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6330 Annotations: Judicial Review of Appeals Determinations: Equivalent Hearing- Levy Notice of Levy
and Right to Hearing: Judicial Review of Appeals Determinations:
Equivalent Hearing [Dec.
54,316] Dudley and Dorothy Moorhous v. Commissioner
John
F. Rodgers, for the petitioners. Jeffrey E. Gold, for the
respondent. OPINION RUWE,
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 183. 1 The Court
agrees with and adopts the Opinion of the Special Trial Judge,
which is set forth below. OPINION
OF THE SPECIAL TRIAL JUDGE ARMEN,
Special Trial Judge: This matter is before the Court on
respondent's Motion To Dismiss For Lack Of Jurisdiction And To
Strike With Respect To Dudley Moorhous And As To Taxable Years
1987, 1988, and 1997. As explained in detail below, we shall grant
respondent's motion. Background On
or about March 16, 1999, respondent mailed to petitioner Dudley
Moorhous a Final Notice Of Intent To Levy And Notice Of Your Right
To A Hearing (notice of intent to levy) concerning his unpaid tax
liabilities for the years 1987 through 1992 and 1997. 2 Petitioner
Dudley Moorhous received the notice of intent to levy on March 18,
1999, as reflected on the U.S. Postal Service Form 3811, Domestic
Return Receipt, that was executed upon delivery of the notice. On
or about April 27, 1999, respondent mailed to petitioner Dorothy
Moorhous a notice of intent to levy concerning her unpaid tax
liabilities for the years 1989 through 1992. 3 There is no
dispute that the above-described notices of intent to levy were
mailed to petitioners' last known address. See sec.
6330(a)(2)(C) . Both of the above-described notices of
intent to levy stated in pertinent part: "If you don't pay
the amount you owe, make alternative arrangements to pay, or
request Appeals consideration within 30 days from the date of this
letter, we may take your property". On
On
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. On
On
In
response to the petition, respondent filed a Motion To Dismiss For
Lack Of Jurisdiction And To Strike With Respect To Dudley Moorhous
And As To Taxable Years 1987, 1988, And 1997. Respondent asserts
that the Court lacks jurisdiction with respect to petitioner
Dudley Moorhous on the ground that the "decision letter"
issued to him does not constitute a determination letter
sufficient to invoke the Court's jurisdiction pursuant to section 6330(d) .
Respondent contends that petitioner Dorothy Moorhous is the only
proper petitioner before the Court. However, respondent asserts
that the Court lacks jurisdiction with respect to petitioner
Dorothy Moorhous as to the taxable year 1997 on the ground that
neither the notice of intent to levy nor the determination letter
that was issued to her included that taxable year. 4 Petitioner
Dudley Moorhous filed an objection to respondent's motion to
dismiss asserting: (1) Respondent failed to file his motion to
dismiss in a timely manner; (2) where a husband and wife have
filed a joint return, the term "person" as used in section
6330 should be read as referring to both husband and
wife, thereby barring respondent from issuing separate notices of
intent to levy to petitioners; and (3) to the extent that
respondent's determination letter to petitioner Dorothy Moorhous
rejected petitioners' joint offer-in-compromise, petitioner Dudley
Moorhous should be permitted to file a petition challenging the
determination letter. This
matter was called for hearing at the Court's motions session held
in Washington, D.C. Counsel for both parties appeared at the
hearing and offered argument in respect of respondent's motion to
dismiss. During the hearing, counsel for respondent clarified that
respondent's motion to dismiss and to strike should only have
requested that the taxable year 1997 be stricken, inasmuch as the
petition clearly states that petitioners are challenging
petitioner Dudley Moorhous' individual liability for the taxable
years 1987 and 1988 and not petitioner Dorothy Moorhous' liability
for those years. Discussion Section 6331(a) provides
that if any person liable to pay any tax neglects or refuses to
pay such tax within 10 days after notice and demand for payment,
the Secretary is authorized to collect such tax by way of a levy
upon the person's property. Section 6331(d) provides
that at least 30 days prior to proceeding with enforced collection
by way of a levy on a person's property, the Secretary is obliged
to provide the person with a final notice of intent to levy,
including notice of the administrative appeals available to the
person. In
the Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206, sec. 3401 , 112 Stat. 685,
746, Congress enacted new sections
6320 (pertaining to liens) and 6330 (pertaining to
levies) to provide protections for taxpayers in tax collection
matters. Section 6330 generally
provides that the Commissioner cannot proceed with enforced
collection by way of levy until the taxpayer has been given notice
of and the opportunity for an administrative review of the matter
(in the form of an Appeals Office hearing) and, if dissatisfied,
the taxpayer may seek judicial review of the administrative
determination. See Davis v. Commissioner [Dec. 53,969 ], 115 T.C. 35,
37 (2000); Goza v. Commissioner [Dec. 53,803 ], 114 T.C.
176, 179 (2000). Section 6330(a) provides in
pertinent part that the Secretary shall notify a person in writing
of his or her right to an Appeals Office hearing regarding a
notice of intent to levy by mailing such notice by certified or
registered mail, return receipt requested, to such person's last
known address. Section
6330(a)(2) provides that the prescribed notice shall be
provided not less than 30 days before the day of the first levy
with respect to the amount of the unpaid tax for the taxable
period. Further, section
6330(a)(3)(B) provides that the prescribed notice shall
explain that the person has the right to request an Appeals Office
hearing during the 30-day period under paragraph (2). Section 6330(c) prescribes
the matters that may be raised by a taxpayer at an Appeals Office
hearing. In sum, section
6330(c) provides that a taxpayer may raise collection
issues such as spousal defenses, the appropriateness of the
Commissioner's intended collection action, and possible
alternative means of collection, such as an offer-in-compromise. Section
6330(c)(2)(B) provides that the existence and amount of
the underlying tax liability can be contested at an Appeals Office
hearing only if the taxpayer did not receive a notice of
deficiency for the taxes in question or did not otherwise have an
earlier opportunity to dispute such tax liability. See Sego v.
Commissioner [Dec. 53,938 ], 114 T.C.
604, 609 (2000); Goza v. Commissioner, supra. Where
the Appeals Office issues a determination letter to a taxpayer
following an administrative hearing regarding a notice of intent
to levy, section
6330(d)(1) provides that the taxpayer will have 30 days
following the issuance of such determination letter to file a
petition for review with the Tax Court or Federal District Court.
See Offiler v. Commissioner [Dec. 53,912 ], 114 T.C.
492, 498 (2000). We have held that the Court's jurisdiction under sections 6320 and 6330
depends on the issuance of a valid determination letter and the
filing of a timely petition for review. See Meyer v.
Commissioner [Dec. 54,109 ], 115 T.C.
417, 421 (2000); Offiler v. Commissioner, supra at 498. 1.
Petitioner Dudley Moorhous' Failure To Make a Timely Request for
an Administrative Hearing On
On
On
or about 2.
Equivalent Hearing In
lieu of a hearing under section
6330(b) , the Appeals Office granted petitioner Dudley
Moorhous a so-called equivalent hearing. Consistent with the
Court's holding in Kennedy v. Commissioner [Dec.
54,315 ], 116 T.C. -- (2001), we hold that the decision
to conduct an equivalent hearing did not result in a waiver by
respondent of the time restrictions within which petitioner Dudley
Moorhous was required to request an Appeals Office hearing under section
6330 . 5 3.
Decision Letter On
As
previously discussed, because petitioner Dudley Moorhous failed to
file a timely request for an Appeals Office hearing, the Appeals
Office was not obliged to conduct such a hearing. In this regard,
the decision letter issued to petitioner Dudley Moorhous was not,
and did not purport to be, a determination letter pursuant to section 6320 or section 6330 . See Kennedy
v. Commissioner, supra; Offiler v. Commissioner, supra
at 495. Consistent
with the foregoing, we shall grant respondent's motion to dismiss
for lack of jurisdiction as to petitioner Dudley Moorhous on the
ground that the Appeals Office did not issue a determination
letter to petitioner Dudley Moorhous pursuant to section
6330 due to petitioner Dudley Moorhous' failure to file
a timely request for an Appeals Office hearing pursuant to section
6330(a)(2) and (3)(B)
and (b) . In addition, we shall
strike all references in the petition to the taxable years 1987
and 1988 because those years relate solely to petitioner Dudley
Moorhous; likewise, we shall strike all references to the taxable
year 1997 because (1) such year relates to petitioner Dudley
Moorhous and (2) that year was not included in the notice of
intent to levy and the determination letter that were issued to
petitioner Dorothy Moorhous. 4.
Petitioners' Arguments Petitioners
contend that because petitioners filed joint returns for a number
of the years in issue, the term "person" as used in section 6330 should be read
as referring to both husband and wife as a single unit, thereby
barring respondent from issuing separate notices of intent to levy
to them. Petitioners'
contention finds no support in the express language of section 6330 . Simply put, section 6330 does not
direct the Commissioner to treat a husband and wife who have filed
a joint return as a single person for purposes of that provision.
Moreover, petitioners' argument conflicts with section 6013(d) , which
provides that "if a joint return is made, the tax shall be
computed on the aggregate income and the liability with respect to
the tax shall be joint and several." Because a husband and
wife are treated as jointly and severally liable for the tax due
on a joint return, it follows that the Commissioner may elect to
pursue one or both the spouses for the collection of the tax.
