Joseph W. Dorn v. Commissioner

119 T.C. No. 22UNITED STATES TAX COURT
JOSEPH W. DORN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6240-00L. Filed December 30, 2002.
To collect petitioner’s (P) unpaid income tax
liabilities for 1987-89, respondent (R) issued a notice
of levy to a fund in which petitioner maintained
accounts and issued to P a notice of jeopardy levy and
right to appeal. See sec. 6330(f), I.R.C. P requested
and R held a hearing under sec. 6330(b), I.R.C. After
the hearing, R determined that imposition of a jeopardy
levy was appropriate. P filed a petition under sec.
6330(d), I.R.C., seeking judicial review of that
determination.
Held: The Tax Court has jurisdiction under sec.
6330(d), I.R.C., to review R’s determination that R’s
use of a jeopardy levy was appropriate.
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David M. Berman and Paul F. Berman, for petitioner.
Timothy R. Maher, for respondent.
COLVIN, Judge: Petitioner filed the petition in this case
under section 6330(d) seeking our review of respondent’s
determination that use of a jeopardy levy was appropriate. The
sole issue for decision in this Opinion is whether the Tax Court
has jurisdiction to review respondent’s determination that a
jeopardy levy was appropriate. We hold that we do.
Section references are to the Internal Revenue Code as
amended.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
Petitioner resided in Naples, Florida, when he filed his
petition.
Petitioner maintained various accounts in a fund known as
Evergreen Funds (not otherwise identified in the record). On
November 29, 1999, respondent issued a notice of levy to
Evergreen Funds in an effort to collect petitioner’s unpaid
income tax liabilities for 1987-89. Also on that day, respondent
issued a notice of jeopardy levy and right of appeal to
petitioner relating to those tax liabilities.
Petitioner filed a timely Form 12153, Request for a
Collection Due Process Hearing. On May 1, 2000, respondent’s
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Appeals officer conducted a hearing in petitioner’s case for tax
years 1987-89. On May 22, 2000, respondent sent petitioner a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330, in which respondent determined that the
jeopardy levy with respect to petitioner’s tax years 1987-89 was
appropriate.
OPINION
A. Background
Petitioner filed a petition seeking our review of
respondent’s determination that use of a jeopardy levy was
appropriate. The issue presented is whether our jurisdiction
under section 6330(d) to review section 6330 determinations
includes jurisdiction to review jeopardy levy determinations
under section 6330(f). We hold that it does.
The parties agreed that the Court had jurisdiction to review
respondent’s determination that the jeopardy levy was
appropriate. However, jurisdiction cannot be conferred upon the
Court by agreement, Neely v. Commissioner, 115 T.C. 287, 291
(2000); Naftel v. Commissioner, 85 T.C. 527, 530 (1985), and the
Court, sua sponte, can question jurisdiction at any time, Raymond
v. Commissioner, 119 T.C. 191, 193 (2002); Neely v. Commissioner,
supra at 290; Romann v. Commissioner, 111 T.C. 273, 280 (1998).
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Section 6330 was enacted in 1998 to permit taxpayers to
obtain administrative and judicial review of collection actions
by the Commissioner. Internal Revenue Service Restructuring and
Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3401, 112
Stat. 685, 746; H. Conf. Rept. 105-599, at 265-266 (1998), 1998-3
C.B. 755, 1019-1020. Section 6330(a)(1) requires the Secretary
to notify the taxpayer of the right to a hearing before the
Secretary levies on any property. Section 6330(a)(2) provides
specific rules for the required notice. Section 6330(b) contains
rules relating to the hearing, and section 6330(c) lists issues
which taxpayers may raise at a section 6330(b) hearing.
B. Judicial Review of Section 6330 Determinations
Section 6330(d) provides for judicial review of
determinations under section 6330. Section 6330(d)(1) provides
that a taxpayer “may, within 30 days of a determination under
this section, appeal such determination” to the Tax Court.
Subsection (f) is contained in section 6330; thus, the phrase
“this section” in section 6330(d)(1) applies to subsection (f).
See Butler v. Commissioner, 114 T.C. 276, 290 (2000) (the words
“‘the Tax Court shall have jurisdiction * * * to determine the
appropriate relief * * * under this section’” in section
6015(e)(1)(A) include jurisdiction to review the Commissioner’s
decision to deny the taxpayer relief under section 6015(f));
Woodral v. Commissioner, 112 T.C. 19, 22-23 (1999) (the words in
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section 6404(g) providing our jurisdiction to review
determinations “‘under this section’” apply to determinations
under section 6404(a)).
C. Jeopardy Levies Under Section 6330(f)
Section 6330(f) provides that “this section” shall not apply
in the case of a jeopardy levy. We next consider whether that
language restricts the grant of jurisdiction under section
6330(d) to review determinations under section 6330.
Respondent made a jeopardy levy under section 6330(f) before
providing a hearing to petitioner under section 6330(b).
Section 6330(f) provides:
SEC. 6330(f). Jeopardy and State Refund
Collection. If--
(1) the Secretary has made a finding
under the last sentence of section 6331(a)
that the collection of tax is in jeopardy; or
(2) the Secretary has served a levy on
a State to collect a Federal tax liability
from a State tax refund,
this section shall not apply, except that the taxpayer
shall be given the opportunity for the hearing
described in this section within a reasonable period of
time after the levy.
Under the flush language in section 6330(f), the levy may
precede the hearing provided by section 6330(b). The legislative
history shows that the flush language was not intended to
restrict the grant of jurisdiction provided by section 6330(d) to
review the Commissioner’s determination under section 6330(f).
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The conference report accompanying enactment of the RRA 1998,
which created section 6330, stated in pertinent part as follows:
Judicial review
The conferees expect the appeals officer will prepare a
written determination addressing the issues presented
by the taxpayer and considered at the hearing. The
determination of the appeals officer may be appealed to
the Tax Court * * *
* * * * * * *
An exception to the general rule prohibiting levies
during the 30-day period would apply in the case of
state tax offset procedures, and in the case of
jeopardy or termination assessments.
H. Conf. Rept. 105-599, at 266 (1998), 1998-3 C.B. 747, 1020.
Thus, Congress intended to permit taxpayers to appeal
determinations made under section 6330 to this Court. Id.Congress also intended the section 6330(a) requirement that a
taxpayer be given prelevy notice not to apply to a jeopardy levy
or levy of a State tax refund. Id. There is no suggestion in
the conference report that a taxpayer’s right to judicial review
under section 6330(d) is not recognized in the case of a jeopardy
levy. Id. at 265-266, 1998-3 C.B. at 1019-1020.
D. Conclusion
Courts must interpret a statute to “‘fit, if possible, all
parts into an harmonious whole’”. FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting FTC v. Mandel
Bros., Inc., 359 U.S. 385, 389 (1959)). We do not believe the
flush language of section 6330(f) conflicts with section 6330(d)
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or bars judicial review of a jeopardy levy determination; that
interpretation of the flush language would be at odds with the
overall purpose of section 6330 of providing procedural
protections in collection disputes. Thus, we conclude that we
have jurisdiction under section 6330(d) to review respondent’s
determination under section 6330(f) that use of a jeopardy levy
was appropriate.
To reflect the foregoing,
An appropriate order
will be issued.