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6330
Annotations: Judicial Review of Appeals Determinations: Timely
Filing of Appeal Request- Levy Notice of Levy
and Right to Hearing: Judicial Review of Appeals Determinations:
Timely Filing of Appeal Request [Dec.
53,988] David C. McCune
v. Commissioner
David
C. McCune, pro se. Marty J. Dama, for the respondent. OPINION COHEN,
Judge: This
matter is before the Court on respondent's motion to dismiss for
lack of jurisdiction on the ground that the petition was not filed
within the time prescribed by section
6330(d)(1) or section
7502 . Unless otherwise indicated, all section
references are to the Internal Revenue Code in effect for the
years in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure. At
the time the petition in this case was filed, petitioner was a
resident of On
On
First,
the government contends that McCune did not timely appeal the IRS
determination because he filed suit in excess of thirty days after
the IRS determination was issued. McCune responds by asserting
that he filed a motion for reconsideration with the IRS, thereby
tolling the limitations period. However, even if the limitations
period was tolled by the filing of the motion for reconsideration,
this court lacks subject matter jurisdiction to hear the case. District
Courts have jurisdiction under section 6330 only if the
Tax Court lacks jurisdiction. Clearly, the Tax Court had
jurisdiction over this case because it concerns income taxes,
despite McCune's contention that he is not a taxpayer. Moreover,
this court does not have jurisdiction to hear McCune's complaint
because the income taxes at issue have not been paid in full. *** The
order of dismissal was served on petitioner at his private mail
box, the address he provided for the record. Petitioner received
the order a few days thereafter when he picked up his mail. On
Section 6330 generally
provides that the Internal Revenue Service cannot proceed with the
collection of taxes by way of a levy on a taxpayer's property
until the taxpayer has been given notice of and the opportunity
for an administrative review of the matter in the form of a CDP
hearing. See sec. 301.6330-1T ,
Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3407 (Jan. 22,
1999). See generally Goza v. Commissioner [Dec. 53,803 ], 114 T.C.
176, 179-182 (2000). Section
6330(d)(1) provides: SEC. 6330(d) . Proceeding
After Hearing.-- (1)
Judicial review of determination.--The person may, within 30 days
of a determination under this section, appeal such determination-- (A)
to the Tax Court (and the Tax Court shall have jurisdiction to
hear such matter); or (B)
if the Tax Court does not have jurisdiction of the underlying tax
liability, to a district court of the If
a court determines that the appeal was to an incorrect court, a
person shall have 30 days after the court determination to file
such appeal with the correct court. In
this case, petitioner challenged the CDP notice and requested a
CDP hearing. Appeals determined, on (f)(2)
Questions and answers. The questions and answers illustrate the
provisions of this paragraph (f) as follows: ******* A-F3.
If the Tax Court would have jurisdiction over the type of tax
specified in the CDP Notice (for example, income and estate
taxes), then the taxpayer must seek judicial review by the Tax
Court. *** Q-F4.
What happens if the taxpayer timely appeals Appeals's
determination to the incorrect court? A-F4.
If the court to which the taxpayer directed a timely appeal
of the Notice of Determination determines that the appeal was to
the incorrect court (because of jurisdictional, venue or other
reasons), the taxpayer will have 30 days after the court's
determination to that effect within which to file an appeal to the
correct court. [Emphasis added.] Petitioner
filed his initial appeal with the District Court more than 30 days
after the notice of adverse determination. Petitioner then filed a
petition in this Court more than 30 days after the order of
dismissal by the District Court. Respondent's
position is that the untimeliness of the petition to the District
Court renders inapplicable the additional 30-day period set forth
in section
6330(d)(1) where an appeal is initially to an incorrect
court and, in any event, the petition was untimely in this Court
because not filed within the 30-day period after dismissal by the
District Court. Petitioner argues that his time to file in the
District Court was extended by his request for reconsideration and
that his time to file in this Court should run from the date that
he received the order of dismissal from the District Court. Section
6330(d)(1) provides for appeal within 30 days of the
Appeals Office determination and an additional 30 days after a
court determination that the appeal was to an incorrect court. The
statutory periods are jurisdictional and cannot be extended. See,
e.g., Joannou v. Commissioner [Dec. 24,042 ], 33 T.C. 868,
869 (1960); Hodges v. Commissioner [Dec. 44,040(M) ], T.C.
Memo. 1987-340. A fortiori, they cannot be extended by
petitioner's unilateral action in requesting reconsideration or in
deciding when to pick up his mail. Petitioner's
case in the District Court was not filed within 30 days of the To
reflect the foregoing, An
order will be entered granting respondent's Motion to Dismiss for
Lack of Jurisdiction. [Dec.
54,494] Ervin Michael
Sarrell v. Commissioner [Code Secs. 6213 ,
6320 , 6330 , and 7502 ]
Ervin
Michael Sarrell, pro se. William J. Gregg, for the
respondent. OPINION DAWSON,
Judge: This
case was assigned to Special Trial Judge Robert N. Armen, Jr.,
pursuant to the provisions of section 7443A(b)(4) and Rules 180,
181, and 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 on the
ground that the petition was not filed within the 30-day period
prescribed in section 6330(d)(1)(A). As explained below, we shall
grant respondent's motion to dismiss. Background On
On
As
indicated, respondent moved to dismiss the petition for lack of
jurisdiction on the ground that the petition was not timely filed.
In particular, respondent contends that because the envelope in
which the petition was mailed to the Court bears a foreign
postmark, petitioner may not rely on the so-called timely
mailing/timely filing rule set forth in section 7502(a). Petitioner
filed an objection to respondent's motion asserting that because
of intervening Jewish holidays, including Passover and Holocaust
Memorial Day, and slow rural mail delivery in This
matter was called for hearing at the Court's motions session held
in 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
(RRA 1998), Pub. L. 105-206, sec. 3401, 112 Stat. 746, Congress
enacted new section 6320 (pertaining to liens) and new section
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, with
judicial review of the administrative determination. See When
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, if the Tax Court
does not have jurisdiction over the underlying tax liability, with
a Federal District Court. 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 upon the
issuance of a valid determination letter and the filing of a
timely petition for review. See Moorhous v. Commissioner
[Dec. 54,316], 116 T.C. 263, 269 (2001); Offiler v.
Commissioner, supra at 498; see also Rule 330(b). Petitioner
did not challenge the validity of the notice of determination. We
observe that the notice was mailed to the same address that
petitioner listed as his return address on the envelope bearing
the petition and on the envelope bearing the notice of objection.
Accordingly, it appears that the notice of determination was
mailed to petitioner at his last known address. See sec.
