusion
We shall grant respondent’s motion to dismiss for lack of
jurisdiction insofar as review of the collection actions in the
notice of determination is concerned. Accordingly, the collec-
tion actions at issue may proceed. We shall deny respond-
ent’s motion insofar as the petition seeks our determination
of the appropriate relief available under section 6015 and our
review of the determination not to abate interest. Further
proceedings are necessary to decide whether we have juris-
diction under section 6015(e)(1)(A), whether petitioner may
maintain an action under section 6404, 9 and, if so, whether
the determination not to abate was an abuse of discretion. To
reflect the foregoing,
An appropriate order will be issued.

f

9 Respondent’s motion addresses the timeliness of the petition and has not challenged peti-

tioner’s satisfaction of the so-called net worth requirements of sec. 6404(h)(1) as referenced in
sec. 7430(c)(4)(A)(ii). See Estate of Kunze v. Commissioner, T.C. Memo. 1999–344, aff ’d, 233 F.3d
948 (7th Cir. 2000).

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