Under the circumstances, we hold that respondent was free to issue
a separate notice of intent to levy to petitioner Dudley Moorhous
before issuing a similar notice to petitioner Dorothy Moorhous. 6 Because
petitioners are not treated as one person under section 6330 , petitioner
Dudley Moorhous may not join in challenging the determination
letter issued to petitioner Dorothy Moorhous. Petitioners
also contend that to the extent that respondent's determination
letter to petitioner Dorothy Moorhous served as a rejection of
petitioners' joint offer-in-compromise, petitioner Dudley Moorhous
should be permitted to file a petition challenging the
determination letter. Again, petitioners' argument finds no
support in section
6330 . Although section
6330(c)(2)(A)(iii) provides that a taxpayer may make an
offer-in-compromise during an Appeals Office hearing, there is no
support for petitioners' contention that petitioner Dudley
Moorhous should be relieved of the obligation to comply with the
time requirements for filing an Appeals Office hearing pursuant to
section 6330(a) . In the
end, petitioners' position begs the question why petitioner Dudley
Moorhous did not timely file a request for an administrative
hearing in response to the notice of intent to levy issued to him. As
final matter, we reject petitioners' argument that respondent's
motion to dismiss is untimely. It is well settled that questions
of jurisdiction may be raised by either party or the Court sua
sponte at any stage of the proceedings. See Smith v.
Commissioner [Dec.
47,113 ], 96 T.C. 10, 13-14 (1991). Consistent
with the preceding discussion, we shall grant respondent's motion
in that we shall dismiss this case for lack of jurisdiction as to
petitioner Dudley Moorhous, and all allegations in the petition
pertaining to the taxable years 1987, 1988, and 1997 will be
deemed to be stricken therefrom. In
order to reflect the foregoing, An
appropriate order granting respondent's motion to dismiss for lack
of jurisdiction and to strike will be issued. 1
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
The notice of intent to levy stated that petitioner Dudley
Moorhous owed amounts from prior notices, additional penalties,
and interest totaling $24,944.87, $21,014.05, $17,849.47,
$10,228.66, $9,947.46, $19,333.82, and $101.23 for the years 1987,
1988, 1989, 1990, 1991, 1992, and 1997, respectively. 3
The notice of intent to levy stated that petitioner Dorothy
Moorhous owed amounts from prior notices, additional penalties,
and interest totaling $17,909.98, $10,266.83, $9,980.32, and
$19,400.89, for the years 1989, 1990, 1991, and 1992,
respectively. 4
Originally, respondent asserted that the Court lacks jurisdiction
with respect to petitioner Dorothy Moorhous as to the taxable
years 1987, 1988, and 1997. However, respondent later modified his
position, as discussed in the text, infra. 5
In Kennedy v. Commissioner [Dec. 54,315 ], 116 T.C. --
(2001), we noted that sec.
6330 does not authorize the Commissioner to waive the
time restrictions imposed therein. Further, in Offiler v.
Commissioner [Dec. 53,912 ], 114 T.C.
492, 498 (2000), we indicated that where the taxpayer failed to
file a timely request for an Appeals Office hearing regarding a
notice of intent to levy, an Appeals Office review of the
taxpayer's case pursuant to the Collection Appeals Program did not
result in a determination within the meaning of sec. 6320 or sec. 6330 . 6
Indeed, in 1998, the Congress directed the Commissioner to send,
whenever practicable, any notice relating to a joint return under sec. 6013 separately to
each individual filing the joint return. See Internal Revenue
Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3201(d) , (g)(1) , 112 Stat. 685,
740. [2002-1
USTC ¶50,309] Charles M.F. Van Gaasbeck, Plaintiff v. United
States of America, Defendant U.S.
District Court, Dist. Nev., CV-S-01-1004-KJD (PAL), DAWSON,
District Judge: This
matter is before the Court on Defendant's Motion to Dismiss (#4).
The Court has also considered Plaintiff's Objection (#6) and the
Declaration of Traci L. Patterson (#5). FACTUAL
HISTORY On
ANALYSIS Plaintiff
received the Notice of Intent to Levy on This
Court cannot consider the merits of Plaintiff's appeal for the
reasons that follow. First, the U.S. District Court lacks
jurisdiction over Plaintiff's claims because his request for
hearing was made almost 60 days late. Second, there is no right to
judicial review of decisions made by an appeals officer at an
equivalent hearing. See Moorhous v. Commissioner [CCH Dec.
54,316], 116 T.C. 263 (2001), Kennedy v. Commissioner [CCH
Dec. 54,315], 116 T.C. 255 (2001). Finally, even ignoring the
untimeliness of Plaintiff's claim and the fact that there is no
appeal from an equivalent hearing, any jurisdiction over this
matter would be in the tax court. Although Plaintiff alleges that
a tax court is not a court of law and is barred from ruling on
matters of law, he provides no authority for those statements. To
the contrary of Plaintiff's argument, 26 U.S.C. §6330(d)(1)
provides that the right to judicial review is in the tax court,
unless that court does not have jurisdiction. Federal
Courts are courts of limited jurisdiction. They can only
adjudicate those cases which the Constitution and Congress
authorize them to adjudicate. See Kokkonen v. Guardian Life
Ins. Co., 511 U.S 375 (1994). It is well established that the
tax court is a court of limited jurisdiction and that it may
exercise jurisdiction to the extent authorized by Congress. See
26 U.S.C. §7442; Commissioner v. McCoy [87-2 USTC
¶13,736], 484 U.S. 3, 7 (1987). Pursuant to 26 U.S.C. §6213(a),
the tax court has jurisdiction to redetermine deficiencies
assessed by the Commissioner. Pursuant to 28 U.S.C. §1340, a
federal district court has jurisdiction over taxpayer actions for
a refund of taxes paid in full, but not for assessed but unpaid
taxes. See Flora v. United States [60-1 USTC ¶9347], 362
U.S. 145 (1960); Geurkink Farms, Inc. v. United States
[71-2 USTC ¶9692], 452 F2d 643, (7th Cir. 1971). A taxpayer may
challenge a tax liability before paying the deficiency by filing a
timely petition with the tax court. See Scar v. Commissioner
[87-1 USTC ¶9277], 814 F.2d 1363, 1366 (9th Cir. 1987). A tax
court is a court of law notwithstanding Plaintiffs' unsupported
statement to the contrary. See Freytag v. Commissioner
[91-2 USTC ¶50,321], 501 U.S. 868 (1991). The burden of
establishing jurisdiction over civil actions rests upon the party
asserting it. Kokkonen, 377. CONCLUSION Here,
Plaintiff failed to file a timely petition. His request deals with
taxes and penalties assessed but not paid. The Court cannot
consider his challenges to the authority of the individual issuing
the notice of intent to levy, the early termination of the
equivalent hearing, denial of representation at the equivalent
hearing, or whether there is an underlying income tax liability,
because this Court does not have jurisdiction. The Court cannot
address the merits of any dispute unless it is first established
that there is subject-matter jurisdiction. Plaintiff has failed to
meet his burden to establish that the Court has subject-matter
jurisdiction. The
District Court lacking jurisdiction, Defendant's Motion to Dismiss
(#4) is granted and Plaintiff's Complaint is dismissed with
prejudice. [Dec.
55,151(M)] Paul Everman v.
Commissioner.
The
Tax Court lacked jurisdiction over an individual's untimely
challenge of a notice of deficiency. The taxpayer's petition was
filed nearly a year and a half after the notice of deficiency was
issued. Moreover, his claim that the notice was invalid because it
was not signed by the Secretary or an authorized delegate was
without merit. [Code Secs. 6330 and 6331]
The
Tax Court lacked jurisdiction over an individual's challenge of an
adverse equivalency hearing determination. In his petition, the
taxpayer admitted that he failed to file his administrative
hearing request within the prescribed 30-day period. The taxpayer
unsuccessfully argued that the Appeals office erred in conducting
an equivalency hearing instead of an administrative hearing, and
that the notice of intent to levy was invalid because it was not
signed. Jerry
Arthur Jewett, for the petitioner. Michelle M. Lippert and Julie
A. Pals, for the respondent. MEMORANDUM
OPINION ARMEN,
Special Trial Judge: This matter is before the Court on
respondent's motion to dismiss for lack of jurisdiction, as
supplemented. Respondent contends that the Court lacks
jurisdiction over the petition on the grounds that: (1) The
petition was not filed within the 90-day period prescribed in
sections 6213(a) and 7502(a); and (2) respondent did not issue to
petitioner a notice of determination concerning collection actions
that would allow petitioner to invoke the Court's jurisdiction
under sections 6320 and/or 6330.1 As
discussed in detail below, we shall grant respondent's motion to
dismiss, as supplemented. The
record establishes and/or the parties do not dispute the
following: On
The
notice of deficiency was issued by the Internal Revenue Service
(IRS) District Director in Cincinnati, Ohio. The notice of
deficiency was signed "C. Ashley Bullard by BL". At the
time that the notice of deficiency was issued, C. Ashley Bullard
was the IRS District Director in Cincinnati, Ohio.2 Petitioner
did not file a petition for redetermination with the Court within
the 90-day period prescribed in section 6213(a). Consequently, on B.
