Don Weber II v. Commissioner , 122 T.C. No. 12 ( 2004 )

122 T.C. No. 12UNITED STATES TAX COURT
DON WEBER II, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15169-03L. Filed March 22, 2004.
On Dec. 19, 2002, R mailed to P two notices of
determination concerning collection action. R issued
the first notice with respect to P’s liability for
unpaid income taxes; R issued the second notice with
respect to P’s liability for an unpaid civil penalty
under sec. 6682, I.R.C. R sent both notices to P by
certified mail addressed to him at his last known
address. The first notice was returned to R by the
U.S. Postal Service marked “unclaimed”. By letter
dated Aug. 4, 2003, R’s settlement officer sent P
courtesy copies of the notices of determination. On
Sept. 4, 2003, P filed a petition for lien or levy
action under sec. 6330(d), I.R.C. Thereafter, R filed
a motion to dismiss P’s petition for lack of
jurisdiction on the ground that it was not timely
filed. P opposes the granting of R’s motion,
contending that he did not receive either of the
notices of determination until August 2003, at which
time he promptly filed his petition with the Court.
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Held: The income tax notice of determination that
was sent by certified mail to P at P’s last known
address was sufficient, notwithstanding the fact that P
did not receive such notice.
Held, further, the courtesy copy of the income tax
notice of determination that R’s officer sent P in
August 2003 was not a notice of determination under
sec. 6320, I.R.C., or sec. 6330, I.R.C., nor did the
sending of that copy serve to revive the statutory
filing period.
Held, further, because P did not timely file his
petition in respect of the income tax notice of
determination, this Court lacks jurisdiction to review
R’s determination to proceed with collection of P’s
liability for unpaid income taxes.
Held, further, this Court lacks jurisdiction to
review R’s determination to proceed with collection of
P’s liability for the unpaid civil penalty under sec.
6682, I.R.C., because it lacks jurisdiction over the
underlying liability.
Don Weber II, pro se.
James E. Cannon and Julie Jebe, for respondent.
OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(4), and Rules 180, 181, and 182.1 The Court agrees with
and adopts the opinion of the Special Trial Judge, which is set
forth below.
1
All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the
Internal Revenue Code, as amended.
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OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: This collection review case is
before the Court on respondent’s motion to dismiss for lack of
jurisdiction. Respondent contends that the Court lacks
jurisdiction on the ground the petition for lien or levy action
was not timely filed. As discussed in detail below, we shall
dismiss the petition for lack of jurisdiction.
Background
The record reflects and/or the parties do not dispute the
following facts:
On December 19, 2002, respondent mailed to petitioner a
Notice Of Determination Concerning Collection Action(s) informing
petitioner that respondent would proceed with the collection of
petitioner’s unpaid Federal income taxes for 1992, 1993, 1994,
and 1995 (the income tax notice). On December 19, 2002,
respondent also mailed to petitioner a Notice Of Determination
Concerning Collection Action(s) informing petitioner that
respondent would proceed with the collection of petitioner’s
unpaid liability for a civil penalty imposed under section 6682
for the taxable period ending December 31, 1997 (the civil
penalty notice).2
2
Sec. 6682(a) generally provides that an individual shall
be liable for a civil penalty if such individual is found to have
made a false statement regarding the correct amount of income tax
withholding on wages and/or backup withholding.
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Respondent mailed the income tax notice and the civil
penalty notice to petitioner by certified mail addressed to him
at 3500 W. 95th St., No. 6638, Shawnee Msn., Kansas 66206-2052
(the Kansas address).3 On or about January 13, 2003, the
envelope bearing the income tax notice was returned to respondent
by the U.S. Postal Service marked “Unclaimed”.4 The envelope
included notations reflecting that the U.S. Postal Service
attempted to deliver the notice to petitioner on certain specific
dates.
On August 4, 2003, respondent mailed a letter to petitioner
at the Kansas address that stated in pertinent part as follows:
“Per our telephone conversation this morning, enclosed are copies
of the determination letters previously mailed to you in December
2002, when the letters were originally issued.”
On September 4, 2003, the Court received and filed a
petition for lien or levy action. No notice of determination was
attached to the petition, nor did the petition identify the
specific notice(s) in dispute. The petition arrived at the Court
in an envelope bearing a U.S. Postal Service postmark date of
3
Respondent proved the mailing of the notice of
determination through the introduction of a postmarked copy of a
certified mail list. Cf. Magazine v. Commissioner, 89 T.C. 321,
326-327 (1987) (holding that for purposes of sec. 6212, the
Commissioner must produce direct evidence to establish the fact
that a notice of deficiency was mailed).