6330(a)(2)(C). Under the circumstances, the sole issue for
decision is whether the petition was timely filed. The
record in this case demonstrates that the petition was not filed
within the 30-day period prescribed in section 6330(d)(1). The
record shows that respondent mailed the notice of determination to
petitioner on We
agree with respondent that petitioner is unable to take advantage
of the so-called timely mailing/timely filing rule of section
7502(a). Although section 7502(a) provides that, in certain
circumstances, a timely mailed petition will be treated as though
it were timely filed, section 7502(b) provides that the rule
"shall apply in the case of postmarks not made by the United
States Postal Service only if and to the extent provided by
regulations prescribed by the Secretary." It is well settled
that the timely mailing/timely filing rule of section 7502(a) does
not apply to foreign postmarks. See Pekar v. Commissioner
[Dec. 53,525], 113 T.C. 158, 168 (1999), and cases cited therein;
see also sec. 301.7502-1(c)(1)(ii), Proced. & Admin. Regs.,
stating: "Section 7502 does not apply to any document which
is deposited with the mail service of any other country." Moreover,
Congress did not provide an extended filing period under section
6320 or 6330 when a notice of determination is addressed to a
person outside the To
reflect the foregoing, An
order will be entered granting respondent's Motion to Dismiss for
Lack of Jurisdiction. 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.
54,605(M)] Walther
Guerrier, Jr. v. Commissioner
[Code Sec. 6330 ; Tax Court
Rule 25 ]
Walther
Guerrier, Jr., pro se. Rosemarie D. Camacho and Lewis J.
Abrahams, for the respondent. MEMORANDUM
OPINION CHIECHI,
Judge: This
case is before us on petitioner's motion to dismiss for lack of
jurisdiction (petitioner's motion) and respondent's motion to
dismiss for lack of jurisdiction (respondent's motion). The Court
held a hearing on each of those motions. We shall deny
petitioner's motion and grant respondent's motion. Background The
record establishes and/or the parties do not dispute the
following: At
the time the petition for lien or levy action under section
6320(c) or 6330(d) 1 was filed,
petitioner resided in Far Rockaway, New York. Respondent's
transcripts for petitioner's taxable years 1994 and 1996 indicate
that he did not file a Federal income tax return (return) for
either of those years and that respondent prepared a substitute
for return for each such year. On a date not disclosed by the
record, respondent mailed to petitioner a notice of deficiency
(notice) with respect to his taxable years 1994 and 1996. The U.S.
Postal Service (Postal Service) returned that notice to respondent
because petitioner no longer resided at the address for petitioner
shown on the envelope in which the notice was mailed and
petitioner's request to the Postal Service to forward his mail to
a new address had expired. On
On
On
I
am "challenging the appropriateness of (the) collection
action" as specified in [section] 6330(c)(2)(A)(ii) since the
IRS denied all of my requests for the initial
"examinations" and "interviews" as provided
for in Publications 1 & 5. In addition, no lien for taxes
pursuant to Code Sections 6321 and 6322 is possible because no
valid, underlying assessment was ever made. In addition, I never
received the statutory "notice and demand" for
payment of the taxes at issue as required by Code Sections 6203,
6321, and 6331. If the appeals officer is going to claim that a
particular document sent to me by the IRS was a "Notice and
Demand" for payment, then I am requesting that he also
provide me with a T.D. or Treas. Reg. which identifies that
specific document as being the official, statutory
"Notice and Demand" for payment. In
addition, I am "challenging the existence of the underlying
tax liability" as I am authorized to do in Code Section
6330(c)(2)(B). In addition, I did not receive a (valid) notice of
deficiency in connection with any of the years at issue. I am also
requesting that the appeals officer have at the "Due Process
Hearing" a copy of the "Summary Record of
Assessment" (Form 23 C) together with the "pertinent
parts of the assessment which set forth the name of the taxpayer,
the date of the assessment, the character of the liability
assessed, the taxable period, and the amount assessed" as
provided for in Treas. Reg. [section] 301.6203-1. In
addition, I want to see proof that a purported "Deficiency
Notice" was actually sent to me. Also, since Section
6330(c)(1) requires that "The appeals officer shall at the
hearing obtain verification from the Secretary that the
requirements of any applicable law or administrative procedure
have been met," I am requesting that the Appeals Officer have
such verification with him at the Appeals Conference. However,
if the verification called for by [section] 6330(c)(1) is signed
by someone other than the Secretary himself, than [sic]--in line
with the Supreme Court's holding in Federal Crop Ins. Corp. v.
Merril, 92 L.Ed. 11--I am requesting that the Appeals officer
also have a Delegation Order from the Secretary delegating to that
person the authority to prepare such a "verification." In
response to petitioner's request for Appeals Office hearing, on On
I,
Walther Guerrier, Jr., am submitting this as part of my * * *
return, even though I know that no section of the Internal Revenue
Code: 1)
Establishes an income tax "liability" as, for example,
Code Sections 4401, 5005, and 5703 do with respect to wagering,
alcohol, and tobacco taxes; 2)
Provides that income taxes "have to be paid on the basis of a
return" as, for example, Code Sections 4374, 4401(c), 5061(a)
and 5703(b) do with respect to other taxes; I am filing anyway
because I know the government has prosecuted others for failing to
file income tax returns by (erroneously) invoking Code Sections
7201 and 7203. Therefore, this return is not being filed
voluntarily, but is being filed out of fear that if I did not file
this return I could also be (illegally) prosecuted for failing to
file income tax return * * *. 3)
In addition to the above, I am filing even though the
"Privacy Act Notice" as contained in a 1040 booklet
clearly informs me that I am not required to file. It does so in
at least two places. a)
In one place, it states that I need only file a return for
"any tax" I may be "liable" for. Since no Code
Section makes me "liable" for income taxes, this
provision notifies me that I do not have to file an income tax
return. b)
In another place, it directs me to Code Section 6001. This section
provides, in relevant part, that "Whenever in the judgment of
the Secretary it is necessary, he may require any person by notice
served on such person or by regulations, to make such returns,
render such statements, or keep such records, as the Secretary
deems sufficient to show whether or not such person is liable for
tax under this title." Since the Secretary of the Treasury
did not "serve" me with any such "notice" and
since no legislative regulation exists requiring anyone to file an
income tax return, I am again informed by the "Privacy Act
Notice" that I am not required to file an income tax return. 4)
With respect to the information I included in my return, I wish to
point out that the courts have ruled that: "A (1040) form
with 'zeros' inserted in the space provided * * * qualified as a
return." * * * *
* * * * * * 6)
It should also be noted that I had "zero" income
according to the Supreme Court's definition of income * * * since
in Merchant's Loan & Trust C. V. Smietanka [1 USTC ¶42],
255 U.S. 509 (at pages 518 & 519) that court held that
"The word (income) must be given the same meaning in all the
Income Tax Acts of Congress that was given to it in the
Corporation Excise Tax Act of 1909." Therefore, since I had
no earnings * * * that would have been taxable as
"income" under the Corporation Excise Tax Act of 1909, I
can only swear to having "zero" income * * *. Obviously,
since I know the legal definition of "income," if I were
to swear to having received any other amount of
"income," I would be committing perjury * * *.
