Sapp v. Comm'r ( 2003 )

KENNETH A. SAPP, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Sapp v. Comm'r

No. 5759-02L

United States Tax Court

T.C. Memo 2003-207; 2003 Tax Ct. Memo LEXIS 206; 86 T.C.M. (CCH) 65;

July 15, 2003, Filed

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Order to be issued denying petitioner's motion to dismiss.

Kenneth A. Sapp, pro se.

Veena Luthra, for respondent.

Chiechi, Carolyn P.

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CHIECHI

MEMORANDUM OPINION

CHIECHI, Judge: This case is before us on petitioner's motion to dismiss for lack of jurisdiction. ^{section 6320 and/or 6330    Summary of Determination}

   The Internal Revenue Service mailed a Letter 1058, Final

   Notice - Notice Of Intent To Levy And Notice Of Your Right To A

   Hearing, on March 7, 2001 concerning the unpaid Federal

   income tax (Form 1040) for the periods ending noted above

   [taxable years 1990, 1991, 1992, 1993, and 1996]. In response to

   the letter you submitted Form 12153, received April 2, 2001,

   requesting a Collection Due Process Hearing. Your request was

   forwarded to this Appeals Office.

   Since you did not respond to the Appeals Officer's request for

   information nor attend the scheduled conference on October 9,

   2001, we will return you [sic] case to the Collection function

   for collection appropriate action.

An attachment to the notice of determination stated in pertinent part:

   Applicable Law and Administrative Procedures

  IRC section 6631(d) requires that the IRS notify a taxpayer at

   least 30 days before the day of levy. Notice CP 523 was mailed

   to you via certified mail.

  IRC section 6630(a) states that no levy may be made unless the

   IRS notifies a taxpayer of the opportunity for a hearing with

   the IRS Office of Appeals. Notice CP 523 "Notice of Intent

   to Levy" was mailed to you via certified mail. You made a

   timely request for a hearing.

  IRC section 6330(c) allows you to raise any relevant issue

   relating to the unpaid tax or the proposed levy at the hearing.

   Relevant Issues Raised by the Taxpayer

   You did not attend the Scheduled hearing and have not responded

   to any contact by the Appeals Office.

   Balancing Collection and Intrusiveness

   The outstanding tax liabilities for 1990, 1991, 1992 and 1993

   are based on the returns you filed for those years. The 1996

   liability is based on information the IRS had on file. * * *

   Since you have not responded to any contact by the Appeals

   Office, your case will be returned to the Collection function

   for appropriate action.

Respondent acknowledges in respondent's response to petitioner's motion: "The February 5, 2002, Notice of Determination did not contain all the statements required by Treas. Reg. section 301.6330-1(e)(3) Q&A-E8 . For this reason, Appeals sent to petitioner the Supplemental Notice dated May 1, 2003."

The "Supplemental Notice dated May 1, 2003" referred to in respondent's response to petitioner's motion is a supplemental notice of determination concerning collection actions(s) under section 6320 and/or 6330 (supplemental notice of determination), which the Appeals Office mailed to petitioner on May 1, 2003, after petitioner filed the petition in this case. That supplemental notice, which pertained to petitioner's taxable years 1990, 1991, 1992, 1993, and 1996, stated in pertinent part:

   Summary of Determination

   The Internal Revenue Service mailed a Letter 1058, Final

   Notice - Notice Of Intent To Levy And Notice Of Your Right To A

   Hearing, on March 7, 2001 concerning the unpaid Federal

   income tax (Form 1040) for the periods ending noted above

   [taxable years 1990, 1991, 1992, 1993, and 1996]. In response to

   the letter you submitted Form 12153, received April 2, 2001,

   requesting a Collection Due Process Hearing. Your request was

   forwarded to this Appeals Office.

   Since you did not respond to theAppeals Officer's request for

   information nor attend the scheduled conference on October 9,

   2001, this office issued a Notice of Determination. We are

   returning your case to the IRS Area Counsel's office for trial

   preparation.

An attachment to the supplemental notice of determination stated in pertinent part:

   Legal and Procedural Requirements

   The Appeals Officer verified that the applicable laws and

   administrative procedures have been met. IRC Sec. 6321 provides

   a statutory lien when a taxpayer neglects or refuses to pay a

   tax liability after notice and demand. Transcripts of the

   taxpayer's accounts show the Service Center issued notice and

   demand as follows:

Year	Date
1990	September 21, 1992
1991	July 19, 1993
1992	August 1, 1994
1993	August 1, 1994
1996	November 9, 1998

   The obligations remain unpaid; the transcripts indicate that

   assessments were made on the date the notices were issued.

