1 Unless otherwise indicated, section references are to

sections of the Internal Revenue Code, as amended, and Rule

(continued...)

T.C. Memo. 2002-15

UNITED STATES TAX COURT

FRANKLIN A. OGDEN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3343-01L. Filed January 15, 2002.

Franklin A. Ogden, pro se.

Gerald W. Douglas, Karen Baker and Peter Reilly, for 

respondent.

MEMORANDUM OPINION

PANUTHOS, Chief Special Trial Judge: This collection review

case is before the Court on respondent’s motion to dismiss for

lack of jurisdiction. As explained in detail below, we shall

grant respondent’s motion to dismiss.1
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1(...continued)

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

This case was assigned pursuant to sec. 7443A(b)(4).

Background

On July 8, 1999, respondent mailed to petitioner a Final

Notice Of Intent to Levy and Notice of Your Right To A Hearing

requesting that petitioner pay his delinquent income taxes for

the taxable year 1984. Petitioner responded by filing with the

Internal Revenue Service Office of Appeals (Appeals Office) a

request for an administrative hearing.

By letter dated January 31, 2000, Appeals Officer Jose

Gonzales directed petitioner to contact him by February 14, 2000,

for the purpose of scheduling an administrative hearing. On

February 7, 2000, Appeals Officer Gonzales received a letter from

Gary Arthur DeMott (Mr. DeMott), identified in the letter as

petitioner’s representative, stating that petitioner intended to

challenge his underlying tax liability for 1984. By letter dated

February 14, 2000, Appeals Officer Gonzales informed petitioner

that he had received a letter from Mr. DeMott, that Mr. DeMott

was not duly authorized to represent petitioner, and that “If I

do not hear from you and you do not provide additional evidence

or make arrangements to pay the tax for 1984 before February 24,

2000, I will send you a determination letter providing your

judicial rights.”
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On April 19, 2000, the Appeals Office issued to petitioner a

Notice of Determination Concerning Collection Actions Under

Section 6320 and/or 6330 (notice of determination) concerning his

1984 tax liability. The determination letter informed petitioner

that he would have 30 days to contest the matter by filing a

petition with the Tax Court.

 On May 17, 2000, petitioner filed a “Petition for Judicial

Review” in the U.S. District Court for the District of Idaho,

assigned docket No. CV00-266-N-EJL, challenging the notice of

determination. On December 20, 2000, the District Court issued

an order dismissing the case for lack of jurisdiction. The order

stated that petitioner would have 30 days to file a petition for

review with the Tax Court.

On January 23, 2001, petitioner instituted a second action

in the District Court by filing a “Complaint And Request For

Judicial Review Of Administrative Action”, assigned docket No.

CV01-35-N-EJL, again challenging the notice of determination. On

February 8, 2001, the District Court issued an order dismissing

the case for lack of jurisdiction. The order again stated that

petitioner would have 30 days to file a petition for review with

the Tax Court. 

On March 14, 2001, the Court received and filed a Petition

For Lien Or Levy Action Under Code Sections 6320(c) Or 6330(d)
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2 At the time the petition was filed, petitioner resided in

Sagle, Idaho.

3 Before the hearing, the Court summarily denied

petitioner’s motion for hearing to determine real parties in

interest. The motion was replete with frivolous arguments and,

among other things, asserted:

Natural person petitioner, Franklin A. Ogden

therefore requests a hearing wherein respondent must

declare via a sworn statement, subject to the penalty

(continued...)

challenging the notice of determination.2 The petition arrived

in an envelope bearing a U.S. Postal Service postmark dated 

March 9, 2001. In response to the petition, respondent filed a

motion to dismiss for lack of jurisdiction asserting that the

petition was not filed with the Court within 30 days of the

District Court’s order of dismissal issued December 20, 2000.

Petitioner filed an objection to respondent’s motion to

dismiss asserting that: (1) His petition was filed with the

Court within 30 days of the District Court’s order of dismissal

issued February 8, 2001; and (2) respondent failed to conduct an

administrative hearing in this case.