4
The record does not reflect whether the civil penalty
notice was returned to respondent undelivered.
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August 27, 2003. In the petition, petitioner listed the Kansas
address as his current address.
Respondent filed a motion to dismiss for lack of
jurisdiction on the ground the petition was not filed within the
30-day period prescribed in section 6330(d) or section 7502.
Petitioner filed an objection to respondent’s motion,
asserting that he did not receive either of the notices in
question until August 2003, at which time he promptly filed a
petition with the Court. Petitioner also questioned why the
copies of the notices that he received in August 2003 were
undated.
Respondent filed a response to petitioner’s objection
asserting that the copies of the notices that were forwarded to
petitioner in August 2003 were merely courtesy copies.
Respondent further explained that the copies sent to petitioner
were undated because petitioner’s case file was not immediately
available and the copies in question were retrieved from
respondent’s computer files.
This matter was called for hearing at the Court’s motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and offered argument in support of respondent’s
motion to dismiss. Although there was no appearance by or on
behalf of petitioner at the hearing, petitioner did file with the
Court a written statement pursuant to Rule 50(c).
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Discussion
Sections 6320 (pertaining to Federal tax liens) and 6330
(pertaining to levies) establish procedures for administrative
and judicial review of certain collection actions. As an initial
matter, the Commissioner is required to provide a taxpayer with
written notice that a Federal tax lien has been filed and/or that
the Commissioner intends to levy; the Commissioner is also
required to explain to the taxpayer that such collection action
may be challenged on various grounds at an administrative
hearing. See Davis v. Commissioner, 115 T.C. 35, 37 (2000); Goza
v. Commissioner, 114 T.C. 176, 179 (2000). Sections 6320(a)(2)
and 6330(a)(2) provide that the written notice described above
shall be given in person, left at the person’s dwelling or usual
place of business, or sent by certified or registered mail to
such person’s last known address.
When the Appeals Office issues a Notice Of Determination
Concerning Collection Action(s) to a taxpayer following an
administrative hearing, section 6330(d)(1) provides that the
taxpayer has 30 days following the issuance of such notice to
file a petition for review with the Tax Court or, if the Tax
Court does not have jurisdiction over the underlying tax
liability, with a Federal District Court. See Offiler v.
Commissioner, 114 T.C. 492, 498 (2000). The procedure
established under section 6330(d)(1) is made applicable to a
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proceeding regarding a Federal tax lien by way of the cross-
reference contained in section 6320(c).
We have held that this Court’s jurisdiction under sections
6320 and 6330 depends on the issuance of a valid notice of
determination and the filing of a timely petition for review.
See Sarrell v. Commissioner, 117 T.C. 122, 125 (2001); Moorhous
v. Commissioner, 116 T.C. 263, 269 (2001); Offiler v.
Commissioner, supra at 498; see also Rule 330(b).5
Although section 6330(d) does not specify the means by which
the Commissioner is required to give notice of a determination
made under sections 6320 and 6330, we conclude that the method
that Congress specifically authorized for sending notices of
deficiency in section 6212(a) and (b) certainly should suffice.
Accordingly, we hold that a notice of determination issued
pursuant to sections 6320 and/or 6330 is sufficient if such
notice is sent by certified or registered mail to a taxpayer at
the taxpayer’s last known address. Cf. sec. 6212(b)(1), (3).6
5
Petitioner did not raise any challenge to the validity of
either of the notices of determination in question.
6
Sec. 6212(b)(1) and (3) provides in pertinent part as
follows:
SEC. 6212. NOTICE OF DEFICIENCY.
* * * * * * *
(b) Address for notice of deficiency.--
(1) Income and gift taxes and certain excise
taxes.–-* * * notice of a deficiency * * * if
mailed to the taxpayer at his last known address,
(continued...)
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It may be that such a notice of determination is also sufficient
if it is given in person or left at the taxpayer’s dwelling or
usual place of business. Cf. sec. 6330(a)(2). However, we need
not, and do not, decide this latter matter.
The Income Tax Notice
The notice of determination pertaining to petitioner’s
unpaid income tax liabilities was mailed by certified mail to the
same address that petitioner listed as his current address in the
petition for lien or levy action. Petitioner does not contend
that such notice was mailed to an incorrect address.
Consequently, we conclude that the income tax notice was mailed
to petitioner’s last known address, which is sufficient for
jurisdictional purposes. See, e.g., Sarrell v. Commissioner,
supra at 125.