Therefore, not wishing to commit perjury * * *, I can only swear
to having "zero" income * * *. In
addition to the foregoing contentions and arguments of petitioner
that appeared in the two-page document that he attached to each of
the Forms 1040A for 1994 and 1996 that he prepared, petitioner
advanced additional contentions and arguments in that document,
all of which the Court finds to be groundless and frivolous. At
the At
the At
the Petitioner
did not want to discuss at the At
the At
the conclusion of the On
On
Discussion
Petitioner's
Motion In
petitioner's motion, petitioner asks the Court to dismiss this
case for lack of jurisdiction on the ground that the notice of
determination is invalid because he did not have an Appeals Office
hearing. In addition to petitioner's motion, petitioner filed a
document entitled "MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER'S MOTION TO DISMISS FOR LACK OF JURISDICTION"
(petitioner's memorandum). We believe that petitioner's memorandum
is a document that was used in another context and that it is not
pertinent or relevant to the instant case. By way of illustration,
petitioner's memorandum refers consistently throughout to
petitioner as being a woman, and not a man. 3 In addition,
petitioner's memorandum identifies respondent's Appeals Officer
who held the hearing with petitioner as "Jose Gonzales",
and not Carol Berger. Petitioner's memorandum also indicates that
"Petitioner has an anxiety disorder and suffers from
depression and so could not effectively represent herself at a CDP
'hearing,' especially an ersatz one, conducted over the
telephone." Appeals Officer Carol Berger held a face-to-face
hearing, and not a hearing conducted over the telephone, with
petitioner on February 12, 2001. Moreover, there is no suggestion
in the record that petitioner was suffering from any kind of
anxiety disorder or depression at that hearing. 4 A final
illustration that petitioner's memorandum is a document that was
used in another context and that is not pertinent or relevant to
the instant case is the reference in that memorandum to taxable
years that are not involved in the instant case and to other
information that is inapplicable to this case. At
the Court's hearing on petitioner's motion, petitioner testified
that he did not have an Appeals Office hearing. In support of that
position, petitioner further testified that the Appeals Officer
did not discuss with him the issues that he wanted to raise, such
as what law makes him liable for tax, how respondent calculated
his tax liability for each of the years 1994 and 1996, and similar
matters. We
recently held that, in determining the validity of a notice of
determination for jurisdictional purposes, we shall not look
behind such a notice in order to ascertain whether the taxpayer
was afforded an appropriate hearing with respondent's Appeals
Office. 5 Lunsford
v. Commissioner [Dec. 54,552], 117 T.C. -- (2001). In so
holding in Lunsford, we overruled Meyer v. Commissioner
[Dec. 54,109], 115 T.C. 417 (2000), to the extent that it required
the Court to look behind a notice of determination to ascertain
whether a proper hearing opportunity was given in order to decide
whether such a notice was valid. Lunsford v. Commissioner,
supra. In
the instant case, we are not required to look behind the notice of
determination in order to determine the validity of that notice. Respondent's
Motion In
respondent's motion, respondent asks the Court to dismiss this
case for lack of jurisdiction on the ground that petitioner filed
the petition in this case after the 30-day period prescribed by
section 6330(d). Petitioner does not dispute that his petition in
response to the notice of determination was mailed via Postal
Service Express Mail on We
conclude that the 30 days provided in section 6330(d) for timely
filing a petition in the Tax Court with respect to a determination
under section 6330 (and section 6320) are 30 calendar days, and
not 30 business days. See McGuire v. Commissioner [Dec.
29,621], 52 T.C. 468 (1969). On the record before us, we find that
petitioner was required to file a petition in response to the
notice of determination on or before An
appropriate order denying petitioner's motion and granting
respondent's motion will be entered. 1
All section references are to sections of the Internal Revenue
Code in effect at all relevant times. All Rule references are to
the Tax Court Rules of Practice and Procedure. 2
At the hearing that the Court held on petitioner's motion,
petitioner conceded that he received Form W-2 for each of the
years 1994 and 1996 and that each of those forms correctly
reflected the amount of wages that he received during each of
those years. According to petitioner, Form 1040A that he prepared
for each of the years 1994 and 1996 reported $0 of wage income
because wages are not income. 3
For example, petitioner's memorandum states in pertinent part: Petitioner
refused to waive her right to the CDP hearing referred to
over and over again in both the law and its implementing
regulation. In addition, Petitioner expected her daughter
(to whom she had given her power of attorney) to
represent her at the hearing since her daughter is far more
articulate then [sic] is petitioner, and she also has a greater
understanding of the laws at issue. * * * Petitioner also wanted a
court reporter present at her hearing, so she would have an
official transcript to support any Petition she might
subsequently file with the Tax Court to contest any adverse CDP
determination. * * * [Emphasis added.] 4
At the Court's hearing on petitioner's motion, petitioner did not
appear to the Court to have any kind of disorder whatsoever,
whether due to anxiety, depression, or any other cause. 5
Although under Lunsford v. Commissioner [Dec. 54,552], 117
T.C. -- (2001), we shall not look behind a notice of determination
in order to ascertain whether the taxpayer was afforded an
appropriate hearing with respondent's Appeals Office, on the
record before us, we reject petitioner's contention that the
Appeals Office did not hold the hearing to which he was entitled
under sec. 6330(b)(1). On that record, we find that on 6
Petitioner is not considered to have filed the petition on [Dec.
54,617(M)] Franklin A.
Ogden v. Commissioner
Franklin
A. Ogden, pro se. Gerald W. Douglas, Karen Baker, and Peter
Reilly, for the respondent. MEMORANDUM
OPINION PANUTHOS,
Chief Special Trial Judge: This
collection review case is before the Court on respondent's motion
to dismiss for lack of jurisdiction. As explained in detail below,
we shall grant respondent's motion to dismiss. 1 Background On
By
letter dated On
On
On
On
Petitioner
filed an objection to respondent's motion to dismiss asserting
that: (1) His petition was filed with the Court within 30 days of
the District Court's order of dismissal issued This
matter was called for hearing at the Court's motions session held
in 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 levy upon the person's property. Section 6331(d)
provides that, at least 30 days before 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. 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 persons in tax collection
matters. Sections 6320 and 6330 generally provide that the
Commissioner cannot proceed with collection by way of a lien or
levy action until the person has been given notice and the
opportunity for an administrative review of the matter (in the
form of an Appeals Office hearing), and if dissatisfied, with
judicial review of the administrative determination. See Section
6330(c) prescribes the matters a person may raise at an Appeals
Office hearing. In sum, section 6330(c) provides that a person may
raise collection issues such as spousal defenses, the
appropriateness of the Commissioner's intended collection action,
and possible alternative means of collection. 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 person did not receive a notice of deficiency
for the taxes in question or did not otherwise have an earlier
opportunity to dispute the 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 the person
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 person will have 30 days following the
issuance of the determination letter to file a petition for review
with the Tax Court or a Federal District Court. See Offiler v.
Commissioner [Dec. 53,912], 114 T.C. 492, 498 (2000). Section
6330(d)(1) provides: SEC.
