T.C. Memo. 2003-76

UNITED STATES TAX COURT

PAUL L. HICKEY AND NELLIDA F. HICKEY, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8662-02L. Filed March 14, 2003.

Karen Lynne Baker and Rollin G. Thorley, for respondent.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This matter is before the Court

on respondent’s Motion to Dismiss for Lack of Jurisdiction, as

supplemented. As explained in detail below, we shall grant

respondent’s motion in part and deny it in part.
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code, as amended, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

Background

On July 13, 2001, respondent issued to petitioners separate 

Notices of Determination Concerning Collections Action(s) Under

Section 6320 and/or 6330 with regard to their unpaid taxes for

1996 and 1997.1 On August 8, 2001, respondent issued to

petitioner Paul L. Hickey a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 with regard

to his unpaid tax for 1998.

On August 9, 2001, petitioners filed a Complaint with the

U.S. District Court for the District of Nevada (District Court)

challenging the notices of determination dated July 13, 2001. On

September 10, 2001, petitioners filed an Amendment To Original

Complaint with the District Court seeking to amend their

complaint to challenge the notice of determination dated August

8, 2001.

On September 12, 2001, the Government filed a motion to

dismiss the District Court action. On February 15, 2002, the

District Court entered a Judgment on its Order dismissing

petitioners’ Complaint for lack of subject matter jurisdiction. 

The District Court observed in its Order that petitioners would

have “thirty days in which to bring their claim in the Tax

Court.” 
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2 At the time that their petition was filed, petitioners

resided in Las Vegas, NV.

On March 1, 2002, petitioners filed with the District Court

a motion for reconsideration. On April 11, 2002, the District

Court entered an Order denying petitioners’ motion for

reconsideration.

On May 15, 2002, petitioners filed with this Court a

Petition for Lien or Levy Action challenging the notices of

determination dated July 13, 2001, and August 8, 2001.2 The

petition arrived at the Court in an envelope bearing a private

postage meter postmark dated May 7, 2002.

In response to the petition, respondent filed a Motion To

Dismiss For Lack Of Jurisdiction. Respondent asserted that the

Court was without jurisdiction to review the notices of

determination dated July 13, 2001, because petitioners failed to

file their petition with the Court within 30 days of the District

Court’s Judgment and Order, entered February 15, 2002, dismissing

petitioners’ Complaint. Respondent also argued that the Court

lacked jurisdiction to review the notice of determination dated

August 8, 2001. Relying on McCune v. Commissioner, 115 T.C. 114

(2000), respondent asserted that petitioners’ Amendment to

Original Complaint, filed with the District Court on September

10, 2001, was not filed within 30 days of the notice of

determination dated August 8, 2001. See sec. 6330(d)(1). 
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Petitioners filed an Objection to respondent’s motion to dismiss.

This matter was called for hearing at the Court’s motions

session in Washington, D.C. Counsel for respondent appeared at

the hearing and was heard. In contrast, there was no appearance

by or on behalf of petitioners at the hearing, nor did

petitioners file with the Court a written statement under Rule

50(c), the provisions of which were noted by the Court in its

Order setting respondent’s motion for hearing.

During the hearing, counsel for respondent informed the

Court that respondent had reconsidered his position and concluded

that the petition was timely filed with regard to the notices of

determination dated July 13, 2001. In particular, respondent

asserted that because the petition was mailed to the Court on May

7, 2002, a date within 30 days of the District Court’s April 11,

2002, Order denying petitioners’ motion for reconsideration, the

petition was timely filed with regard to the notices of

determination dated July 13, 2001.

Following the hearing, respondent filed a Supplement to his

motion to dismiss. In the Supplement, respondent elaborated on

his position with regard to the notices of determination dated

July 13, 2001. However, respondent maintained his original

position that the petition was untimely with regard to the notice

of determination dated August 8, 2001.
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By Order dated January 8, 2003, the Court directed

petitioners, on or before January 29, 2003, to file a Response,

if any, to respondent’s Supplement. Petitioners did not respond

to the Court’s Order.

Discussion

Sections 6320 and 6330 generally provide that the

Commissioner cannot proceed with collection by lien or levy until

the taxpayer has been given notice of and the opportunity for an

administrative review of the proposed collection action (in the

form of an Appeals Office hearing) and, if dissatisfied, the

taxpayer may seek judicial review of the administrative

determination. See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

The 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 Moorhous v.

Commissioner, 116 T.C. 263, 269 (2001); Offiler v. Commissioner,

114 T.C. 492, 498 (2000); see also Rule 330(b). When the

Commissioner issues a determination letter to a taxpayer

following an administrative hearing, section 6330(d)(1) provides

that the taxpayer will have 30 days to file a petition for review

with the Tax Court or a Federal District Court, as appropriate. 

Offiler v. Commissioner, supra at 498.
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The flush language of section 6330(d)(1) provides: “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 McCune v. Commissioner,

supra, we held that we lacked jurisdiction under section 6330

inasmuch as the taxpayer failed to file his initial petition with

the District Court within 30 days of the notice of determination.