Notice of Federal Tax Lien On
C. Final
Notice of Levy On
On
E.
The Appeals Office Hearing On
At
the start of the hearing, the Appeals officer stated that because
petitioner's request for an administrative hearing was received
more than 30 days after the issuance of the final notice of intent
to levy (and, a fortiori, more than 30 days after the issuance of
the notice required by section 6320), the hearing would be
conducted as an "equivalent" hearing. During
the hearing, petitioner requested that the Appeals officer verify
that the persons who issued the final notice of intent to levy and
the notice required by section 6320 and who filed the Notice of
Federal Tax Lien were all authorized to do so. Petitioner also
questioned the validity of the final notice of intent to levy
because it was not signed. F.
Respondent's Decision Letter On
G.
The Petition On
Because
the final notice of intent to levy * * * sent to Petitioner was
not sent by the Secretary or his authorized delegate, even though
petitioner's appeal was filed after the 30 day time period, it is
still timely, and the Appeals Office determination to only grant
petitioner an equivalency hearing was in error. H.
Respondent's Motion To Dismiss As
stated, respondent filed a Motion to Dismiss for Lack of
Jurisdiction. Respondent contends that the Court lacks
jurisdiction on the grounds that: (1) The petition was not timely
filed with regard to the notice of deficiency dated Pursuant
to notice, 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 filed
with the Court a written statement pursuant to Rule 50(c). After
the hearing, the Court issued Orders directing respondent to file
supplements to his motion to dismiss. Respondent complied with the
Court's Orders. Discussion The
Tax Court is a court of limited jurisdiction. We may exercise
jurisdiction only to the extent expressly authorized by statute. Breman
v. Commissioner [Dec.
33,760], 66 T.C. 61, 66 (1976). 1.
The Court's Jurisdiction To Redetermine a Deficiency The
Court's jurisdiction to redetermine a deficiency depends on the
issuance of a valid notice of deficiency and a timely filed
petition. Rule 13(a), (c); Monge v. Commissioner [Dec.
45,827], 93 T.C. 22, 27 (1989); Normac, Inc. v.
Commissioner [Dec.
44,539], 90 T.C. 142, 147 (1988). Section 6212(a)
expressly authorizes the Commissioner, after determining a
deficiency, to send a notice of deficiency to the taxpayer by
certified or registered mail. The taxpayer, in turn, has 90 days
(or 150 days if the notice is addressed to a person outside of the
United States) from the date the notice of deficiency is mailed to
file a petition in this Court for a redetermination of the
deficiency. Sec. 6213(a). Pursuant to section 7502(a), a timely
mailed petition will be treated as though it were timely filed. The
record shows that respondent mailed the notice of deficiency in
question to petitioner on Petitioner's
only contention is that the notice of deficiency is invalid
because it was not signed by the Secretary or an authorized
delegate. Petitioner's argument is meritless. The
notice of deficiency in question was issued by the IRS District
Director in Cincinnati, Ohio, and was signed "C. Ashley
Bullard [the IRS District Director in Cincinnati, Ohio] by
BL". It is well settled that the Secretary or his delegate
may issue notices of deficiency. Secs. 6212(a), 7701(a)(11)(B) and
(12)(A)(i). The Secretary's authority to issue notices of
deficiency has been delegated to District Directors and to
Directors of IRS Service Centers. See Nestor v. Commissioner
[Dec.
54,655], 118 T.C. 162, 165 (2002), and cases cited
therein. Moreover, there is no requirement that a notice of
deficiency be signed. Sec. 6212; Pendola v. Commissioner [Dec.
29,017], 50 T.C. 509, 513-514 (1968); Elmore v.
Commissioner [Dec.
55,133(M)], T.C. Memo. 2003-123; Fox v. Commissioner
[Dec.
49,116(M)], T.C. Memo. 1993-277 n.4, affd. without
published opinion [95-2
USTC ¶50,637] 69 F.3d 543 (9th Cir. 1995). Consistent
with the foregoing, we reject petitioner's contention that the
notice of deficiency dated
2.
The Court's Jurisdiction To Review Collection Actions Sections
6320 and 6330 generally provide that the Commissioner must give a
taxpayer notice that a Federal tax lien has been filed and notice
that the Commissioner intends to levy on the taxpayer's property
and offer the taxpayer an opportunity for an administrative review
of those matters (in the form of an Appeals Office hearing). If
the taxpayer is dissatisfied with an Appeals Office determination
regarding a collection action, the taxpayer may seek judicial
review of the administrative determination in the Tax Court or
Federal District Court, as appropriate. See Davis v.
Commissioner [Dec.
53,969], 115 T.C. 35, 37 (2000); Goza v.
Commissioner [Dec.
53,803], 114 T.C. 176, 179 (2000). Sections
6320(a) and 6330(a) provide in pertinent part that the Secretary
shall notify a person in writing of his or her right to an Appeals
Office hearing regarding (1) a notice required by section 6320 or
(2) a final notice of intent to levy by, among other methods,
mailing such notice by certified or registered mail to the
person's last known address. Further, sections 6320(a)(3)(B) and
6330(a)(3)(B) provide that the prescribed notification shall
explain that the person has the right to request an Appeals Office
hearing during a specified 30-day period. Where
the Appeals Office issues a determination letter to a taxpayer
following an administrative hearing regarding a notice required by
section 6320 and/or a final notice of intent to levy, sections
6320(c) and 6330(d)(1) provide that the taxpayer shall have 30
days following the issuance of such determination letter to file a
petition for review with the Tax Court or Federal District Court,
as appropriate. See Offiler v. Commissioner [Dec.
53,912], 114 T.C. 492, 498 (2000). 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 [Dec.
54,494], 117 T.C. 122, 125 (2001); Offiler v.
Commissioner, supra at 498. The
record shows that respondent sent petitioner (1) a notice required
by section 6320 on Respondent
cites Kennedy v. Commissioner [Dec.
54,315], 116 T.C. 255 (2001), in support of his motion
to dismiss that part of the petition challenging the decision
letter dated Petitioner
concedes in his petition that his request for an administrative
hearing was not filed with respondent within the 30-day period
prescribed in section 6330(a). Petitioner nevertheless contends
that the Appeals Office erred in conducting an equivalent hearing,
as opposed to an administrative hearing under section 6330, on the
ground the final notice of intent to levy was invalid because it
was not signed by the Secretary or an authorized delegate. We
disagree. It
is well settled that the Secretary or his delegate (including the
Commissioner) may issue a notice required by section 6320 or a
final notice of intent to levy. Secs. 6320(a), 6330(a),
7701(a)(11)(B) and (12)(A)(i), 7803(a)(2); see Craig v.
Commissioner [Dec.
54,933], 119 T.C. 252, 263 (2002); Wilson v.
Commissioner [Dec.
54,886(M)], T.C. Memo. 2002-242; secs.
301.6320-1(a)(1), 301.6330-1(a)(1), 301.7701-9, Proced. &
Admin. Regs. The Commissioner's authority to file a notice of
Federal tax lien and/or issue a final notice of intent to levy has
been delegated to a host of Internal Revenue Service personnel,
including (in the case of Federal tax liens) various managers
responsible for collection matters and GS-9 and above revenue
officers and (in the case of levies on property in the hands of
third parties) GS-9 and above revenue officers. See Delegation
Order No. 191 (Rev. 2; Oct. 1, 1999) (Rev. 3; June 11, 2001),
pertaining to levies; Delegation Order No. 196 (Rev. 4; Oct. 4,
2000), pertaining to liens. Consistent with these delegations of
authority, the Notice of Federal Tax Lien and the notice required
by section 6320, which were initiated by Revenue Officer John
Stetsko and authorized by Acting Technical Support Group Manager
Brenda McCullough, and the final notice of intent to levy, which
was issued by Revenue Officer Stetsko, are valid. Finally, in
connection with the foregoing, we observe that there is no
statutory requirement that a final notice of intent to levy be
signed. Cf. Pendola v. Commissioner [Dec.
29,017], 50 T.C. 509, 513-514 (1968) (a notice of
deficiency need not be signed in order to be valid); Fox v.
Commissioner [Dec.
49,116(M)], T.C. Memo. 1993-277 n.4 (same), affd.
without published opinion [95-2
USTC ¶50,637] 69 F.3d 543 (9th Cir. 1995); Elmore
v. Commissioner [Dec.
55,133(M)], T.C. Memo. 2003-123 (same for notice of
determination to proceed with levy). Consistent
with the preceding discussion, we conclude that we lack
jurisdiction in this case for the reasons set forth in
respondent's motion to dismiss, as supplemented. In
order to give effect to the foregoing, An
order granting respondent's motion to dismiss for lack of
jurisdiction, as supplemented, will be entered. 1
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. [Dec.
55,182(M)] Thomas Herrick v.