6330(d). Proceeding After Hearing.-- (1)
Judicial review of determination.--The person may, within 30 days
of a determination under this section, appeal such determination-- (A)
to the Tax Court (and the Tax Court shall have jurisdiction to
hear such matter); or (B)
if the Tax Court does not have jurisdiction of the underlying tax
liability, to a district court of the If
a court determines that the appeal was to an incorrect court, a
person shall have 30 days after the court determination to file
such appeal with the correct court. See
McCune v. Commissioner [Dec. 53,988], 115 T.C. 114 (2000)
(dismissing a petition for lack of jurisdiction where the taxpayer
failed to file his initial petition for review with the We
have held that the Court's jurisdiction under sections 6320 and
6330 depends upon the issuance of a 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. In
the instant case, petitioner erroneously filed his initial
petition with the District Court. On Section
6330(d)(1) provides in unambiguous terms that "If a court
determines that the appeal was to an incorrect court, a person
shall have 30 days after the court determination to file such
appeal with the correct court." The 30-day period within
which petitioner had to file a petition for review with the Court
began to run on On
the basis of the foregoing, we hold that we lack jurisdiction
inasmuch as the petition was not timely filed with the Court.
Accordingly, we shall grant respondent's motion to dismiss for
lack of jurisdiction. Petitioner
also contends that the Appeals Office issued the notice of
determination without conducting an administrative hearing. In Lunsford
v. Commissioner [Dec. 54,552], 117 T.C. 159, 164 (2001), we
recently held that we shall not look behind a notice of
determination to consider whether the Appeals Office conducted an
administrative hearing. Consistent with our holding in Lunsford
we hold that the notice of determination issued to petitioner is
valid. We
have considered petitioner's remaining arguments and find them to
be meritless. To
reflect the foregoing, An
order of dismissal for lack of jurisdiction will be entered. 1
Unless otherwise indicated, section references are to sections of
the Internal Revenue Code, as amended, and Rule references are to
the Tax Court Rules of Practice and Procedure. This case was
assigned pursuant to sec. 7443A(b)(4). 2
At the time the petition was filed, petitioner resided in 3
Before the hearing, the Court summarily denied petitioner's motion
for hearing to determine real parties in interest. The motion was
replete with frivolous arguments and, among other things,
asserted: Natural
person petitioner, Franklin A. Ogden therefore requests a hearing
wherein respondent must declare via a sworn statement, subject to
the penalty of perjury under the laws of the United States,
whether it is the legal fiction FRANKLIN A. OGDEN, respondent is
asserting a tax liability for the 1984 tax year, or is respondent
asserting that natural person Franklin A. Ogden has a tax
liability for the 1984 tax year. [2002-1
USTC ¶50,377] Jeffrey Paul Walz, Plaintiff v.
Jeffrey
Paul Walz, pro se. Michael R. Pahl, Department of Justice, MEMORANDUM
OPINION AND ORDER KYLE,
District Judge: In
July 2000, the Internal Revenue Service ("IRS") assessed
Walz a $500.00 penalty for filing a frivolous tax return. Walz did
not pay the penalty, and the IRS sent him a notice of intent to
levy for the unpaid penalty. In that notice, the IRS informed Walz
that he was entitled to request a collection due process
("CDP") hearing under 26 U.S.C. §6330 to examine
whether the proposed levy was appropriate. Walz made the request;
at the CDP hearing, it was determined that the levy was
appropriate. Under §6330(d), Walz had thirty days from the CDP
determination to appeal the ruling to the appropriate federal
district court. After first sending a complaint to the Brooklyn
Center, Minnesota, office of the IRS, Walz filed a Complaint in
this Court seeking to appeal under 26 U.S.C. §6330(d). Walz,
however, filed the Complaint more than thirty days after the CDP
determination. Before the Court is the Government's Motion to
Dismiss for Lack of Jurisdiction under Federal Rule of Civil
Procedure 12(b)(1); Insufficient Service of Process under Federal
Rule of Civil Procedure 12(b)(5); and Failure to State a Claim
Upon Which Relief Can Be Granted under Federal Rule of Civil
Procedure 12(b)(6). For the reasons set forth below, the motion
will be granted. Background On
his 1999 federal individual income tax return, Walz entered a zero
on every income and tax line. (Pl. Ex. F.) Walz owed no federal
income tax for the 1999 tax year. ( On
The
CDP hearing took place on On
In
the Complaint, Walz seeks, among other things, to have the CDP
hearing determination declared "invalid" and to compel
the IRS to respond to his discovery requests. (Compl.) On Analysis The
Internal Revenue Service Restructuring and Reform Act of 1998
includes a provision, codified at 26 U.S.C. §6330, which provides
that prior to the issuance of an administrative tax levy, the IRS
must give the taxpayer notice of and the opportunity for an
administrative review of the matter in the form of a CDP hearing.
26 U.S.C. §6330. Subsection (d) of §6330 outlines the means for
obtaining judicial review of a CDP determination if the taxpayer
is dissatisfied with that determination. 26 U.S.C. §6330(d).
Section 6330(d)(1) provides that a taxpayer may seek judicial
review of any determination made under that section by filing a
petition with the appropriate court within thirty days of a
determination being made. 26 U.S.C. §6330(d)(1). The appropriate
court is either the Tax Court or a United States District Court,
depending on the nature of the underlying dispute. Bartschi v.
Tracy [2001-2 USTC ¶50,672], 2001 WL 1338795 at * 3 (D. Ariz.
The
Government contends that this Court does not have jurisdiction to
hear Walz's appeal because he did not file a notice of appeal with
the appropriate court within the thirty-day statutory time period.
3 (Gov. Mem.
in Supp. of Mot. to Dismiss at 3.) As noted above, the thirty-day
appeal period is jurisdictional. ( Walz
is correct that §6330(d) provides for an additional thirty days
to file with the correct court if "a court determines that an
appeal was to an incorrect court." 26 U.S.C. 6330(d)
(emphasis added). When the statute refers to the "incorrect
court" and the "correct court," it refers to an
appeal made to the Tax Court when it should have been to a United
States District Court or vice versa. See Bartschi [2001-2
USTC ¶50,672], 2001 WL 1338795 at * 3 (explaining which type of
appeal is heard by the Tax Court and by a United States District
Court). Walz, however, did not file a Complaint with any court in
August 2001. He filed it with the IRS, which is not a court.
Therefore, Walz is not entitled to the additional thirty days
provided under §6330(d)(1) for a timely filing. The
CDP determination was sent to Walz on Conclusion Upon
all the files, records, and proceedings herein, and for the
reasons stated above, IT IS ORDERED that 1.
Defendant's Motion to Dismiss (Doc. No. 3) is GRANTED; and 2.
Walz's Complaint (Doc. No. 1) is hereby DISMISSED WITH
PREJUDICE. LET
JUDGMENT BE ENTERED ACCORDINGLY. 1
The Court does not have a copy of what was sent to the 2
Walz, however, failed to complete a civil cover sheet. (Pl. Ex.
