T.C. Memo. 2009-230

UNITED STATES TAX COURT

DONNA R. SPACE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1038-08L. Filed October 6, 2009.

Joseph Falcone, for petitioner.

John W. Stevens, for respondent.

MEMORANDUM OPINION

GOEKE, Judge: This case is before the Court on a petition

filed in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination).
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1Unless otherwise indicated, all Rule references are to the

Tax Court Rules of Practice and Procedure, and all section

references are to the Internal Revenue Code, as amended.

This case was submitted fully stipulated pursuant to Rule

122,1 and the facts are so found. Petitioner argues that the

notice of deficiency and the underlying assessments for taxable

years 2002 and 2003 are invalid and consequently a notice of

deficiency for these periods must be issued. Respondent argues

that the notice of deficiency was valid and that respondent

complied with the requirement of section 6330(a), to mail a

section 6330 notice to petitioner at her last known address, and

petitioner failed to timely request a collection hearing. 

Because we find that respondent failed to issue a valid final

notice of intent to levy and notice of the right to a hearing to

petitioner (notice of intent to levy), we will not decide the

validity of the deficiency notice or of the assessments; instead

on the Court’s own motion the case will be dismissed for lack of

jurisdiction.

Background

Petitioner resided on Westmoreland Road in Detroit, Michigan

(the Westmoreland address), at the time she filed her petition.

On March 15, 2007, petitioner received Internal Revenue

Service Letter 3614 at her Westmoreland address. The Letter 3614

contained a copy of a report of examination explaining proposed

adjustments for petitioner’s 2002-07 tax years. The Letter 3614
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was sent by certified mail from an Internal Revenue Service (IRS)

office in Detroit, Michigan.

On April 7, 2007, respondent issued petitioner a Letter

1058, Final Notice of Intent to Levy and Notice of Your

Right to a Hearing (notice of intent to levy). The notice of

intent to levy was sent to the petitioner’s previous address on

Wildemere Street in Detroit, Michigan (the Wildemere address).

Petitioner did not receive the notice of intent to levy until May

10, 2007. On that day petitioner filed Form 12153, Request for a 

Collection Due Process or Equivalent Hearing, with respondent’s

Appeals Office. In her request for a collection due process

(CDP) hearing, petitioner indicated that the request should be

considered timely because the notice of intent to levy was not

sent to her last known address. An IRS settlement officer spoke

to petitioner’s counsel on October 4, 2007, and informed him that

the Appeals officer had determined that the CDP notice issued on

April 7, 2007, was not in error because the Wildemere address was

petitioner’s last known address according to the records of the

IRS. 

On December 18, 2007, respondent issued a Decision Letter

Concerning Equivalent Hearing Under Section 6320 and/or 6330

(decision letter). The parties stipulated that the decision

letter was to be treated as a notice of determination. 
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On January 14, 2008, petitioner filed her petition with this

Court. 

Discussion

The Tax Court is a court of limited jurisdiction, and we may

exercise that jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The

Court’s jurisdiction under sections 6320 and 6330 depends upon

the issuance of a valid notice of determination and the filing of

a timely petition for review. See Orum v. Commissioner, 123 T.C.

1, 8 (2004), affd. 412 F.3d 819 (7th Cir. 2005); Sarrell v.

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

116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. 492,

498 (2000); see also Rule 330(b). In the absence of a notice of

determination, this Court generally lacks jurisdiction.

A necessary predicate for the issuance of a notice of

determination is the issuance of a notice of intent to levy to

the taxpayer at the taxpayer’s last known address (or otherwise

in conformity with section 6330(a)(2)). See sec. 6330(a)(2). 

Thus, even if it is clear the Court does not have jurisdiction

because the taxpayer’s request for an Appeals Office hearing was

untimely, we must still decide the proper basis for dismissal. 

Kennedy v. Commissioner, 116 T.C. 255, 261 (2001).
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In Buffano v. Commissioner, T.C. Memo. 2007-32, we dismissed 

a collection review petition for lack of jurisdiction because the

Secretary did not send a valid notice of intent to levy to the

taxpayer’s last known address. We reasoned that section 6331(d)

provides that at least 30 days before an enforced collection

action by levy, the Secretary is obligated to provide the

taxpayer with a notice of intent to levy, including notice of the

administrative appeals available to the taxpayer. Id. (citing

Davis v. Commissioner, 115 T.C. 35, 37 (2000), and Goza v.

Commissioner, 114 T.C. 176, 179 (2000)). 

Section 6330(a)(2) provides that the notice of intent to

levy must be given in person, left at the person’s dwelling or

usual place of business, or sent by certified or registered mail

to the person’s last known address. Kennedy v. Commissioner,

T.C. Memo. 2008-33. Thus, because the taxpayer’s last known

address was not used, we found the notice of intent to levy

invalid. See Buffano v. Commissioner, supra.

Section 301.6212-2(a) and (b), Proced. & Admin. Regs.,

applies to all notices and documents whenever the term “last

known address” is used. Sec. 301.6212-2(c), Proced. & Admin.

Regs. The regulation provides as a general rule:
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a taxpayer’s last known address is the address that

appears on the taxpayer’s most recently filed and

properly processed Federal tax return, unless the

Internal Revenue Service (IRS) is given clear and

concise notification of a different address. * * *

[Sec. 301.6212-2(a), Proced. & Admin. Regs.]

