116 T.C. No. 19

UNITED STATES TAX COURT

JAMES R. KENNEDY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9544-00L. Filed April 23, 2001.

On Sept. 10, 1999, R mailed to P a notice required

by sec. 6320(a), I.R.C., concerning P’s unpaid tax

liabilities for the years 1984 through 1988. R

concedes that such notice was not mailed to P at his

last known address. On Oct. 25, 1999, R mailed to P a

final notice of intent to levy concerning P’s unpaid

tax liabilities for the years 1984 through 1988. 

Although the notice of intent to levy was mailed to P

at his last known address, P failed to file a request

for an administrative hearing with the Internal Revenue

Service Office of Appeals (Appeals Office) within the

30-day period prescribed in sec. 6330, I.R.C.

Despite P’s failure to file a timely request for

an Appeals Office hearing, R granted P a so-called

equivalent hearing. On Aug. 17, 2000, R issued a

“decision letter” to P stating that R would proceed

with collection by way of levy. On Sept. 11, 2000, P

filed a petition for review with the Court.
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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.

Held: insofar as the petition filed herein

purports to be a petition for review of a notice of the

filing of a notice of lien pursuant to sec. 6320,

I.R.C., the Court lacks jurisdiction on the ground that

R did not make a determination pursuant to that section

because R failed to send the written notice prescribed

by sec. 6320(a), I.R.C., to P at his last known

address.

Held, further, insofar as the petition filed

herein purports to be a petition for review of a notice

of intent to levy pursuant to sec. 6330(d), I.R.C., the

Court lacks jurisdiction on the ground that R did not

make a determination pursuant to sec. 6330, I.R.C.,

because P failed to file a timely request for an

Appeals Office hearing under sec. 6330(a)(2) and (3)(B)

and (b), I.R.C.

Held, further, R’s decision to conduct a so-called

equivalent hearing did not result in a waiver by R of the

time restrictions imposed on P for requesting an Appeals

Office hearing pursuant to sec. 6330, I.R.C.

James R. Kennedy, pro se.

Susan Watson and Wendy S. Harris, for respondent.

OPINION

RUWE, 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 183.1 The Court agrees with

and adopts the Opinion of the Special Trial Judge, which is set

forth below.
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OPINION OF THE SPECIAL TRIAL JUDGE

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

on respondent’s Motion to Dismiss for Lack of Jurisdiction. 

Respondent contends that the Court lacks jurisdiction over the

petition on the ground that respondent did not issue a

determination letter to petitioner pursuant to section 6320 or

6330. As explained in detail below, insofar as petitioner seeks

review of a notice of the filing of a notice of lien pursuant to

section 6320, we will dismiss this case for lack of jurisdiction

on the ground that respondent failed to mail the notice required

by section 6320(a) to petitioner at his last known address and,

therefore, petitioner had no opportunity to request an

administrative hearing. Further, insofar as petitioner seeks

review of a notice of intent to levy pursuant to section 6330, we

will dismiss this case for lack of jurisdiction on the ground

that petitioner failed to make a timely request for an

administrative hearing and, therefore, respondent was not obliged

to (and did not) issue a determination letter to petitioner.

Background

On or about September 10, 1999, respondent mailed to

petitioner a Notice Of Federal Tax Lien Filing And Your Right To

A Hearing Under IRC 6320 (the notice required by section 6320(a))

concerning petitioner’s unpaid tax liabilities for the years 1984
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2 The notice required by sec. 6320(a) listed petitioner’s

tax liabilities as $19,372.79, $715.29, $15,010, $1,618.23, and

$2,189.94 for the years 1984, 1985, 1986, 1987, and 1988,

respectively.

3 The notice of intent to levy stated that petitioner owed

amounts from prior notices, additional penalties, and interest

totaling $24,198.16, $886.24, $18,939.59, $2,053.57, and

$2,797.52 for the years 1984, 1985, 1986, 1987, and 1988,

respectively.

through 1988.2 Respondent concedes that the notice required by

section 6320(a) was not mailed to petitioner at his last known

address and that such notice was therefore invalid. See sec.

