Investment Research Associates, Inc. v. Commissioner

126 T.C. No. 7

• Court: United States Tax Court
• Decided: April 18, 2006
• Docket: 16410-05L
• Status: Unknown

Opinion

126 T.C. No. 7

UNITED STATES TAX COURT

INVESTMENT RESEARCH ASSOCIATES, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16410-05L. Filed April 18, 2006.

R filed a Federal tax lien in Florida (Florida lien) and mailed to P a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 (lien notice) regarding P’s unpaid taxes for 1980, 1982, 1984, 1985, 1986, 1987, 1988, 1989, and 1997 (the years in dispute). P did not submit to R a request for an administrative hearing with regard to the Florida lien. Three months later, R filed a Federal tax lien in Illinois (Illinois lien) and mailed to P a second lien notice for the years in dispute. P submitted to R’s Office of Appeals a request for an administrative hearing regarding the Illinois lien. Relying on sec. 301.6320-1(b)(1) and (2), Proced. & Admin. Regs., R’s Office of Appeals determined that P’s request for an administrative hearing was not timely because P failed to request an administrative hearing in response to the earlier Florida lien. The Office of Appeals conducted a so-called equivalent hearing and mailed to petitioner a decision letter. P filed a petition with the Court challenging R’s decision letter. - 2 -

Held: Sec. 301.6320-1(b)(1) and (2), Proced. & Admin. Regs., is a reasonable interpretation of sec. 6320, I.R.C., and is valid and controlling in this case. Held, further, P failed to timely request an administrative hearing with regard to the Florida lien, and, therefore, the Office of Appeals was not required to conduct an administrative hearing under sec. 6320, I.R.C. Held, further, The decision letter in dispute does not constitute a notice of determination which would permit P to invoke the Court’s jurisdiction under secs. 6320 and 6330, I.R.C., and this case shall be dismissed for lack of jurisdiction.

Robert E. McKenzie and Kathleen M. Lach, for petitioner.

Sean Robert Gannon and Kathleen C. Schlenzig, for

respondent.

OPINION

HAINES, Judge: The question presented in this collection

review case is whether the Court has jurisdiction under sections

6320 and 6330 to review the Decision Letter Concerning Equivalent

Hearing (decision letter) upon which the petition for lien or

levy action is based.1 As discussed in detail below, we conclude

that petitioner failed to timely request an administrative

hearing, and, therefore, the decision letter in dispute does not

constitute a notice of determination which would permit

petitioner to invoke this Court’s jurisdiction under sections

6320 and 6330. Consequently, we are obliged to dismiss this case

1 Section references are to sections of the Internal Revenue Code, as amended. - 3 -

for lack of jurisdiction.

Background

In Inv. Research Associates, Ltd. v. Commissioner, T.C.

Memo. 1999-407, a Memorandum Opinion filed in 28 consolidated

dockets, the Court held, inter alia, that Investment Research

Associates, Inc. (petitioner) was liable for deficiencies,

additions to tax, and an accuracy-related penalty for the years

1980 and 1982 to 1989.2 The Court entered decisions in

petitioner’s deficiency cases in September 2001. Petitioner did

not appeal the Court’s decisions in its deficiency cases and

those decisions are now final. Secs. 7481(a)(1), 7483.3 In

February 2002, respondent assessed the deficiencies, additions to

tax, and accuracy-related penalty described above, as well as

interest.

On October 28, 2002, respondent mailed to petitioner a

Notice of Federal Tax Lien Filing and Your Right to a Hearing

Under IRC 6320 with regard to petitioner’s unpaid taxes for 1980,

1982, 1984, 1985, 1986, 1987, 1988, 1989, and 1997 (hereinafter

2 Investment Research Associates, Inc., filed petitions for redetermination with the Court at docket Nos. 43966-85, 45273-86, 30830-88, 27444-89, 25875-90, 23178-91, 19314-92, and 25976-93. 3 In accordance with the Supreme Court’s decision in Ballard v. Commissioner, 544 U.S. 40, , 125 S. Ct. 1270, 1285 (2005), the Court’s Memorandum Opinion in Inv. Research Associates, Ltd. v. Commissioner, T.C. Memo. 1999-407, recently was deemed stricken with regard to taxpayers other than petitioner. - 4 -

the years in dispute). On October 30, 2002, respondent filed a

Notice of Federal Tax Lien with the secretary of state for the

State of Florida (the Florida lien) with regard to petitioner’s

unpaid taxes for the years in dispute. Petitioner did not submit

to respondent a request for an administrative hearing with regard

to the Florida lien.

