secc corporation petitioner v commissioner of internal revenue respondent docket no filed date in this case brought under sec_7436 p seeks our determination of the proper classification of p’s workers for employment_tax purposes and certain related issues r sent p a letter date letter which stated that p’s employ- verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports ment tax_liabilities as determined by appeals will be assessed the letter was not sent by certified or registered mail p peti- tioned this court more than days after r sent the date letter held the date letter was a determina- tion relating to the classification of p’s workers for employ- ment tax purposes held further the determination related to matters specified in sec_7436 over which we have jurisdiction held further the determination related to an actual controversy in connection with an audit which was part of an examination held further because r did not send p a notice_of_determination by certified or registered mail the day period for filing an action in the court provided in sec_7436 is inapplicable and the petition is timely held further sec_7436 applying the principles of sev- eral listed internal_revenue_code sections to sec_7436 does not alter our holdings stated above held further r’s motion to dismiss for lack of jurisdiction and p’s cross-motion to dismiss for lack of jurisdiction will be denied alvah lavar taylor for petitioner vladislav m rozenzhak for respondent opinion colvin judge this case is before the court on respond- ent’s motion to dismiss for lack of jurisdiction and peti- tioner’s cross-motion to dismiss for lack of jurisdiction the issue for decision is whether we have jurisdiction to deter- mine whether respondent’s worker classification determina- tion was correct we hold that we have jurisdiction background the record establishes and or the parties do not dispute the following petitioner was a california corporation with its principal office in corona california when it filed the petition a petitioner’s business and petitioner’s workers during the tax periods in issue petitioner operated a busi- ness connecting cable lines cable splicing for corporate and residential customers from through petitioner unless otherwise indicated section references are to the internal rev- enue code in effect for the years in issue and rule references are to the tax_court rules_of_practice and procedure we round monetary amounts to the nearest dollar verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner employed to workers whom it paid to perform cable splicing services during the tax periods in issue petitioner treated its workers in dual capacities as employees and as independent contractors ie as lessors to petitioner of tools and vehicles they were required to provide in connection with providing services for petitioner petitioner reported taxable hourly wages for its workers on forms w-2 wage and tax state- ment petitioner also made payments to its workers for rental of tools and vehicles equipment lease payments peti- tioner did not classify its workers as employees for purposes of equipment rental petitioner reported the equipment lease payments on forms 1099-misc miscellaneous income as nonemployee compensation_for and as rent for and b the irs examination and appeals process in respondent audited petitioner’s form sec_941 employer’s quarterly federal tax_return for all tax periods in and on date respondent sent petitioner an audit report 30-day_letter stating that the examination_division had concluded that petitioner is liable for the following federal_insurance_contributions_act and withholding_tax increases imposed under sec_3101 sec_3111 and sec_3402 and penalties as a result of respondent’s classification of the equipment lease payments to petitioner’s workers as wages tax period ending proposed tax increase proposed sec_6656 penalty total dollar_figure big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number dollar_figure big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number big_number verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports on the assumption that the equipment lease payments were properly classified as wages the 30-day_letter also said that those payments did not meet the requirements of sec_62 for treatment as reimbursements under an accountable_plan and therefore were subject_to employment_taxes the 30-day_letter said that the examination_division had made a final_determination on this issue but also said that t hese changes to your employment_taxes are not based on a worker classification determination on date petitioner filed a protest with the examination_division and requested a hearing with the internal_revenue_service irs appeals_office in the pro- test petitioner contended that for the periods in issue the equipment lease payments were not properly classified as wages its workers were independent contractors with respect to both the amounts paid to them as wages and the equipment lease payments petitioner qualifies for relief under the revenue act of pub_l_no sec_530 stat pincite ra ’78 sec_530 and sec_3402 and sec_3509 and petitioner is not liable for any penalties in date appeals acknowledged receipt of the case petitioner’s representative met with an appeals officer peti- tioner’s representative notified the appeals officer that it was continuing to raise all of the issues stated in its protest on date appeals returned the case to the examination_division for further consideration because appeals had concluded that additional development by the examination_division of the issue at hand is needed the case was returned to appeals on date an undated appeals case memo states in part the following were the workers at issue independent contractors no taxpayer’s argument that w-2_wages paid to the employees were erroneously classified as wages to common_law employees does not have merit there is no evidence to support taxpayer’s position that the workers were in business for themselves were the payments issued to the workers for tool and vehicle rentals issued to workers working under a dual capacity common_law_employee and independent_contractor no taxpayer’s argument is without merit there is no evidence to sup- port taxpayer’s argument that the workers worked under a dual verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner capacity there is no evidence showing that the taxpayer and the workers had a bona-fide rental contract does the taxpayer qualify for relief under sec_530 sec_3509 or sec_3402 no taxpayer has not been able to substantiate his position that the payments were issued to bona-fide independent contractors by letter dated date appeals informed petitioner that the employment_tax liabilities would be assessed in the amounts determined the date letter states unfortunately we were unable to reach an agreement on your case the employment_tax liability as determined by appeals will be assessed and you will receive a notice_and_demand for payment of the tax pen- alty and interest owed if you would like to challenge our determination in court you may file a complaint in the united_states district_court or the united_states court of federal claims if you decide to do this you must first pay at a minimum the employment_tax assessment attributable to one employee for any one quarter and file a claim_for_refund of the tax once the claim_for_refund is denied or months elapse without any_action by the service you may initiate suit the date letter was not sent by certified or reg- istered mail petitioner filed a petition in this court on feb- ruary respondent did not issue petitioner a letter notice_of_determination of worker classification ndwc with respect to the tax periods in issue on date respondent sent petitioner a notice of adjustment assessing the above tax increases and penalties discussion the tax_court may exercise jurisdiction only to the extent expressly provided by congress see sec_7442 66_tc_61 see also rule a however we have the authority to determine whether we have jurisdiction over a particular case 83_tc_309 a positions of the parties both parties assert that this court should dismiss this case for lack of jurisdiction because respondent did not issue an ndwc despite the superficial similarity of those motions the parties have sharply contrasting views of the verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports effect of dismissal respondent contends that dismissal would deprive this court of jurisdiction over this case leave the assessment in place and allow the irs to proceed with collection in contrast petitioner contends that the failure to issue an ndwc means the assessment is invalid and the irs may not collect the disputed employment_taxes unless and until an ndwc is sent under petitioner’s theory issuance of an ndwc would trigger the right to file a petition and seek our determination under sec_7436 our jurisdiction is not expanded or contracted by the posi- tions of the parties thus it is not dispositive that both par- ties claim that we lack jurisdiction see 121_tc_89 aff ’d 425_f3d_1203 9th cir we will independently decide whether we have jurisdiction b sec_7436 sec_7436 governs proceedings in the court for deter- mining employment status sec_7436 provides sec_7436 creation of remedy -if in connection with an audit of any person there is an actual controversy involving a determination by the secretary as part of an examination that- one or more individuals performing services for such person are employees of such person for purposes of subtitle c or such person is not entitled to the treatment under subsection a of sec_530 of the revenue act of with respect to such an indi- vidual upon the filing of an appropriate pleading the tax_court may determine whether such a determination by the secretary is correct and the proper amount of employment_tax under such determination any such redeter- mination by the tax_court shall have the force and effect of a decision of the tax_court and shall be reviewable as such generally we have jurisdiction under sec_7436 to determine whether an individual providing services to a principal is that principal’s employee for purposes of subtitle c whether the principal if an employer is entitled to relief under ra ’78 sec_530 and if the individual pro- viding services is an employee the proper amounts of employment_taxes which relate to the commissioner’s deter- mination concerning worker classification sec_7436 in deciding whether we have jurisdiction we are mindful that in response to the expressed intent of congress to pro- verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner vide a convenient prepayment hearing this court and the courts of appeals have given the jurisdictional provisions a broad practical construction rather than a narrow technical meaning 68_tc_779 fn refs omitted therefore we should adopt a construction which will permit the court to retain jurisdiction without doing violence to the statutory language 140_tc_48 c whether the date letter was a determination the commissioner’s determination of worker classifica- tion provides the predicate for our jurisdiction under sec_7436 respondent states that the date letter is a letter which the irs uses as a closing letter in employment_tax cases if worker classification and ra ’78 sec_530 are not at issue both parties argue though with sharply conflicting views of the effect of prevailing that issuance of an ndwc is required to give this court jurisdiction under sec_7436 we disagree that we have jurisdiction under sec_7436 only when the commissioner has issued an ndwc sec_7436 limits our jurisdiction to cases in which there has been among other requirements a determination by the secretary in other contexts we have held that the absence of a document bearing a particular title or format does not mean that no determination has been made see eg 142_tc_46 letters even though stating they were not final determinations with respect to interest abatement constituted final deter- minations for purposes of sec_6404 138_tc_295 135_tc_70 a letter rejecting whistleblower claims was a determination for purposes of sec_7623 131_tc_47 119_tc_252 a form decision letter issued after an equivalent_hearing constituted a determination conferring jurisdiction under sec_6330 117_tc_159 a written notice to proceed with a collection action constituted a determination under sec_6330 verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports legislative_history accompanying the taxpayer_relief_act_of_1997 pub_l_no sec a stat pincite enacting sec_7436 makes abundantly clear that the date letter