T.C. Memo. 2007-117

UNITED STATES TAX COURT

LYNNE M. SMITH, Petitioner, AND STANLEY J. SMITH, Intervenor v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8644-05. Filed May 9, 2007.

Philip J. Vecchio, for petitioner.

Stanley J. Smith, pro se.

John R. Mikalchus, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent’s motion to dismiss for lack of jurisdiction (respondent’s

motion). Respondent filed respondent’s motion after the Court

issued Billings v. Commissioner, 127 T.C. 7 (2006), and before

Congress enacted the Tax Relief and Health Care Act of 2006
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1All section references are to the Internal Revenue Code in

effect before its amendment by the Act.

(Act). We shall grant respondent’s motion. 

Background

In support of respondent’s motion, respondent relies on

Billings v. Commissioner, supra, in which the Court held that it

lacks jurisdiction under section 6015(e)1 to review a determination under section 6015(f) where no deficiency has been asserted.

Stanley J. Smith, intervenor in this case, filed a response

to respondent’s motion in which he indicated that respondent’s

motion should be granted.

Petitioner filed a response to respondent’s motion (petitioner’s response) in which she indicated that respondent’s

motion should be denied. In support of her position, petitioner

argued in petitioner’s response that “Billings is not wholly

dispositive of this proceeding.” That is because, according to

petitioner, respondent made a wrongful levy with respect to her

taxable years 1998 and 2002, and “the Tax Court has jurisdiction

to address wrongful levy refund claims and equitable relief under

Internal Revenue Code section 6330.” 

About five months after the Court issued its opinion in

Billings v. Commissioner, supra, Congress passed the Act. The

Act amended section 6015(e)(1) to provide that the Court may

review respondent’s denial of relief under that section in any
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case where an individual requested relief under section 6015(f). 

Tax Relief and Health Care Act of 2006, Pub. L. 109-432, div. C,

sec. 408(a), 120 Stat. 2922, 3061. That amendment applies “with

respect to liability for taxes arising or remaining unpaid on or

after the date of the enactment of this Act.” Id. sec. 408(c),

120 Stat. 3062. The date of enactment of the Act was December

20, 2006.

On January 10, 2007, the Court issued an Order (January 10,

2007 Order) in which it directed each party to address the

Court’s jurisdiction in this case in light of the amendment that

the Act made to section 6015(e)(1). 

Respondent filed a response to the Court’s January 10, 2007

Order (respondent’s response to the Court’s Order) in which 

respondent stated in pertinent part:

4. The balance of tax due for taxable years 1998

and 2002 was paid on April 27, 2006 pursuant to a levy

issued to Anthony Arcodia, Jr., an attorney who was

holding in escrow the proceeds of the sale of the

former residence of the petitioner and the intervenor.

5. The tax liabilities, including interest and

penalties, for which petitioner is seeking relief

pursuant to I.R.C. § 6015(f) were both fully paid on

April 27, 2006, which date is prior to the enactment of

the Act. Thus, the liabilities at issue did not remain

unpaid as of the date of enactment. As a result, the

amendments to I.R.C. § 6015(e) made by the Act * * * do

not apply to the present case. Because the amendments

do not apply, I.R.C. § 6015(e) as it existed before the

amendments and the law concerning that statute apply to

the present case.

6. Before the amendments, I.R.C. § 6015(e), by its

terms, only granted the Tax Court jurisdiction “[i]n the
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case of an individual against whom a deficiency has been

asserted.”

* * * * * * *

8. In this case respondent has not determined a deficiency for the years at issue. Therefore, respondent respectfully states that the Tax Court lacks jurisdiction over

this case.

On February 28, 2007, petitioner filed a response to the

Court’s January 10, 2007 Order (petitioner’s response to the

Court’s Order) in which petitioner stated in pertinent part:

the question in the case at hand is whether or not the

liability for taxes remains unpaid on the date of

enactment of the Tax Relief and Health Care Act of

2006. Petitioner maintains that the liability for

taxes remains unpaid on the date of enactment because

Respondent’s levy of escrow funds was wrongful, Petitioner was denied collection due process, and Petitioner has timely filed a demand to have the levied

funds restored to the escrow account * * *

On April 4, 2007, respondent filed a reply to petitioner’s

response to the Court’s Order (respondent’s reply) in which

respondent stated in pertinent part: 

5. First, respondent was not prohibited from

pursuing collection action in this case under I.R.C. §

6015. The restrictions on collection action while a

claim for relief under I.R.C. § 6015 is pending with

this Court, imposed by I.R.C. § 6015(e)(1)(B) (as in

effect at the time of the levy), only apply to requests

for relief under I.R.C. § 6015(b) or (c). Because

petitioner was requesting relief pursuant to I.R.C. §

6015(f), respondent was not prevented from pursuing

collection action to collect the tax liabilities in

this case.

6. Second, in a stand-alone case such as this,

where jurisdiction is predicated on I.R.C. § 6015(e),

the only issue is whether petitioner is entitled to

relief under I.R.C. § 6015. Block v. Commissioner, 120
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T.C. 62, 64-5 (2003). Therefore, petitioner cannot

raise the validity of the levy in this case.

