T.C. Memo. 2004-152

UNITED STATES TAX COURT

WANDA P. CHOCALLO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 12695-02L. Filed June 28, 2004.

Wanda P. Chocallo, pro se.

Russell K. Stewart, for respondent.

MEMORANDUM OPINION

RUWE, Judge: The issues before the Court concern

respondent’s motion to dismiss this section 6330 case as moot and

petitioner’s “Motion For Sanctions, Contempt and For Other

Relief”, as supplemented.
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1Unless otherwise indicated, all section references are to

the Internal Revenue Code currently in effect, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

2Respondent refers to the notice of intent to levy as the

“Collection due process hearing notice” or CDP notice, the

terminology which respondent uses in his regulations. See sec.

301.6330-1(a)(1), Proced. & Admin. Regs.

3Generally, the CDP notice is sent to a taxpayer by 

certified or registered mail, return receipt requested, to the

taxpayer’s “last known address”. Sec. 6330(a)(2).

Background

Petitioner filed an action under section 6330(a) contesting

a levy wherein respondent had collected $21,411.27 for

petitioner’s purported 1998 unpaid tax liability.1 Pursuant to

section 6330, the Commissioner is required to send a written

notice to the taxpayer of her right to a hearing2 before a levy

is made upon a taxpayer’s property “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 Sec. 6330(a)(2). The

notice, inter alia, informs the taxpayer that she is entitled to

“request a hearing” prior to the proposed levy. Sec.

6330(a)(3)(B). Upon timely request, the hearing is to be held by

an impartial officer with the Commissioner’s Appeals Office. 

Sec. 6330(b). The statute articulates those matters to be

considered at the hearing, including the requirement that the

Appeals officer obtain verification that the procedural

requirements “of any applicable law or administrative procedure”
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4No jeopardy determination was made in this case.

have been met. Sec. 6330(c)(1). Thereafter, the Appeals officer

is to make a determination whether to proceed with the proposed

levy action and embodies that determination in a notice sent to

the taxpayer. Sec. 6330(c); sec. 301.6330-1(e), Proced. & Admin.

Regs. Within 30 days of the determination, the taxpayer may seek

judicial review with either this Court or the District Court,

whichever is appropriate. Sec. 6330(d); sec. 301.6330-1(f),

Proced. & Admin. Regs. During the proceedings, as provided in

section 6330, the Commissioner is precluded from making the

proposed levy absent a jeopardy determination. Secs. 6330(e)(1)

and (f), 6331(a).4 Furthermore, if this Court has jurisdiction,

we are empowered to enjoin any such levy actions. Sec.

6330(e)(1). 

Respondent moved to dismiss for lack of jurisdiction on the

basis of respondent’s allegation that he had not issued a notice

of determination. We denied respondent’s motion to dismiss for

lack of jurisdiction in an Order dated November 12, 2003. In

that Order we found that petitioner had received a

“determination” within the contemplation of section 6330 and had

filed a timely petition. We noted various discrepancies in

respondent’s transcript of petitioner’s account for her 1998 tax

year and concluded that the determination was issued and the levy

had been made prior to giving petitioner an opportunity to
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5See infra p. 5, table note 1.

contest the propriety of the levy before an Appeals officer. We

ordered that the amount collected by levy be returned to

petitioner with interest. On December 4, 2003, respondent

complied with this Order by reimbursing petitioner for $21,411.27

that had been collected by levy from petitioner’s bank account

plus interest thereon of $1,524.72.5

In our Order of November 12, 2003, we also ordered that

petitioner be given a hearing before an Appeals officer in order

to determine whether the levy that respondent wanted to make was

appropriate. In so doing, we suggested that the Appeals officer

review certain facts that were presented during the previous

hearings regarding respondent’s motion to dismiss for lack of

jurisdiction. These facts suggested the possibility that the

1998 tax liability that respondent was trying to collect by levy

had been improperly assessed.