C.) A civil cover sheet was sent to Walz, which he completed and
submitted to the Clerk of Court on 3
The Government also moves to dismiss Walz's Complaint on the
grounds that there was insufficient service of process and that
the Complaint fails to state a claim upon which relief can be
granted. (Gov. Mem. in Supp. of Mot. to Dismiss at 4-6.) Because
the Court concludes that it does not have jurisdiction over this
matter, it does not reach the Government's or Walz's arguments
relating to service of process and failure to state a claim upon
which relief can be granted. [2002-1
USTC ¶50,415] Gregory Allen McNeil, Plaintiff v.
Gregory
Allen McNeil, Kentwood, Mich., pro se. Thomas P. Cole,
Department of Justice, Washington, D.C. 20530, for defendant. OPINION
AND MILES,
Senior District Judge: On
Discussion After
plaintiff received from the IRS a notice explaining his right to a
collection Due Process hearing, plaintiff submitted an IRS form
12153 "Request for a Collection Due Process Hearing."
Plaintiff was granted a hearing on On
The
United States responded to plaintiffs complaint by filing the
present motion to dismiss, seeking dismissal on the basis that the
court lacks jurisdiction to hear this action because plaintiff
failed to file his complaint within the 30-day period prescribed
by 26 U.S.C. §6330(d)(1). Title
26 U.S.C. §6330(d)(1) provides as follows: (d)
Proceeding after hearing.-- (1)
Judicial review of determination.--The person may, within 30 days
of a determination under this section, appeal such determination-- (A)
to the Tax Court (and the Tax Court shall have jurisdiction with
respect to such matter); or (B)
if the Tax Court does not have jurisdiction of the underlying tax
liability, to a district court of the The
United States argues that based on §6330(d)(1), this action was
not timely filed within the required 30-day period and therefore
the court lacks jurisdiction over plaintiff's request for review
of the IRS' determinations. 2 Plaintiff
disputes this assertion, for a number of reasons, which include
the following: (1) he is a pro se litigant, and the tax
laws are written in such a way that he should be deemed to have
difficulty in understanding and complying with them; (2) mail
service in the United States was suspended for one or more days
following the attacks on the World Trade Center and Pentagon on The
court begins by noting the limits of its jurisdiction, which are
informed by settled principles of sovereign immunity. "The As
for plaintiff's excuse that he is a pro se litigant, the
court concludes that this explanation does not excuse his
non-compliance with the 30-day requirement. Even assuming that
plaintiff (whose educational level is not known to the court) has
difficulty comprehending the tax laws, any such difficulty did not
prevent him from responding to the notices in a timely manner; the
notices themselves informed plaintiff, in clear language, when he
must act. Plaintiff has failed to identify anything about the
notices' explanation of the 30-day requirement that he did not
understand. As
for plaintiff's reliance on the alleged temporary suspension of
mail service in the As
for the plaintiff's assertion that the court should in any event
apply a three-day "mail rule" such as that contemplated
by Fed.R.Civ.P. 6(e), the Federal Rules only govern procedures in
civil suits once an action is begun. A civil action is commenced
by filing a complaint with the court. Fed.R.Civ.P. 3. "Filing
with the Court" is defined by the rules as "filing . . .
with the clerk of court," "filing" with the judge
(where permitted), or "filing" by electronic means in
compliance with the local rules. Fed.R.Civ.P. 5(e). Nothing in
Rule 6(e) provides that an action is deemed "filed" upon
mailing by a plaintiff. The
Sixth Circuit has held, in the context of a petition to quash a
third-party summons that is filed more than 20 days after the IRS
mails notice of the summons to the taxpayer under 26 U.S.C. §7609(b)(2)(A),
that the petition must be dismissed for lack of jurisdiction and
Fed.R.Civ.P. 6(e) does not extend the limitations period by three
days. Shisler v. United States of America [2000-1 USTC ¶50,126],
199 F.3d 848, 852 (6th Cir. 1999); Clay v. United States of
America [2000-1 USTC ¶50,155], 199 F.3d 876, 880 (6th Cir.
1999). If a limitation period is jurisdictional for purposes of §7609,
then there is no reason why a similar period prescribed within
another code section, such as §6330(d)(1), should not also be
viewed as jurisdictional and therefore not subject to extension.
The United States Tax Court has clearly viewed the 30-day period
prescribed in §6330(d)(1) as jurisdictional. Sarrell v.
Commissioner of Internal Revenue [CCH Dec. 54,494], 117 T.C.
122, 125 (2001); McCune v. Commissioner of Internal Revenue
[CCH Dec. 53,988], 115 T.C. 114, 117-118 (2000). The court agrees
that the time period is jurisdictional and cannot be extended
simply because the plaintiff received the Notice of Determination
by mail. Assuming
that equitable considerations would at all be relevant under
certain circumstances, see United States v. Brockamp [97-1
USTC ¶50,216; 97-1 USTC ¶60,259], 519 U.S. 347, 117 S.Ct. 849,
852, 136 L.Ed.2d 818 (1997) ("Tax law, after all, is not
normally characterized by case-specific exceptions reflecting
individualized equities"), it is clear that equities do not
here demand that plaintiff be granted an extension of time in
which to file his action. Plaintiff complains that he had to go to
the Finally,
while 26 U.S.C. §7502(a) establishes what is in effect a
"mailbox rule" in some instances, there is no indication
in the statute that this rule applies here. Mailbox rules which
operate to extend to limitations periods have been applied by the
courts only under extremely narrow circumstances, such as where
the plaintiff is incarcerated and is therefore unable to control
when his pleading is placed in the mails. See Towns v. United
States, 190 F.3d 468, 469 (6th Cir. 1999) (prison mailroom
filing rule of Houston v. Lack, 487 U.S. 266, 108 S.Ct.
2379, 101 L.Ed.2d 245 (1988) applied to render federal prisoner's
motion to vacate sentence under 28 U.S.C. 2255 timely). The court
is simply not inclined to apply any rule which would operate to
extend the statutory period at issue here, under the circumstances
as presented, where Congress has clearly chosen to limit the time
period in which a taxpayer may file a complaint against the
sovereign. The federal courts "have been rather consistent in
denying 'equitable' pleas to disregard the strict timing
rules" of the Tax Code. Smith v. United States [96-2
USTC ¶50,560], 96 F.3d 800, 802 (6th Cir. 1996). In any event,
plaintiff's complaint bears a sworn execution date of The
burden was on the plaintiff to establish that the court has
subject matter jurisdiction over this action by virtue of a timely
filed complaint. Plaintiff has failed to meet this burden, and the
court therefore dismisses this action, which was untimely filed,
for lack of jurisdiction. So
ordered. 1
The Notice of Determination for the 1990--1992 tax periods
contains the following statement: If
you want to dispute this determination in court, you must file a
petition with the United States Tax Court for a redetermination within
30 days from the date of this letter. Complaint,
Exhibit A1 (emphasis supplied). The Notice of Determination for
the If
you want to dispute this determination in court, you have 30
days from the date of this letter to file a complaint in this
appropriate United States District Court for a redetermination. Complaint,
Exhibit A2 (emphasis supplied). 2
While §6330(d)(1) further provides that a person shall have an
additional 30 days to file an appeal if a court determines that
the appeal was originally filed in an incorrect court, id.,
that provision is not at issue here, as plaintiff is not claiming
that a previous appeal has been dismissed after having been filed
in the wrong court. 3
The address which plaintiff provided on his complaint filed in
this action is [Dec.