was a determination sec_7436 originated in the house of representatives h_r 105th cong in h_r rept no pincite 1997_4_cb_319 the explanation of provision states in pertinent part the bill provides that in connection with the audit of any person if there is an actual controversy involving a determination by the irs as part of an examination that a one or more individuals performing serv- ices for that person are employees of that person or b that person is not entitled to relief under sec_530 of the revenue act of the tax_court would have jurisdiction to determine whether the irs is cor- rect for example one way the irs could make the required determina- tion is through a mechanism similar to the employment_tax early_referral procedures see announcement and announcement emphasis added the senate report includes the paragraph quoted above from the house report and also states a failure to agree would also be considered a determination for this purpose s rept no pincite 1997_4_cb_1081 emphasis added that is exactly what happened here the date letter states that they were unable to reach an agreement in this case emphasis added the con- ference agreement h_r conf rept no pincite 1997_4_cb_1457 contains language essentially identical to that quoted above from the house report in summary the 30-day_letter prepared by the examina- tion division and the appeals case memo both explain in detail the disagreement with petitioner’s position after the staff of the joint_committee on taxation stated in its general ex- planation of tax legislation enacted in pincite j comm print blue_book a failure to agree would also be considered a deter- mination for this purpose to the extent permitted under tax_court rules emphasis added none of the committee reports cited in the text in- cludes the italicized phrase the supreme court said in united_states v woods u s ll ll 134_sct_557 that the blue_book like a law review article may be relevant to the extent it is persua- sive this blue_book phrase does not alter our conclusion stated in the text verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner saying that unfortunately we were unable to reach an agreement on your case the date letter states that employment_tax liabilities as determined by appeals will be assessed the house report made clear that deter- minations for purposes of sec_7436 may be made in non- traditional ways the senate committee report states that a failure to agree would be considered a determination a phrase that is indistinguishable from the words we were unable to reach an agreement in the date letter we conclude that respondent made a determination in this case our analysis of sec_7436 is buttressed by consideration of the twofold statute_of_limitations in sec_6532 for filing a refund_suit the provision given there is as follows with bracketed a and b added by us to show the two dis- tinct rules in the statute sec_6532 suits by taxpayers for refund - general_rule -no suit or proceeding under sec_7422 for the recovery_of any internal revenue tax penalty or other sum shall be begun a before the expiration of months from the date of filing the claim required under such section unless the secretary renders a decision thereon within that time nor b after the expiration of years from the date of mailing by cer- tified mail or registered mail by the secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates emphasis added rule b provides a hard-and-fast two-year deadline for filing suit that commences only with the certified mailing of a formal notice but the six-month bar of rule a is subject_to being lifted if the secretary simply renders a decision this provision of rule a does not require a notice rather a decision and includes no provision as to certified mailing or any other formality see 189_fsupp_626 d conn skopil v united_states u s tax cas cch para d or thus a taxpayer who files a refund claim and one month in arguing that we lack jurisdiction under sec_7436 the dissenting opinion does not cite or discuss sec_7436 which establishes our worker classification jurisdiction or the legislative_history underlying it which ex- pressly shows that we have jurisdiction under circumstances like those present here verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports later gets an informal decision by the irs under sec_6532 a may file suit even without receiving a formal notice of disallowance under sec_6532 b the features of these rules are similar to the features of sec_7436 and b sec_7436 provides a hard- and-fast 90-day deadline for filing suit that commences only if the secretary sends by certified or registered mail notice of a determination yet sec_7436 permits the filing of suit simply upon the existence of an actual con- troversy involving a determination -without regard to cer- tified mailing and without regard to any formal notice thus a taxpayer who is the subject of a determination by the irs under sec_7436 can file suit without receiving a notice_of_determination under sec_7436 finally neither 425_f3d_1203 115_tc_287 nor 112_tc_1 establishes that an ndwc must be sent before we have jurisdiction to make a worker classification determination under sec_7436 in none of those cases did the court identify or decide the issue present here ie whether we necessarily lack jurisdiction where no ndwc was sent therefore none of those opinions establishes whether we have jurisdiction where no ndwc was sent but a determination was otherwise made similarly we do not consider tree-tech inc v commissioner tcmemo_2011_162 slip op pincite a collection_due_process case in which we cited 115_tc_287 to have decided the issue now before the court we disregard the commissioner’s statement in notice_2002_5 2002_1_cb_320 that b ecause the notice_of_determination constitutes the service’s determination described in sec_7436 it is a jurisdictional prerequisite for seeking tax_court review of determinations regard- ing worker classification sec_530 treatment and the proper amount of em- ployment tax under those determinations we owe no deference to what an administrative agency says about our jurisdictional bounds see 280_f3d_1027 d c cir this is so even if an agency directly or indirectly interprets the bounds of our jurisdiction through the implementation of regulations con- struing a statute