Don Weber II v. Commissioner

122 T.C. No. 12

• Court: United States Tax Court
• Decided: March 22, 2004
• Docket: 15169-03L
• Status: Unknown

Opinion

122 T.C. No. 12

UNITED STATES TAX COURT

DON WEBER II, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15169-03L. Filed March 22, 2004.

On Dec. 19, 2002, R mailed to P two notices of determination concerning collection action. R issued the first notice with respect to P’s liability for unpaid income taxes; R issued the second notice with respect to P’s liability for an unpaid civil penalty under sec. 6682, I.R.C. R sent both notices to P by certified mail addressed to him at his last known address. The first notice was returned to R by the U.S. Postal Service marked “unclaimed”. By letter dated Aug. 4, 2003, R’s settlement officer sent P courtesy copies of the notices of determination. On Sept. 4, 2003, P filed a petition for lien or levy action under sec. 6330(d), I.R.C. Thereafter, R filed a motion to dismiss P’s petition for lack of jurisdiction on the ground that it was not timely filed. P opposes the granting of R’s motion, contending that he did not receive either of the notices of determination until August 2003, at which time he promptly filed his petition with the Court. - 2 -

Held: The income tax notice of determination that was sent by certified mail to P at P’s last known address was sufficient, notwithstanding the fact that P did not receive such notice.

Held, further, the courtesy copy of the income tax notice of determination that R’s officer sent P in August 2003 was not a notice of determination under sec. 6320, I.R.C., or sec. 6330, I.R.C., nor did the sending of that copy serve to revive the statutory filing period.

Held, further, because P did not timely file his petition in respect of the income tax notice of determination, this Court lacks jurisdiction to review R’s determination to proceed with collection of P’s liability for unpaid income taxes.

Held, further, this Court lacks jurisdiction to review R’s determination to proceed with collection of P’s liability for the unpaid civil penalty under sec. 6682, I.R.C., because it lacks jurisdiction over the underlying liability.

Don Weber II, pro se.

James E. Cannon and Julie Jebe, for respondent.

OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4), and Rules 180, 181, and 182.1 The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.

1 All Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended. - 3 -

OPINION OF THE SPECIAL TRIAL JUDGE

ARMEN, Special Trial Judge: This collection review case is

before the Court on respondent’s motion to dismiss for lack of

jurisdiction. Respondent contends that the Court lacks

jurisdiction on the ground the petition for lien or levy action

was not timely filed. As discussed in detail below, we shall

dismiss the petition for lack of jurisdiction.

Background

The record reflects and/or the parties do not dispute the

following facts:

On December 19, 2002, respondent mailed to petitioner a

Notice Of Determination Concerning Collection Action(s) informing

petitioner that respondent would proceed with the collection of

petitioner’s unpaid Federal income taxes for 1992, 1993, 1994,

and 1995 (the income tax notice). On December 19, 2002,

respondent also mailed to petitioner a Notice Of Determination

Concerning Collection Action(s) informing petitioner that

respondent would proceed with the collection of petitioner’s

unpaid liability for a civil penalty imposed under section 6682

for the taxable period ending December 31, 1997 (the civil

penalty notice).2

2 Sec. 6682(a) generally provides that an individual shall be liable for a civil penalty if such individual is found to have made a false statement regarding the correct amount of income tax withholding on wages and/or backup withholding. - 4 -

Respondent mailed the income tax notice and the civil

penalty notice to petitioner by certified mail addressed to him

at 3500 W. 95th St., No. 6638, Shawnee Msn., Kansas 66206-2052

(the Kansas address).3 On or about January 13, 2003, the

envelope bearing the income tax notice was returned to respondent

by the U.S. Postal Service marked “Unclaimed”.4 The envelope

included notations reflecting that the U.S. Postal Service

attempted to deliver the notice to petitioner on certain specific

dates.

On August 4, 2003, respondent mailed a letter to petitioner

at the Kansas address that stated in pertinent part as follows:

“Per our telephone conversation this morning, enclosed are copies

of the determination letters previously mailed to you in December

2002, when the letters were originally issued.”

On September 4, 2003, the Court received and filed a

petition for lien or levy action. No notice of determination was

attached to the petition, nor did the petition identify the

specific notice(s) in dispute. The petition arrived at the Court

in an envelope bearing a U.S. Postal Service postmark date of

3 Respondent proved the mailing of the notice of determination through the introduction of a postmarked copy of a certified mail list. Cf. Magazine v. Commissioner, 89 T.C. 321, 326-327 (1987) (holding that for purposes of sec. 6212, the Commissioner must produce direct evidence to establish the fact that a notice of deficiency was mailed). 4 The record does not reflect whether the civil penalty notice was returned to respondent undelivered. - 5 -

August 27, 2003. In the petition, petitioner listed the Kansas

address as his current address.