54,797(M)] Thomas &
Iris Tilley v. Commissioner
Knox
Kent Lively III, for the petitioners. Blake Ferguson and J. Craig
Young, for the respondent. MEMORANDUM
OPINION PAJAK,
Special Trial Judge: This
case comes before the Court on respondent's Motion To Dismiss For
Lack Of Jurisdiction, and on petitioners' cross-motion to dismiss.
Section references are to the Internal Revenue Code as amended. On
The
notice of determination for the 1991 and 1992 income taxes was
sent to petitioners at their last known address, Petitioners
filed one petition for review of respondent's notices of
determination relating to the Federal income taxes for the taxable
years 1991, 1992, 1994, and 1995. Petitioners resided in The
30-day period provided by section 6330(d)(1) for timely filing a
petition for review of the notices of determination with this
Court expired on Petitioners
do not contest the foregoing facts. Respondent's
position is that the petition was not filed with the Court within
the time prescribed by sections 6330(d)(1) or 7502. Petitioners'
position is that respondent did not provide petitioners with an
opportunity for a hearing as required by section 6330 and
therefore that this Court should dismiss this case because
petitioners claim the notices of determination are invalid. There
is no dispute that the Court lacks jurisdiction in this case. Section
6330 provides in part as follows: SEC.
6330(a). Requirement Of Notice Before Levy.-- (1)
In General.--No levy may be made on any property or right to
property of any person unless the Secretary has notified such
person in writing of their right to a hearing under this section
before such levy is made. Such notice shall be required only once
for the taxable period to which the unpaid tax specified in
paragraph (3)(A) relates. (2)
Time And Method For Notice.--The notice required under paragraph
(1) shall be-- ******* (C)
sent by certified or registered mail, return receipt requested, to
such person's last known address; 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. (3)
Information Included With Notice.--The notice required under
paragraph (1) shall include in simple and nontechnical terms-- (A)
the amount of unpaid tax; (B)
the right of the person to request a hearing during the 30-day
period under paragraph (2); and ******* (b)
Right To Fair Hearing.-- (1)
In General.--If the person requests a hearing under subsection
(a)(3)(B), such hearing shall be held by the Internal Revenue
Service Office of Appeals. (2)
One Hearing Per Period.--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. On
This
case has been referred to our office. I
will write or call you soon to arrange a mutually satisfactory
date for a conference. If
you need to contact me in the meantime, you may write me at the
address below or call me at the telephone number shown above.
Please enclose a copy of this letter with any written
correspondence. On
During
the telephone conference, Mr. Wilson asked Mr. Tilley if he wanted
a face-to-face meeting. As Mr. Wilson testified: "I asked him
at the beginning of the conference whether he wanted a
face-to-face meeting. He said, Not at this time. And at the end of
the conference, I asked him if he had any questions for me, and he
did not ask for a person-to-person hearing at that time." Mr.
Wilson also said: "Well, after I explained that if there were
no other issues, I'd be issuing a determination letter, at which
time he [Mr. Tilley] indicated it would be fine just to go ahead
and send the transcripts with the determination letter instead of
separately, or earlier." It
is obvious from the record that Mr. Tilley and the Appeals officer
did in fact discuss the case over the telephone and that the
Appeals officer heard and considered Mr. Tilley's arguments. In Katz
v. Commissioner [Dec. 54,081], 115 T.C. 329, 337-338 (2000),
this Court held that where the taxpayer and the Appeals officer
had a telephone conference about the taxpayer's arguments, the
taxpayer had received an Appeals hearing as provided in section
6320(b) in the circumstances of that case. On
On
Because
the notices of determination were valid, we consider respondent's
motion. Petitioners acknowledge in their cross-motion to dismiss
that a petition from a notice of determination must be filed
within 30 days of such a determination. The undisputed facts
underlying respondent's motion and set forth above compel us to
conclude that this petition was untimely under section 6330(d)(1)
or 7502, and this case must be dismissed for that reason. An
appropriate Order and Order of Dismissal will be entered. [2002-2
USTC ¶50,496] Leslie K. Larson, Plaintiff v. U.S.
District Court, Dist., Nev., CV-S-02-0094-KJD (RJJ), DAWSON,
District Judge: Presently,
the Court has before it the Government's Motion to Dismiss (#3).
The Government filed its motion on Moreover,
after having read and considered the motion, the Courts finds it
meritorious. Substantively, the Government seeks the dismissal of
Plaintiff's complaint for untimeliness. Plaintiff's federal income
tax return filed for the 1998 income tax year had zeros on all the
lines of the return which reflected income or tax due to the
Government. However, attached to the return was a Form W-2
reflecting wages, tips, or other compensation for that year in the
amount of $50,863.22. Also attached were statements in which
Plaintiff set forth his argument as to why the federal income tax
does not apply to him. At Plaintiff's request, a collection due
process hearing was held regarding the frivolous return penalty
assessed for his 1998 federal income tax return. On Before
a levy may be made on the property of any taxpayer, such taxpayer
must be notified of his right to request a pre-levy hearing. See
26 U.S.C. §6330(a). Following the hearing the taxpayer is sent a
Notice of Determination that summarizes the matters raised during
the hearing and responds to any offers or objections made by the
taxpayer. The taxpayer may file an appeal with the Tax Court or,
if the Tax Court lacks jurisdiction over the underlying tax
liability, with the appropriate federal district court. See id.
§6330(d)(1). Regardless of where the appeal must be taken, the
taxpayer has thirty days from the date of the determination to
file an appeal. See id. In
the instant case, the IRS issued the Notice of Determination on Accordingly,
IT IS HEREBY ORDERED that the Government's Motion to Dismiss (#3)
is GRANTED. [2003-1 USTC ¶50,365] John Armel, Jr., Plaintiff v. Jurisdiction
was lacking over an individual's untimely petition challenging his
notice of determination. The taxpayer failed to file his petition
within 30 calendar days after the notice of determination was
issued. ORDER
[2003-2 USTC ¶50,544] Medical Psychiatric Association, Plaintiff v. Internal Revenue,
Defendant. The
district court lacked jurisdiction to review an IRS Appeals
officer's Collection Due Process (CDP) determination that federal
tax liens were appropriate to collect a medical association's
unpaid employment taxes. The taxpayer failed to timely file an
appeal of the CDP determination. The taxpayer contended that,
pursuant to Code
Sec. 7502(a)(1), the appeal was timely because it had
been postmarked on the last day of the limitations period.
However, Code
Sec. 7502(d)(1) provides that the date of actual
receipt and filing by the clerk of court determines whether
documents filed with a court other than the Tax Court, are timely.
While the taxpayer may have mailed its appeal within the
limitations period, it was not received and filed until after the
expiration of the 30-day period.