which it administers see also 494_us_638 the delegation of power to an agency to ad- minister a statute does not empower that agency to regulate the scope of the judicial power vested by the statute the dissenting opinion argues that we lack jurisdiction because the irs did not intend for us to have verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner d whether the determination related to matters specified in sec_7436 over which we have jurisdiction sec_7436 provides our jurisdiction where among other requirements the secretary has determined whether one or more individuals performing services for such person are employees of such person for purposes of subtitle c or such person is not entitled to the treatment under subsection a of sec_530 of the revenue act of with respect to such an indi- vidual upon the filing of an appropriate pleading the tax_court may determine whether such a determination by the secretary is correct and the proper amount of employment_tax under such determination the determination in this case dealt with worker classifica- tion disputes between petitioner and the examination divi- sion and the appeals_office identified above including whether petitioner’s workers can serve in a dual capacity whether petitioner’s workers are employees with respect to any of the amounts paid to them as compensation and whether petitioner qualifies for relief under ra ’78 sec_530 and sec_3402 and sec_3509 we conclude that the dispute between the parties includes matters specified in sec_7436 over which we have jurisdiction jurisdiction see dissenting op p the concurring opinion which is joined by of the judges who voted yes makes a similar point see con- curring op pp and we note that it is the statute not the irs that grants us jurisdiction the dissenting opinion finds fault with what it calls the majority’s dual use of the word ‘determination’ to refer both to the irs decision con- cerning worker classification and to the date letter see dis- senting op pp there is no inconsistency in this usage the irs makes an internal determination concerning worker classification before it issues a letter that conveys the determination to the taxpayer because it is clear to us that the date letter shows that a determination requisite to our jurisdiction was made we need not decide whether or when the irs made a determination for purposes of sec_7436 before sending the date letter verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports e whether the determination related to an actual contro- versy in connection with an audit and was part of an examination sec_7436 provides in part that i f in connection with an audit of any person there is an actual con- troversy involving a determination by the secretary as part of an exam- ination the essential facts relating to this point are during the tax periods at issue petitioner treated its workers dually as employees and as independent providers of rental equipment in the 30-day_letter ms buck speaking for the examina- tion division rejected petitioner’s approach and treated peti- tioner’s workers as employees with respect to the equipment lease payments in the protest petitioner continued to assert the position the examination_division had rejected in the 30-day_letter and added contentions disputing that its workers were employees with respect to any of petitioner’s payments to them and claiming entitlement to relief under ra ’78 sec_530 and sec_3402 and sec_3509 and the case was subsequently considered by the appeals_office and reconsidered by the examination_division and the appeals_office during which time petitioner continued to assert all of the positions included in the protest on the basis of this series of events we conclude that the determination related to an actual controversy in connection with an audit and was part of an examination as required by sec_7436 f whether the petition was timely sec_7436 imposes a 90-day limit on filing a peti- tion where the commissioner sends a notice_of_determination by certified or registered mail but otherwise imposes no spe- cific time limit on filing a petition with this court specifi- cally sec_7436 provides if the secretary sends by certified or registered mail notice to the peti- tioner of a determination by the secretary described in subsection a no proceeding may be initiated under this section with respect to such in staffmore llc v commissioner tcmemo_2013_187 we con- cluded that the court had no jurisdiction over a determination as to em- ployment status because there was no irs audit or examination in this case however there was an audit verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner determination unless the pleading is filed before the 91st day after the date of such mailing petitioner filed its petition more than days after receiving the date letter however that letter was not sent by certified or registered mail therefore the 90-day limitation does not apply in this case the fact that sec_7436 does not require filing a petition within days after a determination is made unless the notice is sent by certified or registered mail contrasts with sec_6212 relating to our deficiency jurisdiction however sec_7436 closely resembles sec_7428 sec_7476 sec_7477 sec_7478 and sec_7479 which all address the time for bringing actions for declaratory judgments sec- tion sec_7428 sec_7476 sec_7478 and sec_7479 each create a judicial remedy even in the absence of a determination sec_7477 like sec_7436 requires a determination all of these declaratory_judgment provisions like sec_7436 have almost identical rules establishing the time for bringing an action stating almost identically that if the secretary sends a notice of a determination by registered or certified mail then the taxpayer must commence his or her action in the tax_court within days of such mailing the similarity of sec_7436 to these other sections eliminates any impulse we might have had to read part of sec_6212 into sec_7436 our discussion of sec_6532 supra part c also supports our analysis here we conclude that the 90-day limitation does not apply in this case because no sec_7478 sec_7477 sec_7479 all provide if the secretary sends by certified or registered mail notice of his determination no proceeding may be initiated under this section unless the pleading is filed