Commissioner. [Code
Sec. 6330]
An
individual's suit challenging an adverse equivalency hearing
determination was dismissed for lack of jurisdiction. Even though
a revenue officer granted the taxpayer an extension of time to
request a Collection Due Process (CDP) hearing, such an extension
was unauthorized and, as a result, the taxpayer's request was
deemed untimely. Because the taxpayer received an equivalency
decision letter, and not a notice of deficiency, the Tax Court
lacked jurisdiction to review his appeal. Thomas
Herrick, pro se. Karen Lynne Baker and Louise R. Forbes,
for the respondent. MEMORANDUM
OPINION ARMEN,
Special Trial Judge: This matter is before the Court on
respondent's Motion To Dismiss For Lack Of Jurisdiction, as
supplemented. Respondent contends that the Court lacks
jurisdiction over the petition on the ground that respondent did
not issue a notice of determination to petitioner pursuant to
sections 6320 or 6330.1 As
explained in detail below, we shall dismiss this case for lack of
jurisdiction on the ground that petitioner failed to make a timely
request for an administrative hearing and, therefore, respondent
was not obliged to (and did not) issue a notice of determination
to petitioner. Background The
record reflects and/or the parties do not dispute the following: On
On
On
or about On
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 §§6320 and/or 6330. On
Pursuant
to prior notice, this matter was called for hearing at the Court's
motions session in Washington, D.C. There was no appearance by or
on behalf of petitioner at the hearing, nor did petitioner file a
written statement with the Court pursuant to Rule 50(c), the
provisions of which were explained by the Court in its Order
calendaring respondent's motion for hearing. Counsel for
respondent appeared at the hearing and offered argument in support
of respondent's motion to dismiss. Following
the hearing, respondent filed a Supplement, a Second Supplement,
and a Third Supplement to his motion to dismiss. Discussion Section
6331(a) provides that if any person liable to pay any tax neglects
or refuses to pay such tax within 10 days after notice and demand
for payment, then the Secretary is authorized to collect such tax
by levy upon the person's property. Section 6331(d) provides that,
at least 30 days prior to enforcing collection by way of a levy on
the person's property, the Secretary is obliged to provide the
person with a final notice of intent to levy, including notice of
the administrative appeals available to the person. Section
6330(a) provides in pertinent part that the Secretary shall notify
a person in writing of his or her right to an Appeals Office
hearing regarding a proposed levy by mailing such notice by
certified or registered mail to such person at his or her last
known address. Section
6330(a)(2) provides that the prescribed notice shall be provided
not less than 30 days before the day of the first levy with
respect to the amount of the unpaid tax for the taxable period.
Further, section 6330(a)(3)(B) provides that the prescribed notice
shall explain that the person has the right to request an Appeals
Office hearing during the 30-day period under paragraph (2). Where
the Appeals Office issues a notice of determination to the
taxpayer following an administrative hearing regarding a levy
action, section 6330(d)(1) provides that the taxpayer will have 30
days following the issuance of such determination letter to file a
petition for review with the Tax Court or Federal District Court,
as may be appropriate. See Offiler v. Commissioner [Dec.
53,912], 114 T.C. 492, 498 (2000). We have held that
the Court's jurisdiction under section 6330 depends on the
issuance of a valid determination letter and the filing of a
timely petition for review. See Sarrell v. Commissioner [Dec.
54,494], 117 T.C. 122, 125 (2001); Offiler v.
Commissioner, supra at 498. On
Petitioner
contends that the 30-day period did not expire on In
Kennedy v. Commissioner [Dec.
54,315], 116 T.C. 255, 262 (2001), we held that the
Commissioner is not authorized to waive the time restrictions
imposed in section 6330. Consistent with Kennedy v.
Commissioner, supra, Revenue Officer Chivers was not
authorized to extend the period within which petitioner was
authorized to file a request for an Appeals Office hearing. It
follows that petitioner's request for an Appeals Office hearing,
filed with respondent on Under
the circumstances, the Appeals Office was not obliged to conduct
an administrative hearing as contemplated under section 6330(b).
In lieu of an Appeals Office hearing under section 6330(b), the
Appeals Office granted petitioner a so-called equivalent hearing.
Thereafter, the Appeals Office issued a decision letter to
petitioner stating that respondent would proceed with collection.
The decision letter does not constitute a notice of determination
under section 6330(d), and it does not provide a basis for
petitioner to invoke the Court's jurisdiction. See Kennedy v.
Commissioner, supra at 263; see also Moorhous v.
Commissioner [Dec.
54,316], 116 T.C. 263, 270 (2001); cf. Craig v.
Commissioner [Dec.
54,933], 119 T.C. 252, 258-259 (2002). Consistent
with the preceding discussion, we hold that the petition in this
case was not filed in response to a notice of determination
sufficient to confer jurisdiction on the Court under section 6330.
Accordingly, we shall grant respondent's motion to dismiss, as
supplemented. To
reflect the foregoing, An
appropriate Order Of Dismissal For Lack Of Jurisdiction will be
entered.
[2002-2
USTC ¶50,772] William A. Fabricius, et al., Plaintiffs v. United
States of America, Defendant U.S.
District Court, East. Dist. Calif., CV-F-02-5597 REC DLB,
10/18/2002, 2002 U.S. Dist. LEXIS 21579. William
Fabricius, Catherine D. Fabricius, Ducor, Calif., pro se.
David Cheng, Department of Justice, Washington, D.C. 20530, for
defendant. ORDER
GRANTING MOTION TO DISMISS COYLE,
District Judge: On
I.
BACKGROUND INFORMATION On
II.
LEGAL STANDARD The
United States may only be sued to the extent it has consented to
suit. United States v. Dalm [90-1
USTC ¶50,154 ; 90-1
USTC ¶60,012 ], 494 U.S. 596, 108 L.Ed.2d 548, 110
S.Ct. 1361 (1990). Any waiver by the United States of its
sovereign immunity cannot be implied but must be unequivocally
expressed, and such waivers must be strictly construed in favor of
the sovereign. Library of Congress v. Shaw, 478 U.S. 310,
318, 92 L.Ed.2d 250, 106 S.Ct. 2957 (1986). Where there is a lack
of consent to suit by the United States, dismissal of the action
for lack of subject-matter jurisdiction is required. See United
States v. Mitchell, 463 U.S. 206, 77 L.Ed.2d 580, 103 S.Ct.
2961 (1983); Gilbert v. Da Grossa [85-2 USTC ¶9665 ],
756 F.2d 1455 (9th Cir. 1985). III.
ANALYSIS The
plaintiffs' arguments are unclear and difficult to follow, both in
the complaint and opposition memorandum. They describe their claim
as follows: "The entire claim in Plaintiff's [sic] Compliant
[sic] against the Internal Revenue Service (IRS) of the
United States Government with regards to the tax at issue, [sic]
is that the IRS did not follow Applicable Law and Administrative
Procedures in open violation of the law that the IRS is required
to follow in accordance with IRC §6330(c)(1)." It appears
that the plaintiffs are challenging both the procedures used by
the IRS during this process as well as the result of the hearing.
For the reasons described below, this Court does not have
jurisdiction over such a challenge and therefore the case must be
dismissed. I.R.C.
§6331(a) provides that if any person fails to pay a tax liability
within 10 days after notice and demand for payment, the Secretary
of the Treasury is authorized to collect such tax by way of a levy
upon the person's property. Section 6331(d) provides that at least
30 days prior to proceeding with enforced collection by way of a
levy on a person's property, the Secretary is obliged to provide
the person with a final notice of intent to levy, including notice
of the administrative appeals available to the person. In
the Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress enacted
new sections 6320 (pertaining to liens) and 6330 (pertaining to
levies) to provide protections for taxpayers in tax collection
matters. Section 6330 generally provides that the Commissioner
cannot proceed with enforced collection by way of levy until the
taxpayer has been given notice of and the opportunity for an
administrative review of the matter (in the form of an Appeals
Office hearing) and, if dissatisfied, the taxpayer may seek
judicial review of the administrative determination. See Davis
v. Commissioner [CCH Dec. 53,969 ],
115 T.C. 35, 37 (2000); Goza v. Commissioner [CCH Dec. 53,803 ],
114 T.C. 176, 179 (2000). Section
6330(a) provides in pertinent part that the Secretary shall notify
a person in writing of his or her right to an Appeals Office
hearing regarding a notice of intent to levy by mailing such
notice by certified or registered mail, return receipt requested,
to such person's last known address. Section 6330(a)(2) provides
that the prescribed notice shall be provided not less than 30 days
before the day of the first levy with respect to the amount of the
unpaid tax for the taxable period. Further, section 6330(a)(3)(B)
provides that the prescribed notice shall explain that the person
has the right to request an Appeals Office hearing during the
30-day period under paragraph (2). Section
6330(c) prescribes the matters that may be raised by a taxpayer at
an Appeals Office hearing. In sum, section 6330(c) provides that a
taxpayer may raise collection issues such as spousal defenses, the
appropriateness of the Commissioner's intended collection action,
and possible alternative means of collection, such as an
offer-in-compromise. Section 6330(c)(2)(B) provides that the
existence and amount of the underlying tax liability can be
contested at an Appeals Office hearing only if the taxpayer did
not receive a notice of deficiency for the taxes in question or
did not otherwise have an earlier opportunity to dispute such tax
liability. See Sego v. Commissioner [CCH Dec. 53,938 ],
114 T.C. 604, 609 (2000); Goza v. Commissioner [CCH Dec. 53,803 ],
114 T.C. 176, 179 (2000). The
IRS issued a Notice of Intent to Levy to plaintiffs on August 24,
2001. This notice also informed plaintiffs that they had the right
to request a Collection Due Process hearing ("CDP")
within 30 days of the date of the letter. 26 C.F.R. 301.6330-1(c).
