Pickell v. Comm'r

T.C. Memo. 2008-60
UNITED STATES TAX COURT
DAN PICKELL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14400-07. Filed March 11, 2008.
Dan Pickell, pro se.
Kaelyn Romey, for respondent.
MEMORANDUM OPINION
HAINES, Judge: This case is before the Court on
respondent’s motion to dismiss for lack of jurisdiction under
Rule 53 and petitioner’s motion to restrain collection under Rule
55.1 Respondent moves to dismiss on the ground that no notice of
1
Unless otherwise indicated, section references are to the
(continued...)
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determination was issued to petitioner for the years at issue.
Petitioner contends that no final notice of intent to levy was
sent to him, and therefore respondent’s levy is improper.
Background
At the time the petition was filed, petitioner resided in
California.
On March 13, 2006, respondent sent petitioner by certified
mail a Final Notice-Notice of Intent to Levy and Notice of Your
Right to a Hearing for the years 2000 through 2003. The notice
of intent to levy was returned to respondent marked
refused/unclaimed on April 17, 2006. On February 2, 2007,
respondent sent petitioner by regular mail a Warning of Intent to
Levy. On May 8, 2007, respondent levied upon petitioner’s
accounts.
On June 25, 2007, petitioner submitted his petition, and the
Court filed his motion to restrain collection. Respondent
objected to petitioner’s motion on the ground that the Court
lacked jurisdiction. On August 13, 2007, the Court filed
respondent’s motion to dismiss for lack of jurisdiction. A
hearing on the motions was held on October 15, 2007, in San
Francisco, California.
1
(...continued)
Internal Revenue Code as amended. Rule references are to the Tax
Court Rules of Practice and Procedure. Amounts are rounded to
the nearest dollar.
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Discussion
The Tax Court is a court of limited jurisdiction, and we may
exercise that jurisdiction only to the extent authorized by
Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The
Court’s jurisdiction under sections 6320 and 6330 depends upon
the issuance of a valid notice of determination and the filing of
a timely petition for review. See Orum v. Commissioner, 123 T.C.
1 (2004), affd. 412 F.3d 819 (7th Cir. 2005); Sarrell v.
Commissioner, 117 T.C. 122, 125 (2001); Moorhous v. Commissioner,
116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. 492,
498 (2000); see also Rule 330(b). Thus, in the absence of a
notice of determination, this Court lacks jurisdiction.
Respondent did not issue a notice of determination in respect of
petitioner’s outstanding tax liabilities for 2000 through 2003.
A necessary predicate for the issuance of a notice of
determination is the issuance of a final notice of intent to levy
sent to the taxpayer at the taxpayer’s last known address. See
sec. 6330(a)(2)(C). Thus, while the Court does not have
jurisdiction to hear petitioner’s case, we will decide the proper
basis for dismissal. See Kennedy v. Commissioner, 116 T.C. 255,
263 (2001); Kennedy v. Commissioner, T.C. Memo. 2008-33; Buffano
v. Commissioner, T.C. Memo. 2007-32.
Respondent argues that the Court lacks jurisdiction because
a notice of determination under section 6330 was not issued to
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petitioner; dismissal on this ground would allow respondent to
levy upon petitioner’s property to satisfy his outstanding
Federal tax liabilities. On the other hand, petitioner argues
that he never received a valid final notice of intent to levy;
dismissal on that ground would invalidate the notice of levy.
See Kennedy v. Commissioner, 116 T.C. 261; Kennedy v.
Commissioner, T.C. Memo. 2008-33; Buffano v. Commissioner, supra.
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 before 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. See sec. 6330; Davis v. Commissioner, 115
T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179
(2000). The notice of intent to levy 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. Secs. 6330(a)(2), 6331(d)(2); secs. 301.6330-1(a)(1),
301.6331-2(a)(1), Proced. & Admin. Regs.
“There is a strong presumption in the law that a properly
addressed letter will be delivered, or offered for delivery, to
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the addressee.” Zenco Engg. Corp. v. Commissioner, 75 T.C. 318,
323 (1980), affd. without published opinion 673 F.2d 1332 (7th
Cir. 1981). Further, it is clear that in general, and in the
absence of evidence to the contrary, compliance with certified
mail procedures raises a presumption of official regularity in
delivery and receipt with respect to notices sent by the
Commissioner. See United States v. Zolla, 724 F.2d 808, 810 (9th
Cir. 1984); United States v. Ahrens, 530 F.2d 781, 784-785 (8th
Cir. 1976); Clough v. Commissioner, 119 T.C. 183, 187-188 (2002).
Respondent’s records show that petitioner was sent a final
notice of intent to levy by certified mail to an address that
petitioner admits has been his address for 10 years. Petitioner
claims that he did not know of the attempted delivery, but he has
offered no proof to support his claim. Petitioner argues that
his situation is akin to that of Buffano v. Commissioner, supra,
where the Court dismissed the case on the ground that the
taxpayer was not issued a valid collection notice because the
Commissioner did not send the collection notice to the taxpayer’s
last known address. See also Kennedy v. Commissioner, T.C. Memo.
2008-33. In this case, the notice of intent to levy was sent to
petitioner’s last known address.
Therefore, the Court finds that respondent issued petitioner
a valid notice of intent to levy, but petitioner did not receive
it either because of his deliberate refusal to accept the letter
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or his failure for other reason to claim his mail. Because
petitioner failed to request a hearing under section 6330,
respondent did not issue a notice of determination, and we are
without jurisdiction to hear this claim under section 6330(d).
Accordingly, we will grant respondent’s motion to dismiss for
lack of jurisdiction and deny petitioner’s motion to restrain
collection.
To reflect the foregoing,
An appropriate order and order
of dismissal for lack of
jurisdiction will be entered.