6320(a)(2)(C). In any event, petitioner did not request an

administrative hearing with the Internal Revenue Service Office

of Appeals (Appeals Office) in respect of the notice required by

section 6320(a), nor did the Appeals Office either conduct an

administrative hearing or issue a determination letter regarding

the notice required by section 6320(a). 

On or about October 25, 1999, respondent mailed to

petitioner a Final Notice Of Intent To Levy And Notice Of Your

Right To A Hearing (notice of intent to levy) concerning

petitioner’s unpaid tax liabilities for the years 1984 through

1988.3 The notice of intent to levy was mailed to petitioner at

his last known address. See sec. 6330(a)(2)(C). Petitioner

actually received the notice of intent to levy on October 27,

1999, as reflected by the U.S. Postal Service Form 3811, Domestic

Return Receipt, that was signed at the time that the notice was
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delivered. The notice of intent to levy stated in pertinent

part: “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”.

On December 1, 1999, the Appeals Office received a Form

12153, Request for a Collection Due Process Hearing, from

petitioner. Petitioner’s request arrived at the Appeals Office

in an envelope bearing a U.S. Postal Service postmark date of

November 30, 1999.

Although the Appeals Office concluded that petitioner had

failed to file his request for a hearing within the time

prescribed in section 6230 or 6330, the Appeals Office granted

petitioner a so-called equivalent hearing. See sec. 301.6330-

1T(i), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3413 (Jan.

22, 1999). Petitioner attended the equivalent hearing, which was

conducted on July 24, 2000. On August 17, 2000, the Appeals

Office issued a “decision letter” to petitioner stating that

respondent would proceed with collection by way of levy. 

Respondent’s decision letter states in pertinent part:

Your due process hearing request was not filed within

the time prescribed under Section 6320 and/or 6330. 

However, you received a hearing equivalent to a due

process hearing except that there is no right to

dispute a decision by the Appeals Office in court under

IRC Sections 6320 and/or 6330.
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On September 11, 2000, despite the above-quoted statement in

respondent’s decision letter, petitioner filed with the Court a

Petition For Lien Or Levy Action Under Code Sections 6320(c) Or

6330(d). In response to the petition, respondent filed a Motion

to Dismiss for Lack of Jurisdiction, asserting that the petition

should be dismissed on the ground that the decision letter that

respondent issued to petitioner does not constitute a

determination letter sufficient to invoke the Court’s

jurisdiction pursuant to section 6330(d). Petitioner filed an

objection to respondent’s motion to dismiss, asserting that

respondent failed: (1) To mail the notice required by section

6320(a) to him at his last known address; and (2) to conduct a

proper collection hearing.

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

session in Washington, D.C. Although no appearance was made by

or on behalf of petitioner at the hearing, petitioner did file a

written statement with the Court pursuant to Rule 50(c). Counsel

for respondent appeared at the hearing and informed the Court

that petitioner had recently filed a bankruptcy petition. As a

result, the Court issued an order staying all proceedings in this

case pursuant to 11 U.S.C. section 362(a)(8) (1994).

Shortly thereafter, respondent filed a status report with

the Court stating that petitioner’s bankruptcy case had been

dismissed. The Court subsequently issued an order lifting the

automatic stay.
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This matter was called for further hearing at the Court’s

motions session in Washington, D.C. Although no appearance was

made by or on behalf of petitioner at the hearing, petitioner did

file a written statement with the Court pursuant to Rule 50(c). 

Counsel for respondent appeared at the hearing and offered

argument in support of respondent’s motion to dismiss. Counsel

for respondent informed the Court that on or about March 6, 2001,

respondent had issued a “substitute” notice required by section

6320(a) to petitioner concerning his unpaid tax liabilities for

the years 1984 through 1988.

Discussion

Section 6321 provides that if any person liable to pay any

tax neglects or refuses to pay the same after demand, the unpaid

tax shall be a lien in favor of the United States upon all

property and rights to property belonging to that person. 