Respondent filed a motion to dismiss for lack of

jurisdiction on the ground the petition was not filed within the

30-day period prescribed in section 6330(d) or section 7502.

Petitioner filed an objection to respondent’s motion,

asserting that he did not receive either of the notices in

question until August 2003, at which time he promptly filed a

petition with the Court. Petitioner also questioned why the

copies of the notices that he received in August 2003 were

undated.

Respondent filed a response to petitioner’s objection

asserting that the copies of the notices that were forwarded to

petitioner in August 2003 were merely courtesy copies.

Respondent further explained that the copies sent to petitioner

were undated because petitioner’s case file was not immediately

available and the copies in question were retrieved from

respondent’s computer files.

This matter was called for hearing at the Court’s motions

session in Washington, D.C. Counsel for respondent appeared at

the hearing and offered argument in support of respondent’s

motion to dismiss. Although there was no appearance by or on

behalf of petitioner at the hearing, petitioner did file with the

Court a written statement pursuant to Rule 50(c). - 6 -

Discussion

Sections 6320 (pertaining to Federal tax liens) and 6330

(pertaining to levies) establish procedures for administrative

and judicial review of certain collection actions. As an initial

matter, the Commissioner is required to provide a taxpayer with

written notice that a Federal tax lien has been filed and/or that

the Commissioner intends to levy; the Commissioner is also

required to explain to the taxpayer that such collection action

may be challenged on various grounds at an administrative

hearing. See Davis v. Commissioner, 115 T.C. 35, 37 (2000); Goza

v. Commissioner, 114 T.C. 176, 179 (2000). Sections 6320(a)(2)

and 6330(a)(2) provide that the written notice described above

shall be given in person, left at the person’s dwelling or usual

place of business, or sent by certified or registered mail to

such person’s last known address.

When the Appeals Office issues a Notice Of Determination

Concerning Collection Action(s) to a taxpayer following an

administrative hearing, section 6330(d)(1) provides that the

taxpayer has 30 days following the issuance of such notice to

file a petition for review with the Tax Court or, if the Tax

Court does not have jurisdiction over the underlying tax

liability, with a Federal District Court. See Offiler v.

Commissioner, 114 T.C. 492, 498 (2000). The procedure

established under section 6330(d)(1) is made applicable to a - 7 -

proceeding regarding a Federal tax lien by way of the cross-

reference contained in section 6320(c).

We have held that this Court’s jurisdiction under sections

6320 and 6330 depends on the issuance of a valid notice of

determination and the filing of a timely petition for review.

See Sarrell v. Commissioner, 117 T.C. 122, 125 (2001); Moorhous

v. Commissioner, 116 T.C. 263, 269 (2001); Offiler v.

Commissioner, supra at 498; see also Rule 330(b).5

Although section 6330(d) does not specify the means by which

the Commissioner is required to give notice of a determination

made under sections 6320 and 6330, we conclude that the method

that Congress specifically authorized for sending notices of

deficiency in section 6212(a) and (b) certainly should suffice.

Accordingly, we hold that a notice of determination issued

pursuant to sections 6320 and/or 6330 is sufficient if such

notice is sent by certified or registered mail to a taxpayer at

the taxpayer’s last known address. Cf. sec. 6212(b)(1), (3).6

5 Petitioner did not raise any challenge to the validity of either of the notices of determination in question. 6 Sec. 6212(b)(1) and (3) provides in pertinent part as follows:

SEC. 6212. NOTICE OF DEFICIENCY. * * * * * * * (b) Address for notice of deficiency.-- (1) Income and gift taxes and certain excise taxes.–-* * * notice of a deficiency * * * if mailed to the taxpayer at his last known address, (continued...) - 8 -

It may be that such a notice of determination is also sufficient

if it is given in person or left at the taxpayer’s dwelling or

usual place of business. Cf. sec. 6330(a)(2). However, we need

not, and do not, decide this latter matter.

The Income Tax Notice

The notice of determination pertaining to petitioner’s

unpaid income tax liabilities was mailed by certified mail to the

same address that petitioner listed as his current address in the

petition for lien or levy action. Petitioner does not contend

that such notice was mailed to an incorrect address.

Consequently, we conclude that the income tax notice was mailed

to petitioner’s last known address, which is sufficient for

jurisdictional purposes. See, e.g., Sarrell v. Commissioner,

supra at 125.