before the 91st day after the date of such mailing sec_7476 is slightly different but materially the same sec_7476 and sec_7478 both provide in a case of actual controversy involving- a particular determination by the secretary or a failure by the secretary to make a particular determination upon the filing of an appropriate pleading the tax_court may make a dec- laration regarding the particular determination or lack thereof sec_7476 is slightly different but materially the same sec_7477 provides in case of an actual controversy involving a particular determination by the secretary upon the filing of an appropriate pleading the tax_court may make a declaration regarding the particular determination sec_7436 is slightly different but materi- ally the same verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports notice_of_determination was sent by certified or registered mail and thus the petition is timely g whether sec_7436 alters our holdings stated above sec_7436 provides that the principles of several code sections relating to assessment and collection etc apply to sec_7436 specifically sec_7436 provides as follows sec_7436 special rules - restrictions on assessment and collection pending action etc -the principles of subsections a b c d and f of sec_6213 sec_6214 sec_6215 sec_6503 sec_6512 and sec_7481 shall apply to proceedings brought under sec_7436 in the same manner as if the secretary’s determination described in subsection a were a notice_of_deficiency sec_7436 provides that these other sections shall apply in the same manner as if the secretary’s determina- tion described in subsection a were a notice_of_deficiency emphasis added importantly it does not say as if the notice described in subsection a were a notice_of_deficiency in keeping with its conclusion that the analysis of the opinion of the court simply do es not work see dissenting op pp the dis- senting opinion asks if the date letter had been sent by cer- tified mail would it have triggered that deadline even though it did not purport to be a determination see id p and would the undisclosed sec_7436 determination the court found here have allowed the irs to assess after days in the absence of a petition see id we are satisfied that the analysis herein does not cause the administrative problems posed in the dissenting opinion in raising those questions the dissenting opinion does not cite or discuss subsecs a and b of sec_7436 subsec a pro- vides our jurisdiction simply if there has been a determination but appli- cation of the 90-day rule is not triggered so easily instead under subsec b the 90-day period applies only if the secretary sends notice of the de- termination to the taxpayer by certified or registered mail the statute properly interpreted provides clear and logical answers to the questions posed by the dissenting opinion first if the irs sends the taxpayer a letter by certified or registered mail including clear notice that the irs has made a determination of worker classification it triggers the jurisdictional period for filing a petition in our court second if the irs does not send a letter by certified or registered mail including clear notice that the irs has made a determination of worker classification the irs may not assess after days absent a petition because sec_7436 re- quires that the secretary first send notice to the taxpayer verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner in other words jurisdiction hinges upon the making of a determination not necessarily the mailing of a notice to consider the application of this paragraph to the present case we will first identify two principles of sec_6213 the first principle of sec_6213 is that a tax- payer ha sec_90 or days after the notice_of_deficiency is mailed to file a petition as stated supra part f sec_7436 imposes a 90-day limit on filing a petition where the commissioner sends a notice by certified or registered mail but otherwise does not impose a 90-day limit to treat sec_7436 as imposing the 90-day limit that appears in sec_6213 on sec_7436 would require two leaps of faith first that congress enacted an express rule sec_7436 and then rewrote that rule by saying principles of other sections apply and second that the words of the title to the paragraph restrictions on assessment and collection pending action were not well chosen or were too narrowly phrased we conclude that this principle of sec_6213 does not cause this court to lack jurisdiction where a petition is filed more than days after a determination where the commissioner did not exercise the right under sec_7436 to trigger a 90-day limitation period by sending the notice by certified or registered mail the second principle of sec_6213 is that if a peti- tion is filed the irs may not assess tax resulting from a the first sentence of sec_6213 provides as follows sec_6213 time for filing petition and restriction on assess- ment -within days or days if the notice is addressed to a per- son outside the united_states after the notice_of_deficiency authorized in sec_6212 is mailed not counting saturday sunday or a legal holi- day in the district of columbia as the last day the taxpayer may file a petition with the tax_court for a redetermination of the deficiency the second sentence of sec_6213 provides as follows sec_6213 time for filing petition and restriction on assess- ment - except as otherwise provided in sec_6851 sec_6852 or sec_6861 no assessment of a deficiency in respect of any_tax imposed by sub- title a or b chapter or and no levy or proceeding in court for its collection shall be made begun or prosecuted until such notice has been mailed to the taxpayer nor until the expiration of such 90-day or 150-day period as the case may be nor if a petition has been filed with the tax_court until the decision of the tax_court has continued verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports deficiency until the tax_court case commenced by filing a petition with respect to that deficiency is final to treat sec_7436 as imposing this restriction on assessment requires neither of the leaps of faith just stated there is no contrary rule on assessment in sec_7436 that would be rewritten on the basis of application of principles of another section and the title to the paragraph restrictions on assessment and