ORDER
GRANTING MOTION TO DISMISS
BACKGROUND
DISCUSSION
Date
of delivery. If any return, claim, statement, or other document
required to be filed, or any payment required to be made, within a
prescribed period or on or before a prescribed date under
authority of any provision of the internal revenue laws is, after
such period or such date, delivered by United States mail to the
agency, officer, or office with which such return, claim,
statement, or other document is required to be filed, or to which
such payment is required to be made, the date of the United States
postmark stamped on the cover in which such return, claim,
statement, or other document, or payment, is mailed shall be
deemed to be the date of delivery or the date of payment, as the
case may be.
CONCLUSION
[Dec.
54,915] Ranie M. Raymond v.
Commissioner [Code
Secs. 6015 and 6330]
On
her 1991 tax return, P's filing status was listed as "Married
filing separate return". On Held:
The petition was timely filed in order for the Court to have
jurisdiction to review R's denial of spousal relief. Sec.
6015(e)(1), I.R.C. Held,
further, R's Motion for
Partial Summary Judgment is granted because there is no genuine
issue as to whether P is entitled to relief under I.R.C. sec.
6015. P is not entitled to relief under I.R.C. secs.
6015(b), (c), and (f) because she did not file a joint return. Ranie
M. Raymond, pro se. A. Gary Begun, for the respondent. OPINION VASQUEZ,
Judge: This
case is before the Court on respondent's motion for partial
summary judgment under Rule 121.1 Background At
the time of the filing of the petition, petitioner resided in
Livonia, Michigan. On her 1991 Federal income tax return,
petitioner's filing status was listed as "Married filing
separate return". At the time of the filing of the tax
return, no payment was made on the amount reported as due on the
tax return. Respondent applied petitioner's tax refunds from 1995
and 1998 in partial satisfaction of the amount due for 1991. On
On
On
Discussion Petitioner
alleges that she signed a blank form, she did not fill out the tax
return, and she did not earn the income listed on the tax return.
Petitioner filed the petition to request relief from liability
under section
6015 for tax due on the income listed on her tax return
that she allegedly did not earn. The
issues presented are: (1) Whether the petition was timely filed
for this Court to have jurisdiction; and (2) whether a taxpayer
must file a joint return to be eligible for relief under section
6015. I.
Jurisdiction It
is well settled that this Court can proceed in a case only if we
have jurisdiction and that any party, or the Court sua sponte, can
question jurisdiction at any time, even after the case has been
tried and briefed. Neely v. Commissioner [Dec.
54,062], 115 T.C. 287, 290 (2000); Romann v.
Commissioner [Dec.
52,939], 111 T.C. 273, 280 (1998); Normac, Inc.
& Normac Intl. v. Commissioner [Dec.
44,539], 90 T.C. 142, 146-147 (1988); Brown v.
Commissioner [Dec.
38,765], 78 T.C. 215, 218 (1982). Our
jurisdiction under section
6330(d)(1) depends on the issuance of a valid notice of
determination and a timely petition for review. Lunsford v.
Commissioner [Dec.
54,552], 117 T.C. 159, 165 (2001). Section
6330(d)(1) provides that a person may appeal a notice
of determination by filing a petition within 30 days of the
notice. Sec.
6330(d)(1). We
lack jurisdiction to review petitioner's claim under section
6330. Petitioner filed a petition with this Court later
than 30 days after the notice of determination.3 We have
held that the 30-day period provided by section
6330(d)(1) is jurisdictional and cannot be extended.
McCune v. Commissioner [Dec.
53,988], 115 T.C. 114, 117 (2000). However,
petitioner raised a spousal defense in the Appeals Office
proceeding before the Commissioner made a final determination. Sec.
6330(c)(2)(A)(i); sec.
301.6330-1(e)(2), Proced. & Admin. Regs. In the
notice of determination, respondent determined that petitioner was
not entitled to relief under section
6015 because she did not file a joint return. The
timeliness of the petition, insofar as it seeks review of the
administrative denial of section
6015 relief, is, therefore, dependent upon section
6015(e)(1).4 Under
this section, we have jurisdiction to review respondent's
determination as to section
6015 relief because petitioner filed her petition
within 90 days of the notice of determination.5
Respondent
moved for partial summary judgment on the issue of whether
petitioner is eligible for relief under section
6015. Respondent argues that petitioner is not entitled
to relief under section
6015 because she did not file a joint tax return. Rule
121(a) provides that either party may move for summary judgment
upon all or any part of the legal issues in controversy. Full or
partial summary judgment may be granted only if it is demonstrated
that no genuine issue exists as to any material fact and a
decision may be entered as a matter of law. See Rule 121(b); Sundstrand
Corp. v. Commissioner [Dec.
48,191], 98 T.C. 518, 520 (1992), affd. [94-1
USTC ¶50,092] 17 F.3d 965 (7th Cir. 1994). A.
Relief Under Section 6015(b) and (c) Relief
is not available to petitioner under section
6015(b) and (c) because petitioner did not file a joint
return. Both sections explicitly require that a joint return be
filed for relief to be granted.6 Sec.
6015(b) and (c). B.
Relief Under Section 6015(f) On
its face, section
6015(f) does not require that a joint return be filed
in order for equitable relief to be granted under that section.7 As
directed by section
6015(f), the Commissioner uses procedures under Rev.
Proc. 2000-15, 2000-1 C.B. 447 (the revenue procedure),
to determine whether an individual qualifies for relief under that
section. Section
4.01 of the revenue procedure lists seven threshold
conditions, including the filing of a joint return, that must be
satisfied before the Commissioner will consider a request for
relief under section
6015(f).8 The
legislative history of section
6015 further demonstrates that Congress intended a
joint return requirement to apply to section
6015(f). The conference agreement accompanying the
enactment of section
6015(f) contemplates that a joint return be filed as a
prerequisite for the grant of equitable relief. H. Conf. Rept.
105-599, at 254 (1998), 1998-3 C.B. 747, 1008. The agreement
stated: The
conference agreement does not include the portion of the Senate
amendment that could provide relief in situations where tax was shown
on a joint return, but not paid with the return. The conferees
intend that the Secretary will consider using the grant of
authority to provide equitable relief in appropriate situations to
avoid the inequitable treatment of spouses in such situations. *** The
conferees do not intend to limit the use of the Secretary's
authority to provide equitable relief to situations where tax is
shown on a return but not paid. The conferees intend that such
authority be used where, taking into account all the facts and
circumstances, it is inequitable to hold an individual liable for
all or part of any unpaid tax or deficiency arising from a
joint return. *** [Emphasis added.] Id.
