Roberts v. Comm'r ( 2010 )

T.C. Summary Opinion 2010-21
UNITED STATES TAX COURT
EDMUND DOUGLAS ROBERTS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7222-09S. Filed March 1, 2010.
Edmund Douglas Roberts, pro se.
Matthew D. Carlson, for respondent.
RUWE, Judge: This case was brought pursuant to the
provisions of section 74631 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
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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.
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the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. This matter is before the Court on respondent’s motion to
dismiss for lack of jurisdiction (motion to dismiss).
Background
At the time the petition was filed, petitioner resided in
California. The following facts were taken from respondent’s
motion to dismiss, as supplemented, and are not in dispute. A
hearing was held on February 1, 2010, at which respondent’s
counsel and petitioner were heard.
On April 17, 2007, respondent sent to petitioner, by
certified mail, a Final Notice–-Notice of Intent to Levy and
Notice of Your Right to a Hearing (6330 notice) with regard to
petitioner’s unpaid tax for 2002. On April 26, 2007, respondent
sent to petitioner, by certified mail, a Notice of Federal Tax
Lien Filing and Your Right to a Hearing Under IRC 6320 (NFTL)
also with regard to petitioner’s unpaid tax for 2002. Curiously,
the NFTL was not sent to the same address as the 6330 notice. On
May 7, 2007, the 6330 notice was returned to respondent, and the
envelope in which it had been sent was marked “Return to Sender--
Unclaimed--Unable to Forward”.
On March 19, 2008, respondent received from petitioner a
Form 12153, Request for a Collection Due Process or Equivalent
Hearing. The Form 12153 was signed by petitioner and dated March
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17, 2008, and the envelope that contained the Form 12153 bears a
postmark date of March 18, 2008. On the Form 12153 petitioner
requested an “Equivalent Hearing” regarding tax years 2002 and
2004. Petitioner subsequently sent to respondent a Form 12256-c,
Withdrawal of Request for Collection Due Process or Equivalent
Hearing, with regard to tax year 2004.
Respondent’s Office of Appeals held an equivalent hearing
and, on February 19, 2009, issued to petitioner a Letter 3210,
Decision Letter Concerning Equivalent Hearing Under Section 6320
and/or 6330 of the Internal Revenue Code (decision letter),
rather than a notice of determination.
On March 23, 2009, petitioner filed a petition generally
contesting the underlying tax liability for tax year 2002. The
envelope in which the petition was mailed was postmarked March
17, 2009. Although petitioner indicated that the petition was
filed to dispute a notice of determination concerning a
collection action, petitioner enclosed with his petition a copy
of the decision letter rather than a notice of determination.
On October 19, 2009, respondent filed a motion to dismiss
on the ground that “no notice of determination under I.R.C.
§ 6320 or 6330 was sent to petitioner for taxable year 2002, nor
has respondent made any other determination with respect to
taxable year 2002 that would confer jurisdiction on this Court.”
By order dated October 23, 2009, petitioner was directed to file
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a response to respondent’s motion to dismiss. On November 30,
2009, petitioner filed an objection to respondent’s motion to
dismiss. In his objection petitioner ostensibly disputes the
motion to dismiss, but he does not challenge respondent’s
assertion that this Court lacks jurisdiction. Rather, petitioner
attempts to dispute the underlying tax liability.
On December 23, 2009, this Court directed respondent to
supplement his motion to dismiss and address his position with
respect to petitioner’s last known address on the dates that the
6330 notice and the NFTL were mailed.
On January 22, 2010, respondent filed a supplement to the
motion to dismiss. In his supplement respondent avers that
petitioner’s last known address was correctly used on the 6330
notice. He further avers that the motion to dismiss should be
granted because petitioner’s request for a collection due process
(CDP) hearing was untimely and as a result no notice of
determination was issued. With respect to the petition as it
pertains to the NFTL, respondent concedes that the address used
on the NFTL was not petitioner’s last known address on the date
it was mailed and argues that the petition as it pertains to the
NFTL should be dismissed, citing Kennedy v. Commissioner, 116
T.C. 255 (2001).
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Discussion
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 Orum v.
Commissioner, 123 T.C. 1, 8 (2004), affd. 412 F.3d 819 (7th Cir.
2005); Sarrell v. Commissioner, 117 T.C. 122, 125 (2001); Offiler
v. Commissioner, 114 T.C. 492, 498 (2000); see also Rule 330(b).