collection pending action directly suggests that this second principle of sec_6213 a -ie if a petition is filed the irs may not assess tax determined to be owing as a result of a deficiency until the tax_court case is final- applies to sec_7436 because of sec_7436 in the context of sec_7436 this appears to bar assessment and collection of employment_tax determined to be owing after the filing of a form_941 in none of the sections cross-referenced by sec_7436 is there any suggestion that a 90-day or any other time limit applies where a notice was not sent by cer- tified or registered mail nor that a determination may be made only through a notice_of_determination thus we con- clude that application by sec_7436 of the principles of several code sections relating to assessment and collec- tion etc to sec_7436 does not limit our jurisdiction to cases in which the commissioner sends a formal notice_of_determination eg a letter or imposition of the day period where the commissioner does not send a notice by certified or registered mail become final citing sec_7436 the dissenting opinion states that we should treat a worker classification determination as if it were a deficiency determina- tion in an income_tax case because congress borrowed heavily from the statutes controlling income_tax deficiency cases see dissenting op pp following from that assumption the dissenting opinion relies on cases applying deficiency procedures such as 52_tc_358 see dissenting op pp however the dissenting opinion overlooks two essential points the text of sec_7436 and b differs from that in the statutes governing deficiency procedures and in sec_7436 congress did not list sec_6212 as one of the sections the principles of which are made applicable to sec_7436 the omission of sec_6212 from sec_7436 is significant because sec_6212 provides that if the secretary determines a deficiency he is authorized to send a notice_of_deficiency by certified or registered mail the words send and notice in sec_7436 do not appear in sec_7436 which establishes our verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner h conclusion we hold that we have jurisdiction over this case respond- ent’s motion and petitioner’s cross-motion will be denied to reflect the foregoing an appropriate order will be issued reviewed by the court thornton halpern foley vasquez gale wherry kroupa holmes gustafson paris morrison buch lauber and nega jj agree with this opinion of the court halpern j concurring i join the majority opinion without reservation i write only to emphasize that not only is the majority’s analysis of our jurisdiction under sec_7436 correct as a matter of law it is also correct as a matter of tax policy as the majority states see op ct note we owe no def- erence to what an administrative agency says about our jurisdictional bounds moreover respondent’s position reflected both in this case and in notice_2002_5 2002_1_cb_320 that only his issuance of a notice_of_determination as described in notice_2002_5 may confer jurisdiction on this court to resolve a worker classification or ra ’78 sec_530 issue would improperly permit the commissioner to deter- mine in his sole discretion whether a taxpayer shall have access to this court in order to resolve any such issue raised on audit were we to adopt respondent’s position the commissioner by refusing to issue a notice_of_determination would be able to deny the taxpayer access to this court which he may be tempted to do whenever he feels his chance of success on a worker classification or ra ’78 sec_530 issue is better in either the district_court or the court of federal claims than in this court there is no basis in sec_7436 or as a matter of policy for granting the commissioner this forum shopping discretion and it would thwart the obvious congressional intent embodied in that provision to permit taxpayers in their discretion to litigate in this court jurisdiction petitioner -a pleading may be filed under this section by the continued verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports worker classification and ra ’78 sec_530 issues that the commissioner has raised on audit thornton colvin vasquez gale wherry kroupa holmes gustafson morrison buch and lauber jj agree with this concurring opinion goeke and kerrigan jj dissenting our primary dis- agreement with the opinion of the court stems from its insistence on cutting our jurisdiction under sec_7436 from whole cloth the structure of the statute indicates that we should treat a worker classification determination as if it were a deficiency determination in an income_tax case instead of following the statute’s mandate the opinion of the court applies a new approach to the jurisdictional question we disagree with that approach and respectfully dissent i we believe the irs must issue a notice_of_determination of worker classification to trigger our jurisdiction under sec_7436 the opinion of the court finds that sec_7436 does not require the issuance of a notice_of_determination as a pre- requisite for our jurisdiction this conclusion is not reconcil- able with sec_7436 which provides the following direc- tive sec_7436 special rules - restrictions on assessment and collection pending action etc -the principles of subsections a b c d and f of sec_6213 sec_6214 sec_6215 sec_6503 sec_6512 and sec_7481 shall apply to proceedings brought under this section in the same manner as if the secretary’s determination described in sub- section a were a notice_of_deficiency this paragraph references the analogous procedural sections that prevent the irs from assessing and collecting income_tax deficiencies unless and until it sends proper notice to the taxpayer these restrictions and deadlines simply do not work without a notice_of_determination requirement we acknowledge that the statute does not explicitly reference sec_6212 which contains the notice of person for whom the services are performed sec_7436 emphasis added verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner deficiency provisions but we think the statute incorporates its principles nonetheless the statute directs us to apply the restrictions in the same manner as if the secretary’s deter- mination were a notice_of_deficiency we think this means that a notice_of_determination should set the restric- tion deadlines under