David C. McCune v. Commissioner , 115 T.C. No. 7 ( 2000 )

115 T.C. No. 7UNITED STATES TAX COURT
DAVID C. MCCUNE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2837-00L. Filed August 8, 2000.
More than 30 days after receiving an adverse
Notice of Determination Concerning Collection Action(s)
Under Section 6320 and/or 6330, P sought judicial
review in a Federal District Court. The petition was
dismissed for lack of subject matter jurisdiction.
More than 30 days after the order of dismissal, P
sought review in this Court. Held: Because P failed
to file his initial petition with the District Court
within 30 days of the notice of adverse determination,
his Tax Court petition is dismissed for lack of
jurisdiction.
David C. McCune, pro se
Marty J. Dama, for respondent.
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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 Rockwall, Texas.
On January 27, 1999, a Final Notice - Notice of Intent to
Levy and Notice of Your Right to a Hearing (CDP notice) was
mailed to petitioner with respect to unpaid Federal income taxes,
interest, and penalties for 1992 through 1994. The CDP notice
explained petitioner’s right to a Collection Due Process hearing
(CDP hearing) and provided him with a copy of Form 12153, Request
for a Collection Due Process Hearing. Petitioner requested and
was granted a hearing. On July 29, 1999, the Internal Revenue
Service Office of Appeals (Appeals) issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330. In that notice, it was determined that the proposed
levy actions satisfied the requirements of sections 6631 and 6321
and the applicable administrative procedures. On August 10,
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1999, petitioner submitted a request for reconsideration of the
adverse determination, but the request was denied on September 8,
1999.
On October 18, 1999, petitioner filed a petition with the
U.S. District Court for the Northern District of Texas, seeking
judicial review of the adverse determination. Respondent moved
the District Court to dismiss for lack of jurisdiction, citing
untimeliness and lack of subject matter jurisdiction. The
District Court granted the motion to dismiss for lack of subject
matter jurisdiction in an order dated January 25 and entered
January 26, 2000. The Court stated:
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.
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On March 1, 2000, petitioner mailed a petition to the Tax
Court that was received and filed on March 6, 2000. The petition
seeks review of respondent’s July 29, 1999, determination.
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, 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 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.
In this case, petitioner challenged the CDP notice and
requested a CDP hearing. Appeals determined, on July 29, 1999,
that the CDP notice and proposed levy actions satisfied sections
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6631 and 6321 and the applicable administrative procedures. That
determination triggered the 30-day period within which petitioner
could seek judicial review. Section 301.6330-1T(f)(2), Temporary
Proced. & Admin. Regs., Fed. Reg. 3412 (Jan. 22, 1999), provides:
(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
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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, 33 T.C. 868, 869 (1960);
Hodges v. Commissioner, 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 July 29, 1999, notice of determination (or even
within 30 days of the denial of his request for reconsideration).
An untimely filing in an incorrect court could not extend the
time to file in the correct court. A subsequent untimely filing
in the correct court clearly must be dismissed.
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To reflect the foregoing,
An order will be entered
granting respondent’s Motion
to Dismiss for Lack of
Jurisdiction.