           *   *   *   *   *   *   *

   This Appeals Officer has had no prior involvement with respect

   to these liabilities * * *.

   The outstanding liabilities for 1990-1993 are based on returns

   you filed for those years. The 1996 liability is based on a

   NOTICE OF DEFICIENCY. * * * Review of your file shows the

   Internal Revenue Service issued the NOTICE OF DEFICIENCY on June

   5, 1998 for the 1996 taxable year and you did not appeal the

   notice.

   Validity of the Assessment

   The assessments are all valid according to the Appeals Officer's

   review of the transcripts of account.

           *   *   *   *   *   *   *

   Balancing Efficient Collection and Intrusiveness

  IRC Sec. 6330 requires that the Appeals Officer consider whether

   any collection action balance [sic] the need for efficient tax

   collection with the legitimate concern that any collection

   action be no more intrusive than necessary. You have not

   provided an acceptable payment alternative to the proposed levy

   action that would satisfy the underpayments. Therefore, it is

   determined that the proposed levy action balances the

   Government's need for effective tax collection with your

   legitimate concerns of intrusiveness.

             Discussion

In support of petitioner's motion, petitioner argues:

     On its face, the * * * [notice of determination] is

   invalid: it fails to comply with a notice's specific content

   requirements as set forth in Treasury Regulation section 301.6330-

   1(e)(3)(Q&A-E8)(i); it fails to comply with a notice's general

   content requirements as set forth in I.R.C. section 6330(c)(3). By

   issuing the * * * [supplemental notice of determination] to



   Petitioner, Respondent has affirmed that the * * * [notice of



   determination] is invalid.

     The Court's jurisdiction under I.R.C. section 6330(d)(1)

   depends upon the issuance of a valid Notice of Determination.

  Goza v. Commissioner, 114 T.C. 176">114 T.C. 176, 182 (2000). Yet no

   valid Notice of Determination has been issued in this case.

   Therefore, the Court should dismiss this case for lack of

   jurisdiction. [Reproduced literally.]

In petitioner's memorandum, petitioner elaborates on the foregoing arguments as follows:

     The * * * [notice of determination] issued in this case,

   inter alia, neglects to set forth Appeals' findings and

   decisions; does not resolve the issue raised by Petitioner in

   his Form 12153, Request for a Collection Due Process hearing;

   and fails to state whether the IRS met the requirements of any

   applicable law or administrative procedure. I.R.C.

  section 6330(c)(3). Treasury Regulation section 301.6330-1(e)(3)(Q&A-

   E8)(i). [Reproduced literally.]

The Court has jurisdiction to review the determination made under section 6330(c)(3) by the Appeals Office of the Internal Revenue Service upon the timely filing of a petition. Sec. 6330(d)(1)(A). The Court has held that a "written notice that embodies a determination to proceed with the collection of the taxes in issue" is a determination for purposes of the Court's jurisdiction under section 6330(d)(1)(A). Lunsford v. Commissioner, 117 T.C. 159">117 T.C. 159, 164 (2001).

The notice of determination in the instant case stated:

   Since you did not respond to the Appeals Officer's request for

   information nor attend the scheduled conference on October 9,

   2001, we will return you [sic] case to the Collection function

   for collection appropriate action.

We hold that the notice of determination embodies a determination to proceed with the collection of petitioner's tax liability for each of his taxable years 1990, 1991, 1992, 1993, and 1996. We further hold that we have jurisdiction to review that determination in the instant case. ^{*215 We have considered all of the contentions and arguments of petitioner that are not discussed herein, and we find them to be without merit and/or irrelevant.}

To reflect the foregoing,

An order denying petitioner's motion will be issued.

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Footnotes

• 1. Petitioner filed a memorandum (petitioner's memorandum) in support of his motion to dismiss for lack of jurisdiction. (We shall refer collectively to that motion and that memorandum as petitioner's motion.)↩

• 2. Respondent's acknowledgement in respondent's response to petitioner's motion that the notice of determination "did not contain all the statements required by Treas. Reg. section 301.6330-1(e)(3) Q&A-E8↩" does not affect our jurisdiction to review the determination in that notice to proceed with the collection of petitioner's tax liability for each of his taxable years 1990, 1991, 1992, 1993, and 1996.