On or around December 9, 2003, respondent reported that he

had determined that the 1998 income tax liability that he was

trying to collect by levy had been improperly assessed and that

he would not pursue any levy action against petitioner for any

unpaid income taxes for 1998. Respondent also reported that he

was returning additional amounts previously collected from

petitioner for her 1998 liability that had been improperly
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assessed. These amounts were refunded to petitioner in the

following amounts:

Date Amount

1/23/04 1$23,626.88

1/29/04 2,041.31

1Respondent calculated this amount as follows:

Description Amount

Petitioner’s payment with 1998 return $40,286.59

Less: 1998 tax assessed on return (7,450.00)

Less: 1998 late payment penalty (223.50)

Less: 1998 interest (304.86)

Less: Amount applied to 1995 outstanding

 liability (7,937.81)

Less: Amount applied to 1994 outstanding

 liability (4,639.77)

 Subtotal 19,730.65

Additional payment by petitioner 11/9/01 667.40

1999 overpayment credit 368.64

 Subtotal 20,766.69

Less: Amount applied to 2000 outstanding

 liability (753.10)

Less: Amount applied to 2001 outstanding

 liability (829.56)

 Total 19,184.03

In his initial processing of petitioner’s refund check of Jan.

23, 2004, respondent failed to consider the interest of $1,524.72

paid to petitioner when the levy proceeds were refunded on Dec.

4, 2003. Thus, respondent made an additional deduction of

$1,524.72 from the principal amount of $19,184.03 to be paid, so

that the final amount of the check issued to petitioner on Jan.

23, 2004 was $23,626.88, $17,659.31 of principal and $5,967.57 of

accrued interest. 

As a result of respondent’s determinations and actions,

respondent moved to dismiss this section 6330 case as being moot. 

Petitioner then filed her “Motion For Sanctions, Contempt and For

Other Relief”. On April 1, 2004, petitioner filed a
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6Our jurisdiction is predicated upon sec. 6330(d)(1)(A). 

See Davis v. Commissioner, 115 T.C. 35, 37 (2000); Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 179 (2000).

7Petitioner appears to argue that she was entitled to funds

that respondent credited to other outstanding tax liabilities. 

Sec. 6402(a) permits the Secretary to credit any overpayment

“against any liability in respect of an internal revenue tax on

the part of the person who made the overpayment” and requires the

Secretary to refund any balance to that taxpayer. 

“Supplemental Motion for Sanctions, Contempt and For Other

Relief”.

Discussion

Our jurisdiction under section 6330 is generally limited to

reviewing whether a proposed levy action is proper.6 Respondent

has stated that the levy he proposed (and improperly made) is no

longer being pursued. The amounts that respondent collected by

levy have been returned with interest. In addition, amounts

previously collected regarding petitioner’s 1998 income tax

liability have been refunded or credited.7 Our jurisdiction

under section 6330 is limited to reviewing the proposed levy

action regarding petitioner’s 1998 income tax liability. Since

respondent now agrees that there is no unpaid 1998 income tax

liability upon which a levy could be based, we agree with

respondent that the issue regarding the levy is moot.

The gravamen of petitioner’s motion, as supplemented, is

that she “has been the victim of IRS tyranny, terrorism,

thievery, fraud, deceit, cunning craft and dishonesty.” 
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8Petitioner has not explicitly claimed administrative or

litigation costs pursuant to sec. 7430 even though she was

specifically advised by the Court that if she wished to make such

claim she would have to provide the facts and information

required by Rule 231. Petitioner has not provided the

information required by Rule 231.

Petitioner requests that respondent’s employees who handled her

case be criminally prosecuted for various alleged offenses. We

have no jurisdiction to consider such actions. Petitioner also

claims other monetary compensation including damages in the sum

of $1 million for alleged wrongs committed by respondent’s

employees. Petitioner does not cite or rely upon any specific

statute as a basis for these claims, and we generally have no

jurisdiction over such matters.8 If petitioner’s $1 million

claim for damages were meant to be predicated upon section 7433,

which provides for up to $1 million in civil damages for certain

unauthorized collection actions, we note that such claims must be

brought in a district court of the United States.

Since petitioner has received all the relief to which she is

entitled under section 6330, we shall grant respondent’s motion

to dismiss this case as moot. We shall also deny petitioner’s 
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“Motion For Sanctions, Contempt and For Other Relief”, as

supplemented.

An appropriate order and order

of dismissal will be entered

granting respondent’s Motion to

Dismiss on the Ground of Mootness

and denying petitioner’s Motion for

Sanctions, Contempt and For Other

Relief, as supplemented.