125 T.C. No. 7 

UNITED STATES TAX COURT

HERBERT AND ROSALIE CLARK, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3082-05L. Filed September 26, 2005.

R issued a notice of levy on Ps’ State tax refund

to collect unpaid assessed additions to tax. After Ps

requested a hearing under sec. 6330, I.R.C., on the

appropriateness of the levy, R determined that the levy

was appropriate.

Held: The Court has jurisdiction under sec.

6330(d), I.R.C., to review R’s determination regarding

the levy upon Ps’ State tax refund.

Jeffrey E. Rattner and Steve Mather, for petitioners.

Elaine T. Fuller, for respondent.
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1 Unless otherwise noted, section references are to the

applicable versions of the Internal Revenue Code. Petitioners

resided in Beverly Hills, California, when their petition was

filed.

OPINION

LARO, Judge: Petitioners petitioned the Court under section

6330(d) to review a determination of the Commissioner’s Office of

Appeals (Appeals) sustaining respondent’s levy upon their State

tax refund.1 Respondent made the levy to collect additions to

tax assessed as to petitioners’ 1997 Federal income tax. The

sole issue in this Opinion is whether the Court has jurisdiction

to review respondent’s determination as to the levy upon

petitioners’ State tax refund. We hold that the Court has the

requisite jurisdiction.

Background

Petitioners filed their 1997 Federal income tax return

untimely. Upon receipt of the return, respondent assessed the

tax shown on the return and related additions to tax for failure

to file timely, failure to pay timely, and failure to make

estimated tax payments under sections 6651(a)(1) and (2) and

6654, respectively. On November 17, 2003, respondent issued to

petitioners a notice of levy on their State tax refund to collect

their unpaid assessed additions to tax for 1997. Following

petitioners’ timely request for a hearing under section 6330 as
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to the levy, Appeals sustained the levy through a notice of

determination.

Discussion

We decide whether the Court has jurisdiction under section

6330(d) to review the determination of Appeals sustaining the

levy upon petitioners’ State tax refund. Although neither party

has contested our jurisdiction, jurisdiction may not be conferred

upon the Court by agreement, see Neely v. Commissioner, 115 T.C.

287, 291 (2000); Naftel v. Commissioner, 85 T.C. 527 (1985), or

through an equitable principle such as estoppel, Am. Fire & Cas.

Co. v. Finn, 341 U.S. 6, 17-18 (1951). Whether the Court has

jurisdiction to decide an issue is a matter that this or an

appellate court may decide at any time. See Raymond v.

Commissioner, 119 T.C. 191, 193 (2002). 

Section 6330 was enacted in 1998 to provide taxpayers with

administrative and judicial review of the Commissioner’s

collection actions. Internal Revenue Service Restructuring and

Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 746; H.

Conf. Rept. 105-599, at 265-266 (1998), 1998-3 C.B. 755, 1019,

1020. Section 6330(a) provides that the Commissioner must notify

taxpayers of their right to a hearing as to a levy and sets forth

specific rules for the required notice. Section 6330(b) contains

rules relating to the hearing. Section 6330(c) lists the issues

that taxpayers may raise at a section 6330(b) hearing. Section
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6330(d) provides for judicial review of determinations under

section 6330, stating that a taxpayer “may, within 30 days of a

determination under this section, appeal such determination” to

this Court. Section 6330(f) provides that “this section” shall

not apply in the case of a jeopardy levy or a levy on a State tax

refund.

In Dorn v. Commissioner, 119 T.C. 356 (2002), we decided

whether section 6330(f) restricts our jurisdiction under section

6330(d) to review jeopardy levy determinations. We held that it

did not. We concluded that section 6330(f) made the section

6330(a) requirement that a taxpayer be given prelevy notice

inapplicable to jeopardy levies rather than divesting this Court

of judicial review in such cases. Id. at 359. We believe that

similar reasoning applies here with regard to a levy on a State

tax refund. We now hold that the Court has jurisdiction under

section 6330(d) to review respondent’s determination regarding

that levy.

To reflect the foregoing,

An appropriate order will

be issued.