A. Jurisdiction With Respect to the Notices of

Determination Dated July 13, 2001

Although respondent now asserts that the Court has

jurisdiction to review the notices of determination dated July

13, 2001, jurisdiction cannot be conferred on the Court by

agreement of the parties. Dorn v. Commissioner, 119 T.C. 356

(2002). A jurisdictional issue can be raised by either party or

the Court sua sponte at any stage of the proceedings. Id. at

357; Smith v. Commissioner, 96 T.C. 10, 13-14 (1991).

The record shows that petitioners timely filed their

Complaint with the District Court on August 9, 2001; i.e., within

30 days of the notices of determination dated July 13, 2001. 

However, the question remains whether petitioners filed their

petition with this Court within 30 days of the District Court’s

“determination” that petitioners filed their appeal with the

wrong court as required under the flush language of section

6330(d)(1), quoted above. 
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3 Fed. R. Civ. P. 59(e) provides that a motion to alter or

amend a judgment must be filed no later than 10 days after entry

of the judgment. Fed. R. Civ. P. 6(a) provides: “When the

period of time prescribed or allowed is less than 11 days,

intermediate Saturdays, Sundays, and legal holidays shall be

excluded in the computation.” Excluding Saturdays (2), Sundays

(2), and the Federal holiday for Presidents’ Day, petitioners’

motion was filed with the District Court within 10 days of the

District Court’s Judgment and Order entered Feb. 15, 2002.

Although the District Court first entered a Judgment on its

Order dismissing petitioner’s complaint on February 15, 2002,

petitioners filed, on March 1, 2002, a “Motion for

Reconsideration” or, more appropriately, a motion to alter or

amend the judgment, under Fed. R. Civ. P. 59(e).3 The District

Court considered petitioners’ motion in due course and denied the

same by Order entered April 11, 2002. Petitioners then mailed

their petition to the Court on May 7, 2002, and the petition was

received and filed on May 15, 2002. Applying the timely

mailing/timely filing rule set forth in section 7502(a), it

follows that the petition was filed with the Court within 30 days

of the District Court’s April 11, 2002 Order.

Under the particular circumstances of this case, we agree

with respondent that the petition was timely filed under section

6330(d)(1) with regard to the notices of determination dated July

13, 2001. We conclude that the District Court’s Order entered

April 11, 2002, as opposed to the District Court’s Order entered

February 15, 2002, served as the determination that started the

30-day time period running within which petitioners were required
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to file their petition with this Court. 

Our holding on this issue is informed in large part by Fed.

R. App. P. 4(a)(4)(A)(iv), which provides that the time for

filing an appeal from a District Court judgment runs for all

parties from the entry of an Order disposing of a timely filed

motion under Fed. R. Civ. P. 59. In the absence of a specific

statutory provision defining the “determination” referred to in

section 6330(d)(1), it is appropriate in this case to treat the

District Court’s Order denying petitioners’ timely motion under

Fed. R. Civ. P. 59(e) as the operative determination.

B. Jurisdiction With Respect to the Notice of Determination

Dated August 8, 2001

Respondent argues that the Court lacks jurisdiction to

review the notice of determination issued to petitioner Paul L.

Hickey on August 8, 2001, on the ground that petitioners’

Amendment To Original Complaint, filed with the District Court on

September 10, 2001, was not filed within 30 days of the notice of

determination. We agree.

By virtue of section 7503, the 30-day filing period within

which petitioner Paul L. Hickey had to challenge the notice of

determination dated August 8, 2001, expired on Friday, September

7, 2001, a date that was not a legal holiday in the District of

Columbia. Thus, petitioners’ Amendment To Original Complaint,

which was filed with the District Court on Monday, September 10,
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4 The record in this case provides no basis to conclude

that petitioner Paul L. Hickey, a resident of Las Vegas, NV,

delivered his Amendment To Original Petition to the District

Court other than by hand.

2001, was not timely filed.4 Nor does petitioners’ Amendment To

Original Complaint relate back to their original Complaint, filed

August 9, 2001. Fed. R. Civ. P. 15(c)(2) provides that an

amendment of a pleading relates back to the date of the original

pleading when “the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or occurrence set

forth in the original pleading”. It is well settled that each

taxable year “is the origin of a new liability and of a separate

cause of action.” Commissioner v. Sunnen, 333 U.S. 591, 598

(1948); see O’Neil v. Commissioner, 66 T.C. 105, 107-108 (1976). 

Accordingly, petitioners’ Amendment To Original Complaint, which

challenged respondent’s determination to proceed with collection

of petitioner Paul L. Hickey’s taxes for 1998, does not relate

back to the original Complaint, which challenged respondent’s

determination to proceed with collection of petitioners’ taxes

for 1996 and 1997.

Consistent with the preceding discussion, and this Court’s

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

follows that we must dismiss this case for lack of jurisdiction

with regard to the notice of determination dated August 8, 2001. 
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To reflect the foregoing,

An Order will be issued

granting respondent’s Motion

to Dismiss for Lack of

Jurisdiction, as supplemented, in

part and denying such motion in

part.