The 30-day period ended on September 23, 2001. Because this was a
Sunday, the regulations consider that a CPD request dated the next
day, Monday, September 24, 2001 would have been timely. Plaintiffs
request was not until September 25, 2001, however, 32 days after
the notice. As a consequence of petitioner's failure to make a
timely request for an Appeals Office hearing, the Appeals Office
was not obliged to conduct the administrative hearing contemplated
under section 6330(b). See id. In lieu of the CDP, the IRS
granted plaintiffs a so-called "equivalent hearing" on
January 23, 2002, as provided under the regulations. 26 C.F.R.
301.6330-1(i). Although a CDP determination may be appealed under
I.R.C. §6330(d), the regulations state that
"equivalent" hearings cannot be appealed in court. 26
C.F.R. 301.6330-1(i), Q-I5/A-I5. See also Moorhous v.
Commissioner [CCH Dec. 54,316 ],
116 T.C. 263 (2001), Kennedy v. Commissioner [CCH Dec. 54,315 ],
116 T.C. 255 (2001). Thus there is no jurisdiction for this Court
to hear an appeal of the Decision Letter issued as a result of the
"equivalent" hearing. 2 Furthermore,
because plaintiffs are contesting the underlying income tax
liability, even if the Code permitted an appeal, it could only
have been made to the United States Tax Court. See I.R.C.
§6330(d)(1) (appeal must be to Tax Court unless the Tax court
does not have jurisdiction over the underlying tax liability). 3 Other
courts addressing similar cases, often by pro se
plaintiffs, have reached the same result, dismissing for lack of
subject matter jurisdiction, generally in unpublished opinions. See,
e.g. Van Gaasbeck v. United States [2002-1
USTC ¶50,309 ], CV-S-01-1004-KJD (PAL), 2002 U.S.
Dist. LEXIS 7693 (D. Nev. Plaintiffs
also raise some other claims which appear to be allegations of due
process violations regarding the notice they received and the
counting method utilized by the I.R.C. and Treasury Regulations.
There is no jurisdiction over these claims. See, e.g.,
Tornichio v. United States [2002-1
USTC ¶50,411 ], No. 5:02 CV 0351, 2002 U.S. Dist.
LEXIS 7363, at *8 (N.D. Ohio Thus
the United States motion to dismiss for lack of subject matter
jurisdiction is granted. As described above, the plaintiffs cannot
get relief in any court because they filed their request for a CDP
too late. Furthermore, even if they had filed on time, only the
U.S. Tax Court would have jurisdiction over the case. ACCORDINGLY,
the defendant's motion to dismiss is granted and the plaintiffs'
cause of action is dismissed. JUDGMENT
IN A CIVIL ACTION DECISION
BY COURT: This action came to trial or hearing before the Court.
The issues have been tried or heard and a decision has been
rendered. IT
IS HEREBY ORDERED AND ADJUDGED that Defendant's motion to dismiss
is GRANTED. This action is DISMISSED. JUDGMENT IS ENTERED for
Defendant. 1
This is clearly not a motion, but rather an opposition to the
motion, and will be treated as such. 2
The IRS issued its Decision Letter on 3
A plaintiff who timely files in U.S. District Court instead of Tax
Court is allowed to file in the Tax Court after dismissal by the
District Court. I.R.C. §6330(d)(1). This does not appear to help
the plaintiffs, however, because they filed in this Court after
the applicable 30-day period had ended, therefore a case in the
Tax Court would likewise be untimely. Furthermore, this does not
apply anyway because plaintiffs have no right to appeal the
results of an "equivalent" hearing. See id. [2004-1
USTC ¶50,225] Living Care Alternatives of Utica,
Inc., Plaintiff v. United States of America, Internal Revenue
Service, Defendants. The
district court did not have subject matter jurisdiction to review
the adverse results of an equivalent hearing in which the IRS
upheld the validity of the filing of Notices of Federal Tax Liens.
The results of an equivalent hearing are not judicially
appealable. Although a Collection Due Process (CDP) hearing is
subject to judicial review, undisputed documentation established
that the taxpayer did not request a CDP hearing within the 30-day
period required by Code
Sec. 6320(a)(3)(B). The actual status of the hearing
conducted was, therefore, an equivalent hearing. [ Code
Sec. 6330] A
district court had jurisdiction to review the results of a
Collection Due Process hearing conducted with respect to Notices
of Intent to Levy. The taxpayer's appeal was filed within the
30-day period required by Code
Sec. 6330(d)(1). Applying an abuse of discretion
standard, the court sustained the hearing officer's determination
that the Notice of Intent of Levy was proper in light of the
taxpayer's failure to provide the IRS with any alternative
collection methods. Although a de novo standard may have
been appropriate if the taxpayer was challenging a finding with
respect to its underlying tax liability, the record clearly showed
that the validity of the underlying taxes which the taxpayer
failed to withhold was never at issue in the hearing. OPINION
AND ORDER
...The
Sixth Circuit recognizes two types of 12(b)(1) motions: a
"facial" attack challenging the sufficiency of the
plaintiff's factual allegations, in which all well-pleaded factual
allegations in the complaint are taken to be true; and a
"factual" attack challenging the actual fact of
subject-matter jurisdiction, which is analyzed under Fed. R. Civ.
P. 56 standards.... The difference is often significant, because
under a factual challenge the district court is empowered to weigh
evidence, and no presumptions apply as to the truthfulness of
plaintiff's allegations.... The Sixth Circuit has clearly
recognized that a district court is empowered [to] consider
evidence beyond the pleadings and to resolve factual disputes when
necessary to resolve challenges to subject-matter jurisdiction
under Rule 12(b)(1).
....[a]
waiver of the Federal Government's sovereign immunity must be
unequivocally expressed in statutory text, see, e.g.
United States v. Nordic Village, Inc. [ 92-1
USTC ¶50,109], 503 U.S. 30, 33-34, 37 (1992), and will
not be implied, Irwin v. Department of Veterans Affairs,
[498 U.S. 89] at 95. Moreover, a waiver of the Government's
sovereign immunity will be strictly construed, in terms of its
scope, in favor of the sovereign. See, e.g., United
States v. Williams [ 95-1
USTC ¶50,218], 514 U.S. 527, 431 (1995) (when
confronted with a purported waiver of the Federal Government's
sovereign immunity, the Court will "constru[e] ambiguities in
favor of immunity."); Library of Congress v. Shaw, 478
U.S. 310, 318 (1986); Lehman v. Nakshian, 453 U.S. 156, 161
(1981) ("[L]imitations and conditions upon which the
Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied").
The
judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Although
useful in resolving many cases without the necessity of trial, it
has also been recognized that the above rules provision is not
well suited to carrying out the review of agency action required
in this type of case. "Such a motion is designed to isolate
factual issues on which there is no genuine dispute ... [a]gency
action, however, is reviewed not tried." Lodge Tower
Condominium Ass'n v. Lodge Properties, Inc. 880 F.Supp. 1370,
1374 (D. Colo. 1995). As pointed out by Chief Judge Covello of the
District of Connecticut: "[A]
motion for summary judgment under rule 56 of the Federal Rules of
Civil Procedure ... makes no procedural sense when a district
court is asked to undertake judicial review of agency
action." Lodge Tower Condominium Ass'n v. Lodge
Properties, Inc. 880 F.Supp. 1370, 1374 (D. Colo. 1995); see
also Olenhausen v. Commodity Credit Corp., 42 F.3d 1560,
1579-80 (10th Cir. 1994) (expressly disapproving use of summary
judgment procedure in cases where a court is reviewing an
administrative action); CDI Information Services, Inc. v. Reno,
101 F.Supp.2d 546, 547 (E.D. Mich. 2000) (construing the parties
summary judgment memoranda as a motion and a cross-motion for
judgment); Orfanos v. Department of Health and Human Services,
896 F.Supp. 23, 26 (D. D.C. 1995). MRCA
Information Services v. United States [ 2000-2
USTC ¶50,683], 145 F.Supp.2d 194, 195 (D. Conn. 2000).
This Court will therefore follow the procedure employed by the
Eastern District of Michigan in CDI Information Services,
cited above, and treat the summary judgment memoranda here as
cross-motions for judgment on the pleadings seeking either
reversal or affirmance of the administrative agency's decision. ....Where
the validity of the tax liability is not properly part of the
appeal, the taxpayer may challenge the determination of the
appeals officer for abuse of discretion. In such cases, the
appeals officer's determination as to the appropriateness of
collection activity will be reviewed using an abuse of discretion
standard. H.
Rep. No. 105-599 at 266 (1988); see Stop-26 Riverbend,
Inc. v. United States of America [ 2003-1
USTC ¶50,360], 2003 WL 1908747 *1 (S.D. Oh. March 12,
2003) and cases there cited; see also Dudley's
Commercial and Industrial Coating, Inc. v. U. S. Internal Revenue
Service [ 2003-1
USTC ¶50,397], 292 F.Supp.2d 976, 985 (M.D. Tenn.