7. Thus, as argued in detail in Respondent’s

Response to the Court’s Order dated January 10, 2007,

the Court does not have jurisdiction in this case

because (1) the amendments made by the Act do not apply

to this case because the liabilities at issue were

full[y] paid prior to the effective date; and (2) the

Court lacks jurisdiction under former I.R.C. § 6015(e)

because respondent did not determine a deficiency

against petitioner. * * *

8. Even assuming, arguendo, that the Court can

consider the validity of the levy, the levy was valid.

* * * * * * *

11. More specifically, on February 7, 2006,

Revenue Officer Ebenhoch issued Letter 1058A, “Final

Notice - Notice of Intent to Levy and Notice of Your

Right to a Hearing” (hereinafter referred to as the

“CDP notice”), by certified mail to petitioner at 12

Oxford Road, Slingerlands, New York 12159. * * * 

This letter constituted petitioner’s Collection Due

Process notice for a proposed levy action to collect

the outstanding joint tax liabilities for the 1998 

* * * and 2002 tax years. Revenue Officer Ebenhoch

also mailed a copy of the CDP notice to petitioner’s

attorney, Philip J. Vecchio. * * *

12. On February 15, 2006, Revenue Officer

Ebenhoch received the return receipt from the CDP

notice indicating that the notice had been accepted for

delivery. According to the return receipt, it was

signed by Lynn [sic] M. Smith on February 14, 2006.

* * *

13. On March 28, 2006, Revenue Officer Ebenhoch

issued a Notice of Levy to Anthony Arcodia, Jr. to levy

on the escrow funds. * * *

14. On April 27, 2006, Revenue Officer Ebenhoch

received two checks from Anthony Arcodia, Jr. totaling

$68,597.57. Of this amount, $50,537.97 was applied to

fully pay the joint balances due for the 1998, 2001,

and 2002 tax years of the petitioner and the intervenor. * * *
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15. In Petitioner’s Response [to the Court’s

Order], petitioner states in paragraph 5 that respondent issued a “notice of levy” against an escrow account on February 7, 2006. As evidenced by the preceding discussion, the CDP notice was issued on this date

while the Notice of Levy was issued on March 28, 2006.

16. Petitioner had 30 days from the issuance of

the CDP notice in which to request in writing a collection due process hearing with respondent’s Office of

Appeals. I.R.C. §§ 6330(a)(2) and (b)(1); Treas. Reg.

§ 301.6330-1(c)(2)(Answer C-1).

17. Respondent has no record of petitioner filing

Form 12153 or any other written request with respondent

requesting a collection due process hearing within 30

days after the mailing of the CDP notice. Exhibit D to

Petitioner’s Response [to the Court’s Order] indicates

that counsel for petitioner first contacted Revenue

Officer Ebenhoch on March 29, 2006, which date was more

than 30 days after the issuance of the CDP notice. 

Moreover, counsel for petitioner states in paragraph 9

to Petitioner’s Response [to the Court’s Order] that he

contacted respondent’s Appeals Officer Estelle Gottlieb

on March 30, 2006. He states in paragraph 10 that “by

virtue of this latter request of Ms. Gottlieb, Petitioner’s Counsel intended that a hearing be held with

respect to the Notice of Levy.” Again, this contact

date occurred more than 30 days after the mailing of

the CDP notice. Thus, even if petitioner is construed

to have informally made a request for a collection due

process hearing pursuant to this contact, said request

was not timely and petitioner was not entitled to a

hearing.

Discussion

The amendment to 6015(e)(1) that the Act made applies only

“with respect to liability for taxes arising or remaining unpaid

on or after”, Tax Relief and Health Care Act of 2006, Pub. L.

109-432, div. C, sec. 408(c), 120 Stat. 2922, 3062, December 20,

2006, the date of the enactment of the Act. Petitioner admits
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2Assuming arguendo (1) that we had the authority in the

instant case to determine whether the levy issued to Mr. Arcodia

was valid and (2) that we were to determine that that levy was

invalid, the fact nonetheless remains that there was no liability

for tax for petitioner’s taxable year 1998 or her taxable year

2002 that remained unpaid on or after Dec. 20, 2006, the date of

the enactment of the Act. That would be true even if petitioner

were entitled to a refund of the amount that Mr. Arcodia paid on

Apr. 27, 2006, with respect to the tax liability for each of

those years. 

that, pursuant to a levy issued to Anthony Arcodia, Jr. (Mr.

Arcodia), an attorney who was holding in escrow the proceeds of

the sale of the former residence of petitioner and the intervenor, Mr. Arcodia paid on April 27, 2006, the liability for tax

with respect to, inter alia, each of petitioner’s taxable years

1998 and 2002. Although petitioner makes various claims in

petitioner’s response to the Court’s Order that that levy was

unlawful, the fact remains that there was no liability for tax

for petitioner’s taxable year 1998 or her taxable year 2002 that

remained unpaid on or after December 20, 2006, the date of the

enactment of the Act.2 

We hold that the amendment to section 6015(e)(1) that the

Act made does not apply in the instant case. We further hold

that we do not have jurisdiction over the instant case to determine whether petitioner is entitled to relief under section

6015(f) where no deficiency has been asserted with respect to

petitioner’s taxable year 1998 or her taxable year 2002. Billings v. Commissioner, 127 T.C. 7 (2006).
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To reflect the foregoing, 

An order granting respondent’s

motion to dismiss for lack of jurisdiction will be entered.