Section 6322 provides that the lien imposed under section 6321

generally arises at the time of assessment. However, section

6323 provides that the lien shall not be valid against any

purchaser, holder of a security interest, mechanic’s lienor, or

judgment lien creditor until the Secretary files a notice of lien

with the appropriate public officials. Section 6320(a) provides

that the Secretary shall provide the person described in section

6321 with written notice of the filing of a notice of lien under

section 6323, including notice of the administrative appeals

available to the person.
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Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay the tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect the tax by levy upon the person’s property. Section

6331(d) provides that, at least 30 days before enforcing

collection by way of a levy on the person’s property, the

Secretary is obliged to provide the person with a final notice of

intent to levy, including notice of the administrative appeals

available to the person.

In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide protections for taxpayers in

tax collection matters. Sections 6320 and 6330 generally provide

that the Commissioner cannot proceed with collection 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 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).
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4 Although the term “last known address” is not defined in

the Internal Revenue Code or in the regulations thereunder, we

have held that a taxpayer’s last known address (as the term is

used in sec. 6213 regarding the proper mailing of a notice of

deficiency) is the address shown on the taxpayer’s most recently

filed return, absent clear and concise notice of a change of

address. See, e.g., Abeles v. Commissioner, 91 T.C. 1019, 1035

(1988).

Sections 6320(a) and 6330(a) provide in pertinent part that

the Secretary shall notify a person in writing of his or her

right to an Appeals Office hearing regarding the Secretary’s

filing of a notice of lien under section 6323 or the Secretary’s

intent to levy, respectively, by mailing the notice required by

section 6320(a) or section 6330(a), as the case may be, by

certified or registered mail to such person at his or her last

known address.4

Section 6320(a)(2) provides that the prescribed notice shall

be provided not more than 5 business days after the day on which

the notice of lien under section 6323 is filed. Further, section

6320(a)(3)(B) provides that the prescribed notice shall explain

that the person has the right to request an Appeals Office

hearing during the 30-day period beginning on the day after the

5-day period described in paragraph (2).

Section 6330(a)(2) provides that the prescribed notice shall

be provided 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. Further, section 6330(a)(3)(B) provides that the

prescribed notice shall explain that the person has the right to
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request an Appeals Office hearing during the 30-day period under

paragraph (2).

Section 6330(c) prescribes the matters that may be raised by

a taxpayer at an Appeals Office hearing. In sum, section 6330(c)

provides that a taxpayer may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner’s

intended collection action, and possible alternative means of

collection. Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the taxpayer did not receive a

notice of deficiency for the taxes in question or did not

otherwise have an earlier opportunity to dispute the tax

liability. See Sego v. Commissioner, 114 T.C. 604, 609 (2000);

Goza v. Commissioner, supra.

Where the Appeals Office issues a determination letter to

the taxpayer following an administrative hearing regarding a lien

or levy action, sections 6320(c) (by way of cross-reference) and

6330(d)(1) provide that the taxpayer will have 30 days following

the issuance of the determination letter to file a petition for

review with the Tax Court or a Federal District Court. See

Offiler v. Commissioner, 114 T.C. 492, 498 (2000). We have held

that the Court’s jurisdiction under sections 6320 and 6330

depends upon the issuance of a valid determination letter and the

filing of a timely petition for review. See Meyer v.

Commissioner, 115 T.C. 417, 421 (2000); Offiler v. Commissioner,
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5 Petitioner may yet have the opportunity to obtain an

(continued...)

supra at 498.

As discussed below, we conclude that respondent did not

issue a determination letter to petitioner pursuant to section

6320 or 6330. We therefore lack jurisdiction over the petition. 

However, as was the case in Meyer v. Commissioner, supra at 422,

because the basis for dismissal may affect whether respondent can

proceed with collection and/or may otherwise affect petitioner’s

rights, we are obliged to determine the proper ground for

dismissal.