On February 24, 2003, respondent filed a Notice of Federal

Tax Lien with the secretary of state for the State of Illinois

(the Illinois lien) with regard to petitioner’s unpaid taxes for

the years in dispute. On February 24, 2003, respondent mailed to

petitioner a Notice of Federal Tax Lien Filing and Your Right to

a Hearing Under IRC 6320 with regard to petitioner’s unpaid taxes

for the years in dispute. On March 25, 2003, petitioner

submitted to respondent’s Office of Appeals (Appeals Office) a

request for an administrative hearing under section 6320.

The Appeals Office determined that petitioner’s request for

an administrative hearing was not timely and conducted a so-

called equivalent hearing. Sec. 301.6320-1(i), Proced. & Admin.

Regs. On August 4, 2005, respondent mailed to petitioner a

decision letter for the years in dispute. The decision letter

stated in pertinent part:

Your due process hearing request was not filed within the time prescribed under Section 6320 and/or 6330. However, you received a hearing equivalent to a due process hearing except that there is no right to dispute a decision by the Appeals Office in court under IRC Sections 6320 and/or 6330. - 5 -

The decision letter stated that the Appeals Office rejected

petitioner’s offer-in-compromise and that the liens were properly

filed and would not be released.

On September 2, 2005, petitioner filed with the Court a

petition for lien or levy action challenging respondent’s

decision letter. Petitioner acknowledged in its petition that

respondent filed the Florida lien in October 2002 and that

respondent issued to petitioner a Notice of Federal Tax Lien

Filing at that time. The petition states that petitioner did not

submit to respondent a request for an administrative hearing

after receiving notice of the Florida lien because petitioner did

not own significant assets in the State of Florida.

The Court issued an order in this case directing the parties

to show cause why this case should not be dismissed for lack of

jurisdiction. Both parties filed responses to the Court’s order.

The Court subsequently directed respondent to file a reply to

petitioner’s response, and respondent complied with the Court’s

order.

Discussion

Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person liable for tax

when a demand for the payment of the person’s taxes has been made

and the person fails to pay those taxes. Such a lien arises when

an assessment is made. Sec. 6322. Section 6323(a) requires the - 6 -

Secretary to file a notice of Federal tax lien if the lien is to

be valid against any purchaser, holder of a security interest,

mechanic’s lienor, or judgment lien creditor. Lindsay v.

Commissioner, T.C. Memo. 2001-285, affd. 56 Fed. Appx. 800 (9th

Cir. 2003). Section 6323(f)(1), which addresses the place for

filing a notice of Federal tax lien, provides that the

Commissioner is required to file separate liens if a taxpayer

owns real property in more than one State, and the Commissioner

may be required to file separate liens in different counties or

other governmental subdivisions within a State, as designated by

the laws of that State.

Sections 6320 (pertaining to liens) and 6330 (pertaining to

levies) provide protections for taxpayers in tax collection

matters. In general terms, sections 6320 and 6330 provide for

notice and the right to an administrative hearing and judicial

review when the Commissioner files a Federal tax lien or proposes

to collect unpaid taxes by levy.

A. Notice Requirements

Section 6320(a)(1) provides that “The Secretary shall notify

in writing the person described in section 6321 of the filing of

a notice of lien under section 6323.” Section 6320(a)(2) sets

forth the time and methods under which the Commissioner is

required to provide the notice described in section 6320(a)(1).

The flush language of section 6320(a)(2) provides that the notice - 7 -

required by section 6320(a)(1) is to be provided not more than 5

business days after the day of the filing of the notice of lien.

Section 6320(a)(3) describes the information required to be

included in the notice described in section 6320(a)(1). Section

6320(a)(3)(B) provides that the notice shall include “the right

of the person to request a hearing during the 30-day period

beginning on the day after the 5-day period described in

paragraph (2).”

B. Right to an Administrative Hearing

Section 6320(b)(1) provides that a person requesting a

hearing under subsection (a)(3)(B) is entitled to a hearing in

respondent’s Appeals Office. Section 6320(b)(2) imposes a

qualification on subsection (b)(1) by providing that “A person

shall be entitled to only one hearing under this section with

respect to the taxable period to which the unpaid tax specified

in subsection (a)(3)(A) relates.” Section 6320(c) provides that

an Appeals Office hearing generally shall be conducted consistent

with the procedures set forth in section 6330(c), (d), and (e).