The agreement clarifies that the conferees intended that relief
may be granted if it is inequitable to hold the taxpayer liable
for the unpaid tax or deficiency shown on a joint return. This
requirement of a joint return is also consistent with the caption
to section
6015, Relief From Joint and Several Liability on Joint
Return. We,
therefore, conclude that a joint return must be filed in order for
a taxpayer to be granted equitable relief under section
6015(f). As
a result, we shall grant respondent's motion for partial summary
judgment because no genuine issue exists as to whether petitioner
is entitled to relief under section
6015. Petitioner is not entitled to relief under section
6015 because she did not file a joint return. Because
respondent's motion for partial summary judgment covers the
remaining issues in the instant case, we treat it as a motion for
full summary judgment, which we shall grant. To
reflect the foregoing, An
appropriate order and decision will be entered. 1
Unless otherwise indicated, all Rule references are to the Tax
Court Rules of Practice and Procedure, and all section references
are to the Internal Revenue Code in effect at all relevant times. [2004-2 USTC ¶50,318] X. Nathanial Mosley v.
Secretary of the Treasury, et al. Jurisdiction
was lacking over an individual's untimely appeal of a notice of
determination. The taxpayer argued that Sundays and holidays
should not be counted for the 30-day window under Code
Sec. 6330(d) in which to file an appeal. The
jurisdictional requirement, however, is that the appeal must be
filed within 30 calendar days. ORDER
[2005-1 USTC ¶50,145] Barbara J. Kone, Plaintiff v. John Ashcroft, Attorney General, and
Thomas DiBiagio, U.S. Attorney, Defendants. The
district court lacked jurisdiction over an individual's untimely
appeal of the IRS's determination of her tax liability. Under Code
Sec. 6330(d)(1) the taxpayer had 30 days from the Tax
Court's dismissal of her original petition for redetermination,
which was dismissed for lack of jurisdiction over the underlying
tax liability, to file her claim with the appropriate district
court. Her claim with the district court, however, was filed
approximately 90 days after expiration of the 30-day deadline. The
taxpayer's assertion that her claim was untimely because the IRS
had given her the wrong address for the court was not sufficient
enough to equitably estopped the government from raising the
taxpayer's noncompliance as a defense. Moreover, the 30-day filing
requirement was not subject to equitable tolling. MEMORANDUM
OPINION I.
II.
III.
IV.
Judicial
review of determination --The person may, within 30 days of a
determination under this section, appeal such determination -- (A)
to the Tax Court (and the Tax Court shall have jurisdiction with
respect to such matter); or (B)
if the Tax Court does not have jurisdiction of the underlying tax
liability, to a district court of the United States. If
a court determines that the appeal was to an incorrect court, a
person shall have 30 days after the court determination to file
such appeal with the correct court.
[2005-2 USTC ¶50,516] Constance G. Larson, Plaintiff v. United States of America, Department
of the Treasury, Internal Revenue Service, and Commissioner of the
Internal Revenue Service, Defendants. An
individual's action to enjoin the IRS from collecting her unpaid
income and employment taxes, as well as penalties based on a
finding that she was a "responsible person," was barred
by the Anti-Injunction Act. The taxpayer claimed that she had no
Collection Due Process (CDP) hearing before receiving a notice of
determination denying her administrative appeal. While Code
Sec. 6330 does permit judicial review of a notice of
determination, the taxpayer's complaint never requested such
review, but asked only for an injunction of the IRS levy. There
was, however, no statutory exception to the Anti-Injunction Act
because there was a strong likelihood that the court would find
that the taxpayer was not denied a CDP hearing. Therefore, the
court had no jurisdiction. Even if the taxpayer's complaint could
have been considered a request for judicial review of the CDP
determination, it was time-barred because the taxpayer filed her
complaint more than 30 days after the date of the notice of
determination. Lawrence
E. Bolind, Jr., for plaintiff. Albert W. Schollaert, U.S.
Attorney's Office, Dara B. Oliphant, Department of Justice, for
defendants. MEMORANDUM
OPINION
Defendants
first argue that plaintiff's complaint must be dismissed because
she did not properly serve the United States, as required by
Federal Rule of Civil Procedure 4(i). Rule 4(i) provides: i)
Serving the United States, Its Agencies, Corporations, Officers,
or Employees (1)
Service upon the United States shall be effected (A)
by delivering a copy of the summons and of the complaint to the
United States attorney for the district in which the action is
brought ... and (B)
by also sending a copy of the summons and of the complaint by
registered or certified mail to the Attorney General of the United
States at Washington, District of Columbia. Fed.
R. Civ. P. 4(i). Defendants
next argue that under the Anti-Injunction Act, 26 U.S.C. §7421,
this Court is prohibited from exercising jurisdiction over
plaintiff's motion to enjoin the IRS levy. The Anti-Injunction Act
states: (a)
Tax. Except as provided in sections
6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b),
6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1),
7429(b), and 7436, no suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any
court by any person. 26
U.S.C. §7412(a).
In addition to the statutory exceptions listed, a judicial
exception to the Anti-Injunction Act exists so that jurisdiction
over an injunction request may be appropriate where "(1)
under no circumstances can the government ultimately prevail on
the merits; and (2) the taxpayer will suffer irreparable
injury without injunctive relief." Elias v. Connett [ 90-2
USTC ¶50,397], 908 F.2d 521, 525 (9th Cir. 1990)
(emphasis added). See also, Enochs v. Williams Packing
& Navigation Co. [ 62-2
USTC ¶9545], 370 U.S. 1, 6-8 (1962) (establishing that
unless both irreparable injury to plaintiff and the government's
inability to prevail are shown, "§7421(a)
bars any suit for an injunction"). Finally,
defendants argue that, to the extent that plaintiff's complaint
could be considered a request for judicial review of the CDP
determination, it is time-barred and this Court lacks jurisdiction
to hear it. Regarding
judicial review of a CDP determination, the Internal Revenue Code
states: (d)
Proceeding after hearing. -- (1)
Judicial review of determination. --The person may, within 30
days of a determination under this section, appeal such
determination -- (A)
to the Tax Court (and the Tax Court shall have jurisdiction with
respect to such matter); or (B)
if the Tax Court does not have jurisdiction of the underlying tax
liability, to a district court of the United States." 26
U.S.C. §6330(d)(1) (emphasis
added). ORDER
OF COURT
[2005-1 USTC ¶50,128] Michael G. Blankenship, Plaintiff v. United States of America,
Defendant. A
taxpayer's Collection Due Process hearing was valid despite his
contention that the officer failed to verify that the requisite
requirements had been met. While the Appeals officer is required
to obtain verification that the requirements of any applicable law
or administrative procedure have been met, there is no requirement
that the officer rely on any particular form, or provide the
taxpayer with a copy of the verification on which the officer
relied. The officer obtained and provided to the taxpayer
transcripts showing the assessment of a frivolous return penalty. A
taxpayer's claim that he never received notice and demand for
payment of the frivolous return penalty assessed against him
lacked merit. The administrative files contained numerous
responses from the taxpayer indicating that he had received the
notice. Service
of a suit challenging the validity of a Collection Due Process
hearing upon the United States Attorney's office, rather than the
IRS, was insufficient service of process. The taxpayer's complaint
is subject to dismissal without prejudice. AMENDED
MEMORANDUM AND OPINION
A.
Service of Process
B.
The Merits
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