Offiler v. Comm'r of Internal Revenue

• Decision Date: 19 June 2000
• Docket Number: No. 16389–99.,16389–99.
• Citation: 114 T.C. No. 30,114 T.C. 492
• Parties: Lucielle J. OFFILER, A.K.A. Lucille Offiler, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

114 T.C. 492

114 T.C. No. 30

Lucielle J. OFFILER, A.K.A. Lucille Offiler, Petitioner

v.COMMISSIONER OF INTERNAL REVENUE, Respondent

No. 16389–99.

United States Tax Court.

June 19, 2000.

Taxpayer petitioned for review of IRS' determination to proceed with collection. IRS moved to dismiss for lack of jurisdiction on ground that taxpayer did not make timely request for collection due process hearing by Office of Appeals. The Tax Court, Ruwe, J., held that without issuance of notice of determination Court had no jurisdiction.

Motion granted.

Lucielle J. Offiler, Petitioner, pro se.

Monica J. Miller, for respondent.

OPINION

RUWE, J.

On Feb. 1, 1999, R mailed to P a Final Notice–Notice of Intent to Levy and Notice of Your Right to a Hearing, as required by sec. 6330, I.R.C. The notice pertained to P's unpaid income tax liabilities for 1994 and 1995. Sec. 6330(a), I.R.C., requires only one such notice for the tax period for which R is attempting to collect tax. Under sec. 6330, I.R.C., P had 30 days in which to request a hearing before the IRS Office of Appeals. P did not request a hearing within 30 days of Feb. 1, 1999. Had a timely request for hearing been made, sec. 6330(c), I.R.C., provides for a hearing and “determination by Appeals regarding the propriety of the proposed levy. Sec. 6330(d), I.R.C. permits an appeal of such a determination to this Court within 30 days of the date of such determination. Because P failed to make a timely request for hearing pursuant to sec. 6330, I.R.C., R was not required to, and did not, make a “determination” within the meaning of sec. 6330, I.R.C.

Held: Pursuant to sec. 6330(d), I.R.C., our jurisdiction is dependent upon the issuance of a determination and the filing of a petition within 30 days of the issuance of such determination. Because R did not issue a determination to P, we must dismiss this case for lack of jurisdiction.

The petition in this case is based on respondent's alleged failure to hold a meaningful collection due process hearing as required by section 6330. ¹ Respondent moved to dismiss for lack of jurisdiction on the grounds that petitioner did not make a timely request for a collection due process hearing by the Internal Revenue Service, Office of Appeals (Appeals), and therefore respondent was not required to, and did not, hold a hearing or issue a notice of determination which is a prerequisite to our jurisdiction under section 6330(d). At the time the petition was filed, petitioner resided in Kissimmee, Florida.

Background

Petitioner seeks relief with respect to her 1993, 1994, and 1995 tax years. On October 13, 1995, a notice of deficiency for 1993 was sent to petitioner's last known address. The 90–day period for timely filing a petition with this Court regarding this notice of deficiency expired on January 11, 1996. A notice of deficiency for 1994 and 1995 was mailed to petitioner's last known address on July 25, 1997. The 90–day period for timely filing a petition with this Court regarding this notice of deficiency expired on October 23, 1997. Petitioner received these notices of deficiency but did not file timely petitions with regard to either notice of deficiency. As a result, respondent assessed the deficiencies determined in those notices.²

On February 1, 1999, a Final Notice–Notice of Intent to Levy and Notice of Your Right to a Hearing was sent to petitioner regarding unpaid income taxes for 1994 and 1995. The notice did not pertain to petitioner's 1993 income tax, and petitioner has no unpaid tax with respect to 1993. The notice contained the following pertinent information:

FINAL NOTICE NOTICE OF INTENT TO LEVY AND NOTICE OF YOUR RIGHT TO A HEARING

PLEASE RESPOND IMMEDIATELY

Your federal tax is still not paid. We previously asked you to pay this, but we still haven't received your payment. This letter is your notice of our intent to levy under Internal Revenue Code (IRC) Section 6331 and your right to receive Appeals consideration under IRC Section 6330.

We may file a Notice of Federal Tax Lien at any time to protect the government's interest. A lien is a public notice to your creditors that the government has a right to your current assets, including any assets you acquire after we file the lien.