C. Judicial Review and Tax Court Jurisdiction

When the Appeals Office issues a notice of determination to

a taxpayer following an administrative hearing regarding a lien

or levy action, sections 6320(c) (by way of cross-reference) and

6330(d)(1) provide that the taxpayer will have 30 days following

the issuance of a notice of determination to file a petition for - 8 -

review with the Tax Court or Federal District Court, as may be

appropriate. See Orum v. Commissioner, 123 T.C. 1, 7-8 (2004),

affd. 412 F.3d 819 (7th Cir. 2005); Kennedy v. Commissioner, 116

T.C. 255, 260 (2001).

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). It

is well settled that the Court’s jurisdiction under sections 6320

and 6330 depends upon the issuance of a valid notice of

determination and the filing of a timely petition for review.

Sec. 6330(d)(1); Prevo v. Commissioner, 123 T.C. 326, 328 (2004);

Orum v. Commissioner, supra. Respondent’s issuance of a decision

letter (as opposed to a notice of determination) is not

conclusive with respect to the question of whether the Court has

jurisdiction in this case.

D. The Parties’ Positions

1. Respondent

Relying on section 301.6320-1(b)(1) and (2), Proced. &

Admin. Regs., respondent asserts that, because petitioner failed

to submit to respondent a request for an administrative hearing

in respect of the Florida lien filed in October 2002, the Appeals

Office was not obliged to provide petitioner with an

administrative hearing under section 6320 in response to

petitioner’s challenge to the Illinois lien filed in February - 9 -

2003. Section 301.6320-1(b)(1), Proced. & Admin. Regs., provides

in pertinent part that “A taxpayer is entitled to one CDP

[collection due process] hearing with respect to the first filing

of a NFTL (on or after January 19, 1999) for a given tax period

or periods with respect to the unpaid tax shown on the NFTL if

the taxpayer timely requests such a hearing.” Section 301.6320-

1(b)(2), Q&A-B1, Proced. & Admin. Regs., states:

Q-B1. Is a taxpayer entitled to a CDP hearing with respect to the filing of a NFTL for a type of tax and tax periods previously subject to a CDP Notice with respect to a NFTL filed in a different location on or after January 19, 1999?

A-B1. No. Although the taxpayer will receive notice of each filing of a NFTL, under section 6320(b)(2), the taxpayer is entitled to only one CDP hearing under section 6320 for the type of tax and tax periods with respect to the first filing of a NFTL that occurs on or after January 19, 1999, with respect to that unpaid tax. Accordingly, if the taxpayer does not timely request a CDP hearing with respect to the first filing of a NFTL on or after January 19, 1999, for a given tax period or periods with respect to an unpaid tax, the taxpayer forgoes the right to a CDP hearing with Appeals and judicial review of the Appeals’ determination with respect to the NFTL. Under such circumstances, the taxpayer may request an equivalent hearing as described in paragraph (i) of this section.

Thus, respondent avers that the Court lacks jurisdiction in this

case on the ground the decision letter in dispute does not

constitute a notice of determination that would permit petitioner

to invoke the Court’s jurisdiction under sections 6320 and 6330. - 10 -

2. Petitioner

Petitioner argues that section 301.6320-1(b)(1) and (2),

Proced. & Admin. Regs., is not a reasonable interpretation of

section 6320 and is invalid. Specifically, petitioner argues

that, although section 6320(b)(2) expressly limits a taxpayer to

one hearing for a particular taxable period, section 6320 does

not contain any language requiring a taxpayer to request an

administrative hearing with respect to the first notice of

Federal tax lien filed by the Commissioner. As petitioner sees

it, if the Commissioner files multiple liens in different States

or governmental subdivisions at different times, the taxpayer may

request an administrative hearing with regard to any one of those

liens, so long as his or her request is made within the time

limit imposed under section 6320(a)(3)(B). Petitioner contends

that it is manifestly unreasonable to interpret section 6320 to

require a taxpayer to challenge a Federal tax lien that is filed

in a jurisdiction in which the taxpayer has little, if any,

property. Asserting that it timely filed its request for an

administrative hearing with regard to the Illinois lien,

petitioner maintains that the Court has jurisdiction in this case

on the ground the decision letter in dispute should be considered

a notice of determination consistent with the Court’s holding in

Craig v. Commissioner, 119 T.C. 252 (2002). - 11 -

E. Analysis

Section 6320(a)(1) requires the Commissioner to give written

notice to a taxpayer when a Federal tax lien is filed under

section 6323. Given that section 6323(f)(1) contemplates the

filing of separate liens in multiple States, or in multiple

counties or other governmental subdivisions within a State, it

follows that a taxpayer (like petitioner in the present case) may

receive multiple lien notices under section 6320(a)(1). Although

a person may receive multiple lien notices under section

6320(a)(1), section 6320(b)(2) clearly states that the person is

entitled to only one administrative hearing under section 6320

with respect to the unpaid tax for a particular taxable period

for which a lien was filed. The statute does not, however,

explicitly address the narrow question presented in this case;

i.e., whether a taxpayer’s right to an administrative hearing in

the Appeals Office and judicial review of the Appeals Office’s

determination is tied to the first Federal tax lien filed against

the taxpayer or whether the taxpayer may defer and request an

administrative hearing in respect of a later filed lien.