sec_7436 just as a notice of defi- ciency sets the restriction deadlines for income_tax assess- ment and collection sec_6213 prevents the irs from assessing and col- lecting tax before it has sent a notice_of_deficiency it also provides the taxpayer days from the notice_of_deficiency date to petition the tax_court would the undisclosed sec_7436 determination the court found here have allowed the irs to assess after days in the absence of a petition sec- tion a provides that a notice_of_deficiency suspends the running of the period of limitations for the irs to assess and collect would a determination the irs had not disclosed to a taxpayer have the same effect sec_7436 provides that a taxpayer must file a petition within days of a notice_of_determination if the irs sent it by certified mail if the date letter had been sent by certified mail would it have triggered that deadline even though it did not pur- port to be a determination the opinion of the court raises all these questions but dismisses them in note the opinion of the court points out that under sec_7436 the 90-day window to file a petition begins only after the irs has sent notice of its determination by cer- tified or registered mail according to the opinion of the court this means that the 90-day period will not begin if the irs does not send a letter by certified or registered mail including clear notice that the irs has made a determination of worker classification see op ct note emphasis added although the plain language of sec_7436 requires only notice the opinion of the court reads a clear notice requirement into the statute in responding to our questions in so doing the opinion reinforces our point by requiring clear notice we can avoid the administrative prob- lems we discussed above if we accept jurisdiction in the absence of clear notice as the court has in this very case the administrative problems return here the irs failed to send clear notice instead it sent an ambiguous letter that neither party believed was a notice nevertheless the court verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports finds that the letter provided notice of a determination thus if the irs had sent the letter by certified mail the court presumably would have found that it triggered the 90-day period would the court have decided not to recharacterize the letter if the irs had used certified mail the court’s approach also creates an open-ended period to file a petition which has no touchstone in the deficiency procedures the court ignores the possibilities for abuse that an unlimited period to bring action will create we should avoid these and other problems by simply recognizing that only a clear notice_of_determination can trigger our jurisdic- tion under sec_7436 ii the opinion of the court holds that a determination trig- gers our jurisdiction but it uses the word determination to refer to two different events the opinion of the court concludes that our jurisdiction turns on whether the irs has made a determination but it is not clear what the court thinks a determination is the opinion of the court identifies the issue here as whether we have jurisdiction to determine whether respond- ent’s worker classification determination was correct see op ct p emphasis added the opinion of the court’s first holding is the date letter was a determination relating to the classification of p’s workers for employment_tax purposes see id p emphasis added these two excerpts demonstrate the opinion’s dual use of the word determination in the first it refers to the irs decision regarding worker classification in the second it refers to the letter that communicated that decision which of these things does the court believe triggers our jurisdiction if it is the first the administrative problems we described above return see supra pp how could we enforce time limits for filing against taxpayers who were unaware the commissioner had made a decision if it is the second we think the opinion of the court is confusing the terms determination and notice_of_determination semantically speaking a letter cannot be a determination a determina- tion is a decision-an abstraction a letter is tangible a letter can communicate a determination or serve as evidence of a determination but it cannot itself be a determination if verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner the letter triggered our jurisdiction we are not sure the court disagrees with our conclusion that notice is required it simply chooses to call the notice_of_determination a deter- mination iii the date letter was not a notice of determina- tion and consequently it did not trigger our jurisdiction the court finds that the date letter was a deter- mination but we think the proper analysis is whether it was a notice_of_determination to qualify as a notice of determina- tion we think that a letter must at a minimum actually provide notice of a determination the date letter did no such thing the letter did not notify secc that the irs had made a determination if it had secc would have simply petitioned this court for review of that determination instead secc has petitioned us to compel the irs to issue a notice_of_determination the commissioner used a letter reserved for closing out disputes not involving worker classi- fication determinations if anything the letter notified secc that the irs had made no worker classification determina- tion in deciding its case iv the court should not have recharacterized the irs cor- respondence with secc congress has given our court the authority to review determinations of worker classification in creating the administrative rules governing this jurisdiction congress borrowed heavily from the statutes controlling income_tax deficiency cases specifically sec_7436 incorporates the restrictions on assessment and collection that apply in such cases in the light of congress’ apparent intention to create parallel administrative regimes for notices of determination and notices of deficiency we think we should evaluate notices of determination the same way we evaluate notices of deficiency suppose after examining a taxpayer’s federal_income_tax return the irs assessed additional income_tax without fol- lowing the deficiency procedures established by sections next suppose that the irs mailed that taxpayer a