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

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

at the hearing and offered argument in support of respondent’s

motion to dismiss. Although no appearance was entered by or on

behalf of petitioner at the hearing, petitioner filed with the

Court a written statement and a supplemental written statement

pursuant to Rule 50(c).3 Petitioner repeated his argument that
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3(...continued)

of perjury under the laws of the United States, whether

it is the legal fiction FRANKLIN A. OGDEN, respondent

is asserting a tax liability for the 1984 tax year, or

is respondent asserting that natural person Franklin A.

Ogden has a tax liability for the 1984 tax year.

his petition was timely filed, and, in the alternative, requested

that the Court direct respondent to provide him an administrative

hearing. 

Discussion

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

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

notice and demand for payment, the Secretary is authorized to

collect such 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 persons in tax

collection matters. Sections 6320 and 6330 generally provide

that the Commissioner cannot proceed with collection by way of a

lien or levy action until the person has been given notice and

the opportunity for an administrative review of the matter (in
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the form of an Appeals Office hearing), and if dissatisfied, with

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).

Section 6330(c) prescribes the matters a person may raise at

an Appeals Office hearing. In sum, section 6330(c) provides that

a person 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 person 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 person 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 person 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). Section

6330(d)(1) provides:
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SEC. 6330(d). Proceeding After Hearing.--

(1) Judicial review of determination.-–The person

may, within 30 days of a determination under this

section, appeal such determination--

(A) to the Tax Court (and the Tax Court shall

have jurisdiction to hear such matter); or

(B) if the Tax Court does not have

jurisdiction of the underlying tax liability, to a

district court of the United States.

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.

See McCune v. Commissioner, 115 T.C. 114 (2000) (dismissing a

petition for lack of jurisdiction where the taxpayer failed to

file his initial petition for review with the Federal District

Court within the 30-day period). 

 We have held that the Court’s jurisdiction under sections

6320 and 6330 depends upon the issuance of a determination letter

and the filing of a timely petition for review. See Sarrell v.

Commissioner, 117 T.C. 122, 125 (2001); Offiler v. Commissioner,

supra at 498.

In the instant case, petitioner erroneously filed his

initial petition with the District Court. On December 20, 2000,

the District Court issued an order dismissing the petition for

lack of jurisdiction and informing petitioner that he would have

30 days from the date of the order to file a petition with the

Tax Court. Petitioner again failed to file a petition for review
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with this Court and instead filed a second action in the District

Court. Petitioner mailed a petition for review to this Court

within 30 days after the District Court issued its order

dismissing the second action for lack of jurisdiction.

Section 6330(d)(1) provides in unambiguous terms that “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.” The 30-day period within

which petitioner had to file a petition for review with the Court

began to run on December 20, 2000--the date the District Court

issued its order dismissing petitioner’s initial action for lack

of jurisdiction. Petitioner’s position that the 30-day period

should be measured from the date the District Court issued its

order dismissing his second action would thwart the plain

language of the statute and Congress’s intent that collection

review proceedings be instituted within a fixed and relatively

limited time. In this connection, we have stated on numerous

occasions that the Tax Court is a court of limited jurisdiction,

and we may exercise our jurisdiction only to the extent

authorized by Congress. See sec. 7442; Judge v. Commissioner, 88

T.C. 1175, 1180-1181 (1987); Naftel v. Commissioner, 85 T.C. 527,

529 (1985). We have held that the statutory periods set forth in

section 6330 are jurisdictional and cannot be extended. See

McCune v. Commissioner, supra at 117; cf. Kennedy v.
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Commissioner, 116 T.C. 255, 262 (2001) (holding that the

Commissioner may not waive the time restrictions imposed in

section 6330).

On the basis of the foregoing, we hold that we lack

jurisdiction inasmuch as the petition was not timely filed with

the Court. Accordingly, we shall grant respondent’s motion to

dismiss for lack of jurisdiction.

Petitioner also contends that the Appeals Office issued the

notice of determination without conducting an administrative

hearing. In Lunsford v. Commissioner, 117 T.C. 159, 164 (2001),

we recently held that we shall not look behind a notice of

determination to consider whether the Appeals Office conducted an

administrative hearing. Consistent with our holding in Lunsford

we hold that the notice of determination issued to petitioner is

valid.

We have considered petitioner’s remaining arguments and find

them to be meritless. 

To reflect the foregoing, 

An order of dismissal

for lack of jurisdiction

will be entered.