2003); Bonfante v. United States [ 2002-1
USTC ¶50,266], 2002 WL 373407 *5 (S.D. Oh. Jan. 29,
2002). An
abuse of discretion is an arbitrary action not justifiable in
light of the facts and circumstances presented in the record. Gonzalez
v. INS, 996 F.2d 808, 808 (6th Cir. 1993); Balani v. INS,
669 F.2d 1157, 1161 (6th Cir. 1982); NLRB v. Guernsey-Muskingum
Electric Coop., Inc., 285 F.2d 8, 11 (6th Cir. 1960). The
Sixth Circuit has held that an agency abuses its discretion if its
decision "was made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis...." Gonzalez, 996 F.2d at 808; Balani,
669 F.2d at 1161. Dudley's
Commercial and Industrial Coating, Inc. [ 2003-1
USTC ¶50,397], at 985. ....Under
the abuse of discretion standard, a determination will be affirmed
unless the Court determines with a "definite and firm
conviction" that a clear error of judgment has been
committed. Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578
(6th Cir. 1998). Bonfante
[ 2002-1
USTC ¶50,266], 2002 WL 373407 *6. In applying any
formulation of the test, however, it is well settled that the
court is not free to substitute its judgment for that of the
administrative agency. See generally, Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Cellnet
Communications, Inc. v. Federal Communications Comm'r, 149
F.3d 429 (6th Cir. 1998). ....In
balancing the need for efficient tax collection with alternative
collection methods you have failed to provide us with an
alternative collection that would satisfy your liability. On that
basis, we conclude that a Levy is the next reasonable step the
Service must take in its efforts to collect the tax liability....
In the absence of a reasonable collection alternative, the intent
to levy should be sustained, albeit more intrusive than other
collection alternatives.
[2005-1 USTC ¶50,395] Living Care Alternatives of Utica, Inc., Plaintiff-Appellant v. United
States of America, Internal Revenue Service, Defendant-Appellee. Federal
district courts, which reviewed Collection Due Process (CDP)
determinations issued by IRS Appeals officers using an abuse of
discretion standard, were not required to use a de novo
standard because the taxpayer, a nursing home, did not challenge
the underlying tax liabilities in the CDP hearings. The nursing
home's argument that it was bad public policy to require it to pay
taxes when it lacked the financial ability to meet federal
regulatory standards governing the care of patients and its
request to "remove" the tax liability were not
challenges to the validity of the underlying liability. The
reports issued by the Appeals officers in connection with their
determinations included sufficient information to provide a basis
for an abuse of discretion review. Furthermore, the refusal of the
IRS to accept the nursing home's offers in compromise was not an
abuse of discretion for numerous reasons, including the apparent
failure to file the proper forms and financial information, its
financial difficulties, and a previous default on an installment
payment plan. It was also not necessary for the Appeals officers
to consider whether the IRS would receive any revenue from the
levy and sale of the nursing home's property due to existing liens
of superior creditors, or whether the nursing home would have to
close down due to the levy and sale. These considerations are
properly made after the determination of the Appeals officer in a
CDP hearing when the decision to actually levy upon the property
is made.
Carla
I. Struble, for plaintiff-appellant. Robert J. Branman, Rachel I.
Wollitzer, Jonathan S. Cohen, Department of Justice, for
defendant-appellee.
OPINION
SUMMARY
OF FACTS
ANALYSIS I.
Judicial Review of Collection Due Process Proceedings
II.
Living Care's Claims
These
government mandated changes resulted in Living Care not being able
to pay all its withholding obligations. The government required
that Living Care meet the increased mandated care requirements and
staffing requirements. Living Care did this and when the decision
had to be made between paying for resident care and taxes, Living
Care paid for the food, utilities, medications, staffing etc [sic]
and delayed the payment of taxes --taxes were not simply refused
or neglected. Living
Care Proof Br. (Case No. 04-3554) at 18. Living Care maintains
that it relied on the above argument during the collection due
process hearings and that this argument was equivalent to
challenging the underlying liability itself. 6
Furthermore, it argues that the identical requests in its
Complaints to the District Courts that the "tax liability be
removed" also constituted a challenge to the validity of the
liability. Appeals
Officer Rich was not required, during the [Collection Due Process]
Appeal process, to determine whether the equity in Medlock's
property was sufficient to yield net proceeds ... or investigate
the status of Medlock's property .... According to the plain
language of the relevant statutory sections, [6331(f) and 6331(j)]
these actions must be taken before a taxpayer's property may be
levied upon by the IRS but are prematurely raised at this stage of
the collection process. Appeals Officer Rich's alleged failure to
perform those actions therefore does not constitute a violation of
[the collection due process statutes].
Unlike
the court in Mesa Oil, this court has before it a report
from the collection due process hearing which sets forth the
issues raised by Living Care, as well as a discussion of those
issues. The [Appeals Officer's] report explains the collection
alternatives raised by Plaintiff and why those collection
alternatives were impracticable and unreasonable. In the instant
case the [Officer] enumerated specific reasons why the IRS's levy
action and lien filing balanced the [needs of both parties.]
The
two quarters preceding the current quarter are the 2nd and 3rd.
The taxpayer owes tax for the 2nd; consequently, the taxpayer will
not be eligible until the 1st quarter of 2003.... Therefore, as
of the date of this report, the taxpayer is not eligible for
an offer in compromise. Id. at 58
(emphasis added). The hearing date in Living Care I was December
12, 2002. The date on the Notice of Determination was March 25,
2003. Either the Appeals Officer intended to express his
eligibility determination in terms of the date of the hearing
and simply made a typographical error, or he erroneously
determined that Living Care was not eligible as of the date of
the report, even though his statements on page 2 express
recognition that Living Care had made the last two quarter's
payments on time. [2005-1 USTC ¶50,362] Patricia A. Mosby, Plaintiff-Appellant v. United States of America,
Defendant-Appellee. An
individual's request for judicial review of a decision letter
issued following an "equivalent" Collection Due Process
(CDP) hearing was dismissed because the letter was not subject to
judicial review. MEMORANDUM
**
[Dec. 56,064(M)]
Gregory Meeker v. Commissioner. An
individual's petition requesting review of several IRS Appeals
decisions was dismissed for lack of jurisdiction. The IRS sent the
individual notices of intent to levy with information regarding
the collection due process procedures for various tax years.
However, the individual failed to file a timely request for a
Collection Due Process hearing for any of the tax years at issue.
Since a decision letter issued after an equivalent hearing is not
a determination letter under Code
Secs. 6320 or 6330,
the court lacked jurisdiction to review the IRS's decision. [Code Sec. 6673] The
court did not impose the Code
Sec. 6673(a)(1) penalty even though an individual's
petition, objection, and motions were replete with tax-protester
rhetoric that has been universally rejected, his position was
frivolous and the proceedings were instituted primarily for delay.
The court did, however, warn the individual that the penalty would
be imposed if he returned with similar arguments in the future.
The
Tax Court lacked jurisdiction to review the IRS's decision to
impose a frivolous return penalty under Code
Sec. 6702. The Tax Court's jurisdiction to review IRS
determinations regarding collection matters is limited to cases
where the court has jurisdiction over the underlying tax
liability. Therefore, that portion of the individual's petition
was dismissed, and the individual was given 30 days to file an
appeal of the Code
Sec. 6702 penalty with the appropriate federal district
court. [Tax Court
Rules 34 and 123] An
individual's tax court petition requesting review of several IRS
Appeals decisions was dismissed for failure to state a claim upon
which relief could be granted. The individual's petition, and
other documents he presented to the court, contained frivolous and
groundless tax protestor-type arguments. Tax Court Rule 34(b)(4)
requires that petitions contain clear and concise statements
describing all of the errors the IRS made when determining the
disputed deficiency, additions to tax and/or penalties. In
addition, a petitioner must support these statements of error with
facts. Since the individual failed to comply with these rules, the
court dismissed his petition under Tax Court Rule 123. Gregory
Meeker, pro se; Lauren B. Epstein, for respondent. MEMORANDUM
OPINION VASQUEZ,
Judge: This case is before the Court on respondent's motion to
dismiss for failure to state a claim upon which relief could be
granted. On
On
On
On
or about On
During
August 2004, petitioner and respondent conducted by correspondence
a section
6330 hearing regarding (1) the notice of lien regarding
income taxes for 1999, 2000, and 2001 and penalty pursuant to section
6702 for 1999 and 2000, and (2) the proposed levy
regarding income taxes for 1999 and 2000. During August 2004,
petitioner and respondent conducted by correspondence an
equivalent hearing regarding the proposed levy regarding income
taxes for 2001. On
On
On
On
On
Petitioner
attempted to file several other documents with the Court that the
Office of the Clerk of the Court returned to petitioner as
unfilable. The returned documents included a "motion to set
aside defaults" and a "verified motion to enforce
default against IRS by summary judgement". These documents
contained frivolous and groundless arguments. At
the hearing on respondent's motion, petitioner stated:
"Basically, the only thing I have before the Court, and the
only thing that's --as far as I'm concerned, is the default I have
against them [the Internal Revenue Service] for not answering my
First Amendment complaint." Petitioner further stated:
"What I'm saying is they [the Internal Revenue Service] don't
have jurisdiction to issue anything to me. I'm not under their
jurisdiction". Discussion A
decision letter is not a determination letter pursuant to section
6320 or 6330.
