McCune v. Commissioner , 115 T.C. 114 ( 2000 )


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  • DAVID C. MCCUNE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
    McCune v. Commissioner
    No. 2837-00L
    United States Tax Court
    August 8, 2000, Filed

    *50 An order will be entered granting respondent's Motion to Dismiss for Lack of Jurisdiction.

    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.
    Cohen, Mary Ann

    COHEN

    *115 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.

    *51 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, 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*52 determination. Respondent moved the District Court to dismiss for lack of jurisdiction, citing untimeliness and lack of *116 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*53 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.

    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, 2000 U.S. Tax Ct. LEXIS 19">2000 U.S. Tax Ct. LEXIS 19, 114 T.C. 176">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*54 --

            (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.

    *117 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 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*55 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*56 court and, in any event, the petition was untimely in this Court because not filed within the 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">33 T.C. 868, 869 (1960); Hodges v. Commissioner, T.C. Memo 1987-340">T.C. Memo 1987-340. A fortiori, they cannot be extended by petitioner's unilateral *118 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. *57 A subsequent untimely filing in the correct court clearly must be dismissed.

    To reflect the foregoing,

    An order will be entered granting respondent's Motion to Dismiss for Lack of Jurisdiction.