Under the circumstances, the sole issue for decision with

regard to the income tax notice is whether the petition was

timely filed. The record reflects that the petition was not

filed within the 30-day period prescribed in section 6330(d)(1).

In particular, the record shows that respondent mailed the notice

6 (...continued) shall be sufficient * * *. * * * * * * * (3)Estate tax.–-* * * notice of a deficiency * * *, if addressed in the name of the decedent or other person subject to liability and mailed to his last known address, shall be sufficient * * *. - 9 -

of determination to petitioner on December 19, 2002. Taking into

account an intervening weekend and Federal holiday, the 30-day

filing period expired on Tuesday, January 21, 2003. See sec.

7503. However, the petition in this case was not mailed to the

Court until August 27, 2003, and was received and filed on

September 4, 2003–-more than 8 months after the income tax notice

was mailed. It follows that the petition was not timely filed

and we are obliged to dismiss this case for lack of jurisdiction.

See McCune v. Commissioner, 115 T.C. 114 (2000).

Petitioner’s assertion that his petition should be

considered timely filed because he did not actually receive the

income tax notice until August 2003 is misplaced. Like a notice

of deficiency issued pursuant to section 6213(a), a notice of

determination made pursuant to sections 6320 and/or section 6330

serves as a person’s “ticket” to the Tax Court. Offiler v.

Commissioner, supra at 498; see Frieling v. Commissioner, 81 T.C.

42, 52 (1983). In accordance with longstanding principles

governing the validity of a notice of deficiency under section

6213(a), and consistent with our conclusion that the income tax

notice was sufficient because it was properly mailed to

petitioner’s last known address by certified mail on December 19,

2002, we hold that it is immaterial that petitioner did not

receive the notice of determination before the expiration of the

30-day filing period. See King v. Commissioner, 857 F.2d 676, - 10 -

679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Teel v.

Commissioner, 248 F.2d 749, 751 (10th Cir. 1957), affg. 27 T.C.

375 (1956); Yusko v. Commissioner, 89 T.C. 806, 810 (1987);

Frieling v. Commissioner, supra at 52.

We further hold that the courtesy copy of the income tax

notice that respondent sent to petitioner on August 4, 2003, was

not a notice of determination under section 6320 or 6330;

therefore, it could not serve to revive the 30-day filing period.

See Teel v. Commissioner, supra; Lerer v. Commissioner, 52 T.C.

358, 362-366 (1969); Powell v. Commissioner, T.C. Memo. 1998-108;

Schoenfeld v. Commissioner, T.C. Memo. 1993-303, n.2.

Finally, we do not have the authority to extend our

jurisdiction in this case notwithstanding the fact that

petitioner did not receive the notice of determination within the

30-day filing period. The Court’s jurisdiction is statutorily

prescribed under sections 6320 and 6330, and we may not extend

the 30-day period for filing a petition for lien or levy action.

Axe v. Commissioner, 58 T.C. 256, 259 (1972); see Lamont v.

Commissioner, T.C. Memo. 1993-469.

Consistent with the preceding discussion, we shall grant

respondent’s motion to dismiss, in that we lack jurisdiction to - 11 -

review the income tax notice on the ground the petition for lien

or levy action was not timely filed.

The Civil Penalty Notice

As previously mentioned, the Court’s jurisdiction under

sections 6320 and 6330 is limited to cases in which the

underlying tax liability is of a type over which the Court

normally has jurisdiction. Sec. 6330(d); Van Es v. Commissioner,

115 T.C. 324, 328-329 (2000) (case dismissed for lack of

jurisdiction on the ground the Court lacks jurisdiction to review

the frivolous return penalty imposed under section 6702); Moore

v. Commissioner, 114 T.C. 171, 175 (2000) (case dismissed for

lack of jurisdiction on the ground the Court lacks jurisdiction

to review the trust fund recovery penalty imposed under section

6672).

The record reflects that the civil penalty notice is based

on the assessment of a penalty against petitioner pursuant to

section 6682. It is well settled that this Court lacks

jurisdiction to redetermine such penalties. Sec. 6682(c);

Castillo v. Commissioner, 84 T.C. 405, 411 (1985); Fischer v.

Commissioner, T.C. Memo. 1994-586 n.3. Because we lack

jurisdiction over the tax liability underlying the civil penalty

notice, we are obliged to dismiss the matter for lack of - 12 -

jurisdiction on that ground. See Barnhill v. Commissioner, T.C.

Memo. 2002-116; cf. Lunsford v. Commissioner, 117 T.C. 159

(2001).

To reflect the foregoing,

An order will be entered

dismissing this case for lack of

jurisdiction.