See Kennedy v. Commissioner, 116 T.C. at 260 n.4; Alta Sierra

Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd.

without published opinion 538 F.2d 334 (9th Cir. 1976).

An inquiry into a taxpayer’s last known address is based on

the relevant facts and circumstances. See Weinroth v.

Commissioner, 74 T.C. 430, 435 (1980). If the Government has

become aware of a change of address, the Commissioner may not

rely on the address listed on the last-filed tax return but must

exercise reasonable care to discern the taxpayer’s correct

address. See, e.g., Pyo v. Commissioner, 83 T.C. 626 (1984). We

examine what the Commissioner knew at the time the notice was

issued, attributing “‘to * * * [the Commissioner] information

which * * * [the Commissioner] knows, or should know, with

respect to a taxpayer’s last known address, through the use of

its computer system.’” Buffano v. Commissioner, supra (quoting

Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988)). 

Where the Court determines that it lacks jurisdiction

because the taxpayer did not receive a valid notice of

determination, the basis for dismissal may depend on whether the

Secretary mailed a section 6320 notice to the taxpayer’s last

known address or otherwise served the notice in the manner
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prescribed by section 6320(a)(2). Kennedy v. Commissioner, 116

T.C. at 261. This also applies to section 6330 notices as the

Commissioner must first issue a final notice of intent to levy

and send it to the taxpayer at the taxpayer’s last known address

before a hearing is held and the notice of determination is

issued. Sec. 6330(a)(2)(C). If the Secretary fails to mail a

section 6320 notice to the taxpayer at his last known address or

otherwise fails to comply with section 6320(a)(2), we dismiss the

case on the ground that the purported section 6320 notice is

invalid. Id.; Kennedy v. Commissioner, T.C. Memo. 2008-33;

Buffano v. Commissioner, T.C. Memo. 2007-32. If the Secretary

mails the section 6320 notice to the taxpayer at the correct

address, we dismiss the case on the ground that the taxpayer

failed to timely request a collection hearing. Pickell v.

Commissioner, T.C. Memo. 2008-60.

However, where the taxpayer timely requests a CDP hearing

but receives an equivalent hearing concluded by a decision

letter, we have held that in certain circumstances the Court may

treat the decision letter as a valid notice of determination and

review the decision letter under section 6330(d). Craig v.

Commissioner, 119 T.C. 252 (2002). In Smith v. Commissioner,

T.C. Memo. 2007-221, the Court stated that a decision letter

issued as a result of an equivalent hearing when a taxpayer was

entitled to, but not given, a section 6330 hearing may constitute
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a “determination” for purposes of section 6330. See Craig v.

Commissioner, supra. In Craig and Smith, the taxpayer received a

notice of intent to levy at his last known address and timely

requested a CDP hearing. However, petitioner was never given the

opportunity to make a timely request for a CDP hearing because

respondent sent the notice of intent to levy to the incorrect

address. By the time petitioner received the notice of intent to

levy, the statutory time for requesting a CDP hearing had already

passed. In addition, there is pertinent caselaw that suggests

that when a taxpayer does not file a timely request for a CDP

hearing, there will be no determination for purposes of sections

6320(c) and/or 6330(d)(1). In Orum v. Commissioner, 123 T.C. 1

(2004), this Court found that when a taxpayer did not timely

request a CDP hearing in response to a notice of intent to levy

mailed to his last known address, the decision in the decision

letter was not a determination for purposes of section

6330(d)(1). In Pragasam v. Commissioner, T.C. Memo. 2006-86,

affd. 239 Fed. Appx. 325 (9th Cir. 2007), the taxpayer did not

timely request a CDP hearing in response to a notice of lien

filing. As a result, we ruled that the decision in the decision

letter was not a determination for purposes of sections 6320(c)

and 6330(d)(1). See also Orum v. Commissioner, supra at 12.

Respondent sent petitioner a Letter 3614, which enclosed a

copy of a report of examination explaining proposed adjustments
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to petitioner’s tax for the years 2002 through 2007. The letter

was sent to petitioner’s Westmoreland address on March 15, 2007. 

On April 7, 2007, 23 days later, respondent issued the notice of

intent to levy and sent it to petitioner’s Wildemere address.

Looking at the facts and circumstances, we find that the IRS had

clear and concise notification of petitioner’s Westmoreland

address when the notice of intent was sent to her Wildemere

address.

The parties stipulated that respondent's decision letter

should be treated as a notice of determination, but Tax Court

jurisdiction cannot be conferred upon the Court by agreement of

parties. Dorn v. Commissioner, 119 T.C. 356 (2002). It is well

settled that this Court can proceed in a case only if we have

jurisdiction and that any party, or the Court sua sponte, can

question jurisdiction at any time, even after the case has been

tried and briefed. See Romann v. Commissioner, 111 T.C. 273

(1998); Normac, Inc. v. Commissioner, 90 T.C. 142 (1988); Brown

v. Commissioner, 78 T.C. 215 (1982). 

In sum, we find that the notice of intent to levy issued to

petitioner with respect to the 2002 and 2003 tax years was not

mailed to petitioner’s last known address, was not received until

after the 30-day period of section 6330(a) expired, and is

therefore invalid. Accordingly, we will dismiss this case for

lack of jurisdiction. 
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To reflect the foregoing,

An appropriate order of

dismissal for lack of

jurisdiction will be entered.