It is clear that respondent did not issue a notice of
determination in respect of petitioner’s outstanding tax
liability for 2002. However, a necessary predicate for the
issuance of a notice of determination is the issuance of a 6330
notice or an NFTL sent to the taxpayer at his last known address.
Secs. 6320(a)(2)(C), 6330(a)(2)(C); see Kennedy v. Commissioner,
T.C. Memo. 2008-33; Buffano v. Commissioner, T.C. Memo. 2007-32.
Thus, although the Court does not have jurisdiction with respect
to either the 6330 notice or the NFTL, we must still decide the
proper basis for dismissal. Kennedy v. Commissioner, T.C. Memo.
2008-33 (citing Kennedy v. Commissioner, 116 T.C. 255, 263
(2001)).
Section 6330 Notice
Section 6330(a)(2) provides that the 6330 notice must be
given in person, left at the person’s dwelling or usual place of
business, or sent by certified or registered mail, return receipt
requested, to the person’s last known address. Respondent’s
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motion to dismiss, as supplemented, establishes that the 6330
notice was sent by certified mail to petitioner’s last known
address. Although the 6330 notice was returned to respondent,
actual receipt of the 6330 notice is not a prerequisite to its
validity. See sec. 301.6330-1(a)(3), Q&A-A9, Proced. & Admin.
Regs. Consequently, the 30-day period within which to request a
CDP hearing commenced the day after the date of the 6330 notice.
See sec. 6330(a)(3)(B); sec. 301.6330-1(b)(1), (c)(1), Proced. &
Admin. Regs.
If a taxpayer fails to timely request a CDP hearing pursuant
to a valid 6330 notice, the taxpayer may request and receive an
equivalent hearing that concludes when an Appeals officer issues
a decision letter. See Craig v. Commissioner, 119 T.C. 252, 258-
259 (2002). An equivalent hearing is not a waiver by the
Commissioner of the time restrictions for requesting a CDP
hearing, and a decision letter is not a determination letter
pursuant to section 6330. See Kennedy v. Commissioner, 116 T.C.
at 262-263; Offiler v. Commissioner, supra at 495. Thus,
respondent did not issue a determination letter to petitioner
sufficient to invoke this Court’s jurisdiction to review the 6330
notice for tax year 2002. Kennedy v. Commissioner, 116 T.C.
263. Accordingly, with respect to the 6330 notice, we will grant
respondent’s motion to dismiss, as supplemented, on the ground
that respondent did not make a determination pursuant to section
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6330 for 2002 because petitioner failed to file a timely request
for a CDP hearing pursuant to section 6330(a)(3)(B) and (b). See
id.
NFTL
As with a 6330 notice, section 6320(a)(2) provides that the
NFTL must be given in person, left at the person’s dwelling or
usual place of business, or sent by certified or registered mail
to the person’s last known address. In the motion to dismiss, as
supplemented, respondent concedes that the NFTL was not sent to
petitioner at his last known address.
Section 301.6320-1(a)(2), Q&A-A12, Proced. & Admin. Regs.,
provides, in pertinent part: “When the IRS determines that it
failed to properly provide a taxpayer with a CDP Notice, it will
promptly provide the taxpayer with a substitute CDP Notice and
provide the taxpayer with an opportunity to request a CDP
hearing.”
This Court has stated that if, as here, “the Secretary fails
to mail a section 6320 notice [NFTL] to the taxpayer at his last
known address or otherwise comply with section 6320(a)(2), we
dismiss the case on the ground that the purported section 6320
notice [NFTL] is invalid.” Graham v. Commissioner, T.C. Memo.
2008-129 (citing Kennedy v. Commissioner, 116 T.C. 261,
Kennedy v. Commissioner, T.C. Memo. 2008-33, and Buffano v.
Commissioner, supra).
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In sum, we find that the NFTL respondent issued with respect
to petitioner’s 2002 tax year was not mailed to petitioner’s last
known address, nor was it received, and, therefore, it is
invalid. See Buffano v. Commissioner, supra. Consequently,
respondent is required, under the provisions of section 6320 and
the accompanying regulations, to issue to petitioner a substitute
CDP notice and provide him with an opportunity to request a CDP
hearing. Accordingly, we hold that this Court lacks jurisdiction
on the ground that the NFTL was invalid. See Kennedy v.
Commissioner, T.C. Memo. 2008-33.
To reflect the foregoing,
An appropriate order of
dismissal for lack of
jurisdiction will be entered.