See Kennedy v. Commissioner [Dec.
54,315], 116 T.C. 255, 263 (2001); Offiler v.
Commissioner [Dec.
53,912], 114 T.C. 492, 495 (2000). Respondent did not
issue a determination letter to petitioner sufficient to invoke
the Court's jurisdiction to review the notice of intent to levy
for 2001. Kennedy v. Commissioner, supra. Insofar as the
petition filed herein purports to be a petition for review
pursuant to section
6330(d) of the notice of intent to levy for 2001, we
shall dismiss the petition as to the notice of intent to levy for
2001 for lack of jurisdiction on the ground that respondent did
not make a determination pursuant to section
6330 regarding the notice of intent to levy for 2001
because petitioner failed to file a timely request for an Appeals
Office hearing pursuant to section
6330(a)(2) and (3)(B)
and (b).
Id. II.
Section 6702 Notice of Determination The
Court's jurisdiction to review the Commissioner's determinations
respecting collection matters is limited to cases where the
underlying tax liability is of a type over which the Court
normally has jurisdiction. See Moore v. Commissioner [Dec.
53,802], 114 T.C. 171 (2000). We lack jurisdiction
under section
6330(d)(1)(A) to review the Commissioner's
determinations regarding the section
6702 frivolous return penalty. Johnson v.
Commissioner [Dec.
54,554], 117 T.C. 204, 208 (2001); Van Es v.
Commissioner [Dec.
54,080], 115 T.C. 324, 329 (2000) ("we do not * *
* have jurisdiction to redetermine the frivolous return penalties
assessed pursuant to section
6702"). Accordingly,
we shall dismiss the petition as to the notice of Federal tax lien
regarding the section
6702 penalty for 1999 and 2000 on the ground that we
lack jurisdiction to review respondent's determinations regarding
the section
6702 penalty. Johnson v. Commissioner, supra; Van Es
v. Commissioner, supra. Pursuant to section
6330(d), petitioner has 30 days after the entry of our
order to file his appeal with the appropriate U.S. District Court
regarding the notice of determination that pertains to the notice
of Federal tax lien for the section
6702 penalty for 1999 and 2000. III.
Notice of Deficiency and Income Tax Notices of Determination Rule
34(b)(4) requires that a petition filed in this Court shall
contain clear and concise assignments of each and every error that
the taxpayer alleges to have been committed by the Commissioner in
the determination of the deficiency and the additions to tax or
penalties in dispute. Rule 34(b)(5) further requires that the
petition shall contain clear and concise lettered statements of
the facts on which the taxpayer bases the assignments of error. Funk
v. Commissioner [Dec.
55,719], 123 T.C. 213, 215 (2004); Jarvis v.
Commissioner [Dec.
38,959], 78 T.C. 646, 658 (1982); Stearman v.
Commissioner [Dec.
55,944(M)], T.C. Memo. 2005-39. Any issue not raised in
the pleadings is deemed to be conceded. Rule 34(b)(4); Funk v.
Commissioner, supra; Jarvis v. Commissioner, supra at 658
n.19; Gordon v. Commissioner [Dec.
36,748], 73 T.C. 736, 739 (1980); Stearman v.
Commissioner, supra. Further, the failure of a party to plead
or otherwise proceed as provided in the Court's Rules may be
grounds for the Court to hold such party in default, either on the
motion of another party or on the initiative of the Court. Rule
123(a); Stearman v. Commissioner, supra; Ward v. Commissioner
[Dec.
54,779(M)], T.C. Memo. 2002-147. The Court also may
dismiss a case and enter a decision against a taxpayer for his
failure properly to prosecute or to comply with the Rules of this
Court. Rule 123(b); Stearman v. Commissioner, supra; Ward v.
Commissioner, supra. We
agree with respondent that petitioner has failed to state a claim
upon which relief can be granted. See Funk v. Commissioner,
supra at 216-217; Stearman v. Commissioner, supra.
Accordingly we shall dismiss petitioner's case and enter a
decision sustaining respondent's determinations contained in the
notice of deficiency for 20023 and
respondent's determinations sustaining the notice of intent to
levy for 1999 and 2000 and the notice of Federal tax lien
regarding income taxes for 1999, 2000, and 2001.4 Rules
34(a), 123; Funk v. Commissioner, supra at 218; Stearman v.
Commissioner, supra. IV.
Section 6673 Section
6673(a)(1) authorizes this Court to require a taxpayer
to pay to the United States a penalty not to exceed $25,000 if the
taxpayer took frivolous or groundless positions in the proceedings
or instituted the proceedings primarily for delay. A position
maintained by the taxpayer is "frivolous" where it is
"contrary to established law and unsupported by a reasoned,
colorable argument for change in the law." Coleman v.
Commissioner [86-1
USTC ¶9401], 791 F.2d 68, 71 (7th Cir. 1986); see also
Hansen v. Commissioner [87-2
USTC ¶9402], 820 F.2d 1464, 1470 (9th Cir. 1987) (section
6673 penalty upheld because taxpayer should have known
claim was frivolous). Petitioner's
petition, objection, and motion to enforce Rule 36 are replete
with tax-protester rhetoric, including but not limited to
arguments regarding the 16th Amendment. The same is true for (1)
the two documents received at the hearing on respondent's motion
that the Court previously refused to file and (2) petitioner's
arguments at the hearing on respondent's motion. Petitioner
has advanced shopworn arguments characteristic of tax-protester
rhetoric that has been universally rejected by this and other
courts. Wilcox v. Commissioner [88-1
USTC ¶9387], 848 F.2d 1007 (9th Cir. 1988), affg. [Dec.
43,889(M)], T.C. Memo. 1987-225; Carter v.
Commissioner [86-1
USTC ¶9279], 784 F.2d 1006, 1009 (9th Cir. 1986). We
shall not painstakingly address petitioner's assertions "with
somber reasoning and copious citation of precedent; to do so might
suggest that these arguments have some colorable merit." Crain
v. Commissioner [84-2
USTC ¶9721], 737 F.2d 1417, 1417 (5th Cir. 1984). We
conclude that petitioner's position was frivolous and groundless
and that petitioner instituted and maintained these proceedings
primarily for delay. We take this opportunity to warn petitioner
that the Court will impose a penalty pursuant to section
6673 if he returns to the Court and proceeds in a
similar fashion in the future. To
reflect the foregoing, An
appropriate order of dismissal and decision will be entered. 1
Unless otherwise indicated, all section references are to the
Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure. [Dec. 56,008(M)]
Myong Soo Kim and Sung Me Hwang v. Commissioner. The
Tax Court had jurisdiction over a petition for review of a notice
of determination even though the taxpayers filed their request for
a Collection Due Process (CDP) hearing late. The court rejected
the IRS's argument that, since the taxpayers filed their CDP
hearing request late, they were only entitled to an equivalent
hearing. Thus, the notice of determination was issued in error and
was, therefore, invalid. However, the court had general
jurisdiction over the type of tax involved, the taxpayers'
received a notice of determination, and the taxpayers' petition
for review was timely filed. Therefore, the court had jurisdiction
over the taxpayers' petition. Despite these facts, the taxpayer's
were not entitled to relief under Code
Sec. 6330 because they filed their request for a CDP
hearing late. Myong
Soo Kim and Sung Me Hwang, pro sese; Lisa M. Oshiro, for
respondent. MEMORANDUM
FINDINGS OF FACT AND OPINION MARVEL,
Judge: This matter is before the Court on respondent's motion to
dismiss for lack of jurisdiction, as supplemented, on the ground
that respondent issued an invalid notice of determination
concerning a collection action under section
6330.1 FINDINGS
OF FACT Petitioners
resided in Olympia, Washington, when the petition in this case was
filed. On
On
On
On
On
OPINION
Section
6331(a) provides that if any taxpayer liable to pay any
tax neglects or refuses to pay such tax within 10 days after
notice and demand for payment, then the Secretary is authorized to
collect such tax by levy upon the taxpayer's property. Section
6331(d) provides that, at least 30 days before
enforcing collection by way of a levy, the Secretary is obliged to
provide the taxpayer with a written notice of his intent to levy
and of the administrative appeal available to the taxpayer. Sec.
6331 (d) (4) (C) . Section
6330(a) requires the Secretary to send written notice
to the taxpayer of his right to request a hearing with Appeals (section
6330 hearing) before a levy is made. Section
6330(a)(2) provides that the prescribed notice must be
provided not less than 30 days before the day of the first levy,
and section
6330(a)(3)(B) provides that the notice must inform the
taxpayer that he has the right to request a section
6330 hearing during the 30-day period under section
6330(a)(2). See sec. 301.6330-1(c), Q&A-C3, Proced.
& Admin. Regs. The taxpayer's request for the section
6330 hearing must be submitted in writing. Sec.
301.6330-1(c)(2), Q&A-C1, Proced. & Admin. Regs. If the
written request is properly addressed, with postage prepaid, and
is postmarked within the applicable 30-day response period, in
accordance with section
7502, the request will be considered timely even if it
is not received by the IRS office that issued the notice until
after the 30-day response period. Sec. 301.6330-1(c)(2),
Q&A-C4, Proced. & Admin. Regs. If
a section
6330 hearing is conducted, the taxpayer may raise any
relevant matter set forth in section
6330(c)(2) at the hearing, and the Appeals officer
shall make a "determination" as to those matters. Sec.