If you don't pay the amount you owe, make alternative arrangements to pay, or request Appeals consideration within 30 days from the date of this letter, we may take your property, or rights to property, such as real estate, automobiles, business assets, bank accounts, wages, commissions, and other income. We've enclosed Publication 594 with more information, Publication 1660 explaining your right to appeal, and Form 12150 to request a Collection Due Process Hearing with Appeals.

Petitioner did not request a collection due process hearing with Appeals within 30 days of the issuance of the above notice. Respondent thereafter initiated enforced collection by way of levy.

In addition to the notice regarding a taxpayer's right to a collection due process hearing pursuant to section 6330, respondent also provides Form 9423, Collection Appeal Request, for taxpayers to make requests for Appeals review of collection action under respondent's Collection Appeals Program (CAP). CAP is an administrative review program not required by statute. See 5 Administration, Internal Revenue Manual (CCH), sec. 9.4, at 15,261. On June 3, 1999, petitioner sent a Collection Appeal Request, Form 9423, to respondent regarding her income tax liabilities for 1993, 1994, and 1995. In an attachment to the form requesting a “CAP hearing”, petitioner states that she accepts the offer of a “Collection Due Process Hearing”. The only offer of a collection due process hearing by respondent was contained in the notice that respondent mailed to petitioner on February 1, 1999, regarding her unpaid 1994 and 1995 income tax liabilities.

In response to petitioner's Collection Appeals Request of June 3, 1999, respondent sent a letter to petitioner dated September 30, 1999, which denied the request. The denial of the request pertained only to amounts due with respect to petitioner's income tax liabilities for 1994 and 1995. (As previously mentioned, there is no unpaid liability for 1993.) This letter was not, and did not purport to be, a notice of determination pursuant to section 6330. The petition that gives rise to this case was filed on October 29, 1999.

Discussion

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 levy upon property belonging to the taxpayer. In the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub.L. 105–206, sec. 3401, 112 Stat. 685, 746, Congress enacted new sections 6320 (pertaining to liens) ³ and 6330 (pertaining to levies) to provide what have been described as “due process” protections for taxpayers in tax collection matters.⁴ Section 6330 generally provides that the Commissioner 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 an Appeals Office due process hearing) and if dissatisfied, with judicial review of the administrative determination. In pertinent part, section 6330 provides:

SEC. 6630(a) Requirement of Notice Before Levy.—

(1) In general.—No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made. Such notice shall be required only once for the taxable period to which the unpaid tax specified in paragraph (3)(A) relates.

(2) Time and method for notice.—The notice required under paragraph (1) shall be—

(A) given in person;

(B) left at the dwelling or usual place of business of such person; or

(C) sent by certified or registered mail, return receipt requested, to such person's last known address.

not less than 30 days before the day of the first levy with respect to the amount of the unpaid tax for the taxable period.

(3) Information included with notice.—The notice required under paragraph (1) shall include in simple and nontechnical terms—

(A) the amount of unpaid tax;

(B) the right of the person to request a hearing during the 30–day period under paragraph (2); and

(C) the proposed action by the Secretary and the rights of the person with respect to such action, including a brief statement which sets forth—

(i) the provisions of this title relating to levy and sale of property;

(ii) the procedures applicable to the levy and sale of property under this title;

(iii) the administrative appeals available to the taxpayer with respect to such levy and sale and the procedures relating to such appeals;

(iv) the alternatives available to taxpayers which could prevent levy on property (including installment agreements under section 6159); and

(v) the provisions of this title and procedures relating to redemption of property and release of liens on property.

(b) Right to Fair Hearing.—

(1) In general.— If the person requests a hearing under subsection (a)(3)(B), such hearing shall be held by the Internal Revenue Service Office of Appeals.

(2) One hearing per period.—A person shall be entitled to only one hearing under this section with respect to the taxable period to which the unpaid tax specified in subsection (a)(3)(A) relates.

(3) Impartial officer.—The hearing under this subsection shall be conducted by an officer or employee who has had no prior involvement with respect to the unpaid tax specified in subsection (a)(3)(A) before the first hearing under this section or section 6320. A taxpayer may waive the requirement of this paragraph.

[Emphasis added.]

Section 6330(c) specifies the matters to be considered at the hearing and in the determination by the Appeals...