notice of the additional_assessment we would not treat that letter as a notice_of_deficiency and we have found that verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports the court is without jurisdiction under those circumstances see 52_tc_358 kane v commissioner tcmemo_1989_272 now substitute the type of tax contemplated by sec_7436 for the types of tax subject_to the deficiency procedures referenced above under similar circumstances the court is doing exactly the opposite of what we have done with respect to taxes subject_to the deficiency procedures and to make matters worse it is doing so in the face of express statutory language instructing us to treat worker classification deter- minations like notices of deficiency in income_tax deficiency cases a notice_of_deficiency is the taxpayer’s ticket to our court if the irs has not sent a notice_of_deficiency we do not have jurisdiction over the dis- pute we have on occasion decided whether an ambiguous letter from the irs was a notice_of_deficiency that triggered our jurisdiction in each of those cases we relied heavily on the irs intent in reaching our conclusion see lerer v commissioner t c pincite kane v commissioner tcmemo_1989_272 when the irs sends a letter that neither purports to be nor is intended to be a notice_of_deficiency we do not recharacterize the letter as a notice_of_deficiency we simply dismiss the case for lack of jurisdiction here the irs did not intend to send a notice of worker classification deter- mination and the letter it sent did not purport to be such a notice in fact the irs sent a letter reserved for cases not involving worker classification determinations we disagree with the court’s decision to recharacterize that letter the opinion of the court does not dispute that the irs did not intend the date letter to be a notice of deter- mination but it nevertheless concludes that the letter trig- gered our jurisdiction instead of citing cases involving notices of deficiency the opinion of the court cites a whistle- blower case and two collection_due_process cases in which we found that unofficial letters were notices of determination see op ct p those cases are inapposite because they involve statutes that do not incorporate the restrictions on assessment applicable in income_tax deficiency cases in the light of congress’ explicit instruction to treat worker classi- the parties also agree that the irs did not intend the letter to be a notice of worker classification determination verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie secc corp v commissioner fication determinations as if they were notices of deficiency we find our notice_of_deficiency jurisprudence more relevant in keeping with our notice_of_deficiency cases we would find that the irs intent is the most important factor in character- izing an ambiguous notice the irs did not intend the date letter to be a notice_of_determination and the letter did not purport to be a notice_of_determination accordingly we would find that it did not trigger our jurisdiction under sec_7436 the irs bears the burden of providing proper notice before assessing tax if it has made a determination it has no rea- son not to notify the taxpayer if the irs fails to issue a timely notice applicable statutes of limitation may bar its later assessment moreover dismissing the case here would not leave the taxpayer without_recourse secc would have the same options as a taxpayer challenging an income_tax deficiency whose case had been dismissed because the irs had not issued a notice_of_deficiency it could bring a refund case attacking the invalid assessment file for an injunction against the assessment seek an abatement under sec_6404 or contest the assessment’s legality in a collection_due_process case pursuant to sec_6330 v we should not delve into the administrative record to determine whether the irs made a determination congress has provided an avenue for employers to reimburse their employees for work-related expenses a tax- payer must simply follow the accountable_plan rules outlined in sec_1_62-2 income_tax regs the irs initially ana- lyzed this case as an accountable_plan dispute secc only later argued that its workers were dual-capacity employees or independent contractors under the opinion of the court’s approach any taxpayer in an accountable_plan case could make these arguments and transform its case into a worker classification dispute we think we should permit the irs to decide whether the taxpayer’s arguments warrant a worker classification determination the workers at issue here performed a single task and secc calculated both payments on the number of hours they sec_6213 provides for this remedy by waiving the sec_7421 anti-in- junction provisions verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie united_states tax_court reports spent performing that task secc self-reported the workers as employees on its employment_tax returns the irs could have reasonably concluded that the worker classification arguments were frivolous and did not justify a determina- tion instead of permitting this result the court combs through the administrative record to discover whether the irs should have issued a notice_of_determination this approach sets a dangerous precedent that may require us to review the administrative record every time a taxpayer makes a worker classification argument and the irs chooses not to issue a notice_of_determination we believe we should permit the irs to decide when its examination warrants a notice_of_determination if it improperly fails to issue a notice it will face the consequences of an invalid assessment vi conclusion sec_7436 explicitly incorporates many of the rules that apply in income_tax deficiency cases in fact the incorporated material dwarfs the original material in the statute we believe that this structure reflects congress’ intent to create identical schemes for our review of worker classification determinations and income_tax deficiency determinations instead of relying on the principles that govern our income_tax deficiency cases the opinion of the court has created a new approach to determine whether we have jurisdiction because we disagree with that approach we respectfully dis- sent f verdate mar apr jkt po frm fmt sfmt v files boundv wit bv864a seccco jamie