6330(c)(3). Appeals will issue its determination in the
form of a notice of determination setting forth its findings and
decisions. Sec. 301.6330-1(e)(3), Q&A-E8, Proced. & Admin.
Regs. When Appeals issues the notice of determination, the
taxpayer has 30 days following the issuance to file a petition for
review of the determination with this Court or a Federal District
Court, as may be appropriate. Sec.
6330 (d) (1) . A
taxpayer who fails to timely request a section
6330 hearing is not entitled to a section
6330 hearing but may nevertheless request an
administrative hearing with Appeals that is referred to as an
"equivalent hearing". Sec. 301.6330-1(i)(1), Proced.
& Admin. Regs.; see also sec. 301.6330-1(c)(2), Q&A-C7,
Proced. & Admin. Regs. The equivalent hearing generally
follows Appeals's procedures for a section
6330 hearing, and Appeals will consider the same issues
it would have considered at a section
6330 hearing on the same matter. Sec. 301.6330-1(i)(1)
and (2), Q&A-I1, Proced. & Admin. Regs. Rather than issue
a notice of determination after an equivalent hearing, however,
Appeals will issue a decision letter. Sec. 301.6330-1(i)(1),
Proced. & Admin. Regs. A decision letter generally contains
the same information required to be in a notice of determination,
except that it ordinarily states in regard to most issues that a
taxpayer may not seek judicial review of the decision. Craig v.
Commissioner [Dec.
54,933], 119 T.C. 252, 258-259 (2002); see also sec.
301.6330-1(i)(2), Q&A-I4 and I5, Proced. & Admin. Regs. If
the Court has general jurisdiction over the type of tax involved,
a valid notice of determination and a timely filed petition are
the only requirements for the exercise of its jurisdiction under section
6330(d)(1). Lunsford v. Commissioner [Dec.
54,553], 117 T.C. 159, 161 (2001); Sarrell v.
Commissioner [Dec.
54,494], 117 T.C. 122, 125 (2001). Section
6330 does not authorize judicial review of an Appeals
decision made with respect to an equivalent hearing, and the
absence of a determination by Appeals is grounds for dismissal of
a petition that purports to be based on section
6330. Kennedy v. Commissioner [Dec.
54,315], 116 T.C. 255, 261 (2001); Offiler v.
Commissioner [Dec.
53,912], 114 T.C. 492, 498 (2000); sec.
301.6330-1(i)(2), Q&A-I5, Proced. & Admin Regs. II.
The Parties' Contentions The
parties do not dispute that the Court has general jurisdiction
over the Federal income taxes involved,4 and
respondent concedes that the petition was timely filed. Respondent
contends, however, that the notice of determination was issued in
error and is invalid because petitioners did not timely request a section
6330 hearing, that the hearing that was offered
petitioners was an equivalent hearing and not a section
6330 hearing, and that respondent should have issued a
decision letter instead of a notice of determination. Respondent
argues that Even
if Appeals erroneously issued a notice of determination to a
taxpayer who filed his/her hearing request late, the mere fact the
taxpayer was issued a notice of determination cannot confer
jurisdiction on the Tax Court * * *, any more than a decision
letter issued to the taxpayer can deprive the Court of
jurisdiction under section
6330(d). Although
petitioners object to respondent's motion, they do not
specifically contend that the notice of determination is valid.
Instead, petitioners argue that their case should not be
dismissed, and they challenge the existence and amounts of the
income tax liabilities underlying the notice of determination. III.
Analysis A.
Jurisdiction Respondent
relies on Craig v. Commissioner, supra, to support
his argument for dismissal. In Craig, the taxpayer timely
requested a section
6330 hearing, but Appeals mistakenly conducted an
equivalent hearing and subsequently issued a decision letter. Id.
at 253, 256. We held that the "decision" contained in
the decision letter constituted a "determination" for
purposes of section
6330(d) because the taxpayer's request for a section
6330 hearing was timely. Id. at 259. In arriving
at this holding, we examined both the decision letter and the
timeliness of the taxpayer's request in order to decide whether
Appeals had made a valid determination. Respondent's
reliance on Craig is misplaced. In Craig, Appeals
did not issue a notice of determination. Instead, Appeals issued a
decision letter that, on its face, did not establish a basis for
our jurisdiction. As a result, in order to ascertain whether
Appeals had made the determination required by section
6330, we examined both the decision letter and the
timeliness of the taxpayer's request for a section
6330 hearing to arrive at our conclusion that the
Appeals decision letter contained the determination required by section
6330. Craig does not stand for the proposition
that we may look behind a facially valid notice of determination
in response to the Commissioner's contention that the notice of
determination was erroneously issued. See Lunsford v.
Commissioner, supra. In
Lunsford, we were presented with the issue of whether a
facially valid notice of determination was sufficient to confer
jurisdiction over a section
6330 proceeding in which no section
6330 hearing had been held before the notice of
determination had been issued. The taxpayer in Lunsford had
timely requested a section
6330 hearing, but no administrative hearing of any kind
had been conducted. Id. at 161. Appeals nevertheless issued
a notice of determination, and the taxpayer filed a timely
petition. Id. at 162. In deciding whether we had
jurisdiction over the resulting section
6330 proceeding, we stated that, consistent with our
approach in deficiency cases, we would only examine the notice of
determination to decide whether it was valid for jurisdictional
purposes and that we would not look behind the notice to assess
its validity. Id. at 163-164; see also Offiler v.
Commissioner, supra at 498. We further stated: Whether
there was an appropriate hearing opportunity, or whether the
hearing was conducted properly * * *, or whether any of the other
nonjurisdictional provisions of section
6330 were properly followed, will all be factors that
we must take into consideration under section
6330 in deciding such cases. But none of these factors
should preclude us from exercising our jurisdiction under section
6330(d), in order to resolve the underlying dispute in
a fair and expeditious manner. Lunsford
v. Commissioner, supra
at 164. Accordingly, we held that if Appeals issues a notice of
determination that clearly embodies the Appeals officer's
determination concerning collection by way of levy and the
taxpayer timely files a petition contesting the determination,
then regardless of whether the taxpayer was given an appropriate
hearing opportunity, we have jurisdiction to review the
determination. Id. at 165. Although
neither Lunsford nor Craig is exactly on point, the
facts of this case more closely resemble those of Lunsford
than Craig. Petitioners requested a section
6330 hearing, but no Appeals hearing was conducted.
Appeals then issued a notice of determination. The notice of
determination is valid on its face, in that it was mailed to the
last known address of petitioners, it clearly contains the
determination of Appeals that the requirements of section
6330 have been met and that the levy action should be
sustained, and it informs petitioners that they may appeal the
determination to this Court. There is nothing in the notice of
determination that leads us to conclude that the notice is
invalid. Therefore, regardless of whether Appeals should have
issued a decision letter, a notice containing the determination of
Appeals was issued, and it is this determination that triggers our
jurisdiction under section
6330(d), if, as here, we have general jurisdiction over
the type of tax involved and a timely petition for review has been
filed. B.
Petitioners' Claim to Section 6330 Relief Although
we reject respondent's argument that we must dismiss this case for
lack of jurisdiction, it is nevertheless apparent that petitioners
are not entitled to relief under section
6330. We shall treat respondent's motion as a motion
for summary judgment5 under
Rule 121, and we shall grant respondent's motion as
recharacterized because there is no genuine issue as to any
material fact, and a decision may be rendered as a matter of law. The
undisputed relevant facts establish that petitioners failed to
timely request a section
6330 hearing within the 30-day period provided by section
6330(a)(2). Sec. 301.6330-1(c)(1), Proced. & Admin.
Regs. Respondent issued the NILs on Section
6330 requires a taxpayer to timely request a section
6330 hearing. Sec.
6330(a)(3); sec. 301.6330-1(c)(1) and (2), Q&A-C3,
C5-C7, Proced. & Admin. Regs.; see also Craig v.
Commissioner [Dec.
54,933], 119 T.C. at 257; Kennedy v. Commissioner
[Dec.
54,315], 116 T.C. at 262; Offiler v.
Commissioner [Dec.
53,912], 114 T.C. at 497. Petitioners did not do so. Section
6330 does not authorize the Commissioner to waive the
time restrictions imposed therein, nor does it authorize the
Commissioner to lengthen or shorten the 30-day period for
requesting a section
6330 hearing. Moorhous v. Commissioner [Dec.
54,316], 116 T.C. 263, 270 n.5 (2001); Kennedy v.
Commissioner, supra at 262. In
this case, because petitioners did not timely request a section
6330 hearing, petitioners were not entitled to such a
hearing and were not offered one. Consequently, we shall grant
respondent's deemed motion for summary judgment. IV.
Conclusion Although
we deny respondent's motion insofar as it asks us to dismiss this
case for lack of jurisdiction, it is clear that petitioners are
not entitled to relief under section
6330. We have treated respondent's motion as a motion
for summary judgment, and we shall grant respondent's motion
because petitioners did not timely request a section
6330 hearing. An
appropriate order and decision will be entered. 1
Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect at the time the petition in this
case was filed, and all Rule references are to the Tax Court Rules
of Practice and Procedure. |