As noted earlier, respondent relies on section 301.6320-1(b)

(1) and (2), Proced. & Admin. Regs., as authority for the

proposition that a taxpayer must request an administrative

hearing with respect to the first Federal tax lien that is filed

in respect of unpaid tax for a particular taxable period. - 12 -

Petitioner counters that section 301.6320-1(b)(1) and (2),

Proced. & Admin. Regs., is an interpretative regulation

promulgated under section 7805(a)4 that is entitled to very

little deference and, in any event, the regulation is

inconsistent “with the letter and the spirit of Section 6320.”

It is well settled that an interpretative Treasury

Department regulation is valid if it implements a congressional

mandate in a reasonable manner. See Natl. Muffler Dealers

Association, Inc. v. United States, 440 U.S. 472, 476-477 (1979)

(citing United States v. Cartwright, 411 U.S. 546, 550 (1973)).

An interpretative Treasury Department regulation is reasonable

under Natl. Muffler Dealers Association, Inc. v. United States,

supra, if it "harmonizes with the plain language of the statute,

its origin, and its purpose." Id. at 477; see also United States

v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982).

As previously discussed, the language of section 6320 does

not address explicitly the precise point we must decide in this

case. Where a statute is ambiguous or silent, we may look to the

statute’s legislative history to determine congressional intent.

See, e.g., Burlington N. R.R. v. Okla. Tax Commn., 481 U.S. 454,

461 (1987). In this case, Congress directly addressed the

question at issue in the legislative history underlying section

4 Sec. 7805(a) provides in pertinent part that “the Secretary shall prescribe all needful rules and regulations for the enforcement of this title”. - 13 -

6320. Specifically, H. Conf. Rept. 105-599, at 265, 1998-3 C.B.

747, 1019, under the heading “Liens”, states in pertinent part:

The conference agreement generally follows the Senate amendment, except that taxpayers would have a right to a hearing after the Notice of Lien is filed. The IRS would be required to notify the taxpayer that a Notice of Lien had been filed within 5 days after filing. During the 30-day period beginning with the mailing or delivery of such notification, the taxpayer may demand a hearing before an appeals officer who has had no prior involvement with the taxpayer’s case. * * * This hearing right applies only after the first Notice of Lien with regard to each tax liability is filed. [Emphasis added.]

In short, the House conference report states that a taxpayer’s

right to an administrative hearing and judicial review under

section 6320 arises only with respect to the first lien that is

filed for a particular tax liability.

Where, as here, Congress has directly spoken to the precise

question at issue, and the intent of Congress is clear, that is

the end of the matter. Inasmuch as section 301.6320-1(b)(1) and

(2), Proced. & Admin. Regs., reiterates a procedural principle

that was unambiguously articulated by Congress in the legislative

history of section 6320, the regulation is valid and controlling

in this case. See Walliser v. Commissioner, 72 T.C. 433, 439

(1979) (sustaining the validity of section 1.274-2(b), Income Tax

Regs., where the regulation was “squarely based on the language

of the legislative history of section 274"). - 14 -

F. Conclusion

There is no dispute that, although petitioner received

notice of the lien that respondent filed in Florida in October

2002, petitioner did not submit to respondent a request for an

administrative hearing. Consistent with section 301.6320-1(b)(1)

and (2), Proced. & Admin. Regs., respondent’s Appeals Office was

not obliged to (and did not) provide petitioner with an

administrative hearing under section 6320 when petitioner

subsequently sought to challenge the Illinois lien filed in

February 2003. See Prakasam v. Commissioner, T.C. Memo. 2006-53.

It is well settled that respondent may not waive the statutory

period in which a taxpayer must request an administrative hearing

under sections 6320 and 6330. See Kennedy v. Commissioner, 116

T.C. 255, 262 (2001). The Appeals Office conducted an equivalent

hearing and issued to petitioner a decision letter. The decision

letter in question does not constitute a notice of determination

that would permit petitioner to invoke the Court’s jurisdiction

under section 6320. See, e.g., id. at 263. Accordingly, we are

obliged to dismiss this case for lack of jurisdiction.

To reflect the foregoing,

An Order of Dismissal for

Lack of Jurisdiction will be

entered.