Under the circumstances, the sole issue for decision with
regard to the income tax notice is whether the petition was
timely filed. The record reflects that the petition was not
filed within the 30-day period prescribed in section 6330(d)(1).
In particular, the record shows that respondent mailed the notice
6
(...continued)
shall be sufficient * * *.
* * * * * * *
(3)Estate tax.–-* * * notice of a
deficiency * * *, if addressed in the name of
the decedent or other person subject to
liability and mailed to his last known
address, shall be sufficient * * *.
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of determination to petitioner on December 19, 2002. Taking into
account an intervening weekend and Federal holiday, the 30-day
filing period expired on Tuesday, January 21, 2003. See sec.
7503. However, the petition in this case was not mailed to the
Court until August 27, 2003, and was received and filed on
September 4, 2003–-more than 8 months after the income tax notice
was mailed. It follows that the petition was not timely filed
and we are obliged to dismiss this case for lack of jurisdiction.
See McCune v. Commissioner, 115 T.C. 114 (2000).
Petitioner’s assertion that his petition should be
considered timely filed because he did not actually receive the
income tax notice until August 2003 is misplaced. Like a notice
of deficiency issued pursuant to section 6213(a), a notice of
determination made pursuant to sections 6320 and/or section 6330
serves as a person’s “ticket” to the Tax Court. Offiler v.
Commissioner, supra at 498; see Frieling v. Commissioner, 81 T.C.
42, 52 (1983). In accordance with longstanding principles
governing the validity of a notice of deficiency under section
6213(a), and consistent with our conclusion that the income tax
notice was sufficient because it was properly mailed to
petitioner’s last known address by certified mail on December 19,
2002, we hold that it is immaterial that petitioner did not
receive the notice of determination before the expiration of the
30-day filing period. See King v. Commissioner, 857 F.2d 676,
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679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Teel v.
Commissioner, 248 F.2d 749, 751 (10th Cir. 1957), affg. 27 T.C.
375 (1956); Yusko v. Commissioner, 89 T.C. 806, 810 (1987);
Frieling v. Commissioner, supra at 52.
We further hold that the courtesy copy of the income tax
notice that respondent sent to petitioner on August 4, 2003, was
not a notice of determination under section 6320 or 6330;
therefore, it could not serve to revive the 30-day filing period.
See Teel v. Commissioner, supra; Lerer v. Commissioner, 52 T.C.
358, 362-366 (1969); Powell v. Commissioner, T.C. Memo. 1998-108;
Schoenfeld v. Commissioner, T.C. Memo. 1993-303, n.2.
Finally, we do not have the authority to extend our
jurisdiction in this case notwithstanding the fact that
petitioner did not receive the notice of determination within the
30-day filing period. The Court’s jurisdiction is statutorily
prescribed under sections 6320 and 6330, and we may not extend
the 30-day period for filing a petition for lien or levy action.
Axe v. Commissioner, 58 T.C. 256, 259 (1972); see Lamont v.
Commissioner, T.C. Memo. 1993-469.
Consistent with the preceding discussion, we shall grant
respondent’s motion to dismiss, in that we lack jurisdiction to
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review the income tax notice on the ground the petition for lien
or levy action was not timely filed.
The Civil Penalty Notice
As previously mentioned, the Court’s jurisdiction under
sections 6320 and 6330 is limited to cases in which the
underlying tax liability is of a type over which the Court
normally has jurisdiction. Sec. 6330(d); Van Es v. Commissioner,
115 T.C. 324, 328-329 (2000) (case dismissed for lack of
jurisdiction on the ground the Court lacks jurisdiction to review
the frivolous return penalty imposed under section 6702); Moore
v. Commissioner, 114 T.C. 171, 175 (2000) (case dismissed for
lack of jurisdiction on the ground the Court lacks jurisdiction
to review the trust fund recovery penalty imposed under section
6672).
The record reflects that the civil penalty notice is based
on the assessment of a penalty against petitioner pursuant to
section 6682. It is well settled that this Court lacks
jurisdiction to redetermine such penalties. Sec. 6682(c);
Castillo v. Commissioner, 84 T.C. 405, 411 (1985); Fischer v.
Commissioner, T.C. Memo. 1994-586 n.3. Because we lack
jurisdiction over the tax liability underlying the civil penalty
notice, we are obliged to dismiss the matter for lack of
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jurisdiction on that ground. See Barnhill v. Commissioner, T.C.
Memo. 2002-116; cf. Lunsford v. Commissioner, 117 T.C. 159(2001).
To reflect the foregoing,
An order will be entered
dismissing this case for lack of
jurisdiction.