Notice of the Filing of A Notice of Lien

As indicated, respondent concedes that he failed to mail the

notice required by section 6320(a) to petitioner at his last

known address as required under section 6320(a)(2)(C) and that

such notice is therefore invalid. Respondent does not contend

that petitioner actually received the notice required by section

6320(a). Under the circumstances, petitioner was denied the

opportunity to make a timely request for an Appeals Office

hearing because of the misaddressed notice. Accordingly, insofar

as the petition filed herein purports to be a petition for review

pursuant to section 6320, we will dismiss the petition for lack

of jurisdiction on the ground that respondent did not make a

determination under section 6320 because respondent failed to

send the written notice prescribed by section 6320(a)5 to
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5(...continued)

Appeals Office hearing with respect to the notice required by

sec. 6320(a) inasmuch as respondent purportedly issued a

“substitute” notice to petitioner on or about Mar. 6, 2001.

petitioner at his last known address.

Notice of Intent To Levy

1. Petitioner’s Failure To Make a Timely Request for 

Hearing

The notice of intent to levy, which was dated October 25,

1999, was mailed to petitioner at his last known address no later

than October 26, 1999. Petitioner received the notice of levy on

October 27, 1999. The notice informed petitioner that he had 30

days from the date of the notice to file a request for an Appeals

Office hearing.

On December 1, 1999, the Appeals Office received by mail 

petitioner’s request for a hearing. The request arrived at the

Appeals Office in an envelope bearing a U.S. Postal Service

postmark date of November 30, 1999. Because the 30-day time

period prescribed in section 6330(a)(2) and (3)(B) and (b) for

filing a timely request for an Appeals Office hearing expired no

later than November 25, 1999, it follows that petitioner’s

request was untimely. As a consequence of petitioner’s failure

to make a timely request for an Appeals Office hearing, the

Appeals Office was not obliged to conduct the administrative

hearing contemplated under section 6330(b).
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2. Equivalent Hearing

 In lieu of a hearing under section 6330(b), the Appeals

Office granted petitioner a so-called equivalent hearing. During

the motions hearing in this case, the Court raised the question

whether the equivalent hearing might be considered a waiver by

respondent of the 30-day filing period in which a taxpayer must

file a request for an Appeals Office hearing under section

6330(a)(2) and (3)(B) and (b). Respondent argued that there was

no such waiver. We agree.

We note that section 6330 does not authorize the

Commissioner to waive the time restrictions imposed therein. 

Equally important, in Offiler v. Commissioner, supra, we

indicated that, where the taxpayer failed to file a timely

request for an Appeals Office hearing in respect of a notice of

intent to levy, an Appeals Office review of the taxpayer’s case

pursuant to the Collection Appeals Program did not result in a

determination within the meaning of section 6320 or 6330. Upon

reflection, we are satisfied that the decision to grant

petitioner an equivalent hearing in this case simply reflects

respondent’s good faith effort to further a fundamental policy

underlying section 6330; i.e., to provide a taxpayer with a final

opportunity for administrative review before proceeding with

enforced collection. Consistent with the foregoing, we hold that

the decision to conduct an equivalent hearing did not result in a
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waiver by respondent of the time restrictions within which

petitioner was required to request an Appeals Office hearing

under section 6330.

3. Decision Letter

On August 17, 2000, following the equivalent hearing, the

Appeals Office issued a decision letter to petitioner stating

that respondent would proceed with collection. Petitioner

contends that the decision letter is tantamount to a valid

determination letter under section 6330(d).

Petitioner’s position ignores the unambiguous statement in

the decision letter that the equivalent hearing was not intended

to serve as an Appeals Office hearing within the meaning of

section 6320 or 6330. As previously discussed, because

petitioner failed to file a timely request for an Appeals Office

hearing, the Appeals Office was not obliged to conduct such a

hearing. In this regard, the decision letter was not, and did

not purport to be, a determination letter pursuant to section

6320 or section 6330. See Offiler v. Commissioner, supra at 495.

In sum, we hold that respondent did not issue a

determination letter to petitioner sufficient to invoke the

Court’s jurisdiction to review the notice of intent to levy. 

Insofar as the petition filed herein purports to be a petition

for review pursuant to section 6330(d), we will dismiss the

petition for lack of jurisdiction on the ground that respondent
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did not make a determination pursuant to section 6330 because

petitioner failed to file a timely request for an Appeals Office

hearing pursuant to section 6330(a)(2) and (3)(B) and (b).

To reflect the foregoing,

An appropriate order of

dismissal for lack of jurisdiction

will be entered.