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Bryan v. Comm'r of Internal Revenue

United States Tax Court
Nov 15, 2022
No. 13400-21L (U.S.T.C. Nov. 15, 2022)

Opinion

13400-21L

11-15-2022

MITCH LEE BRYAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent


ORDER

Elizabeth A. Copeland Judge

On July 27, 2022, respondent filed with the Court a Motion to Dismiss for Lack of Jurisdiction (Motion to Dismiss), on the ground that the Notice of Determination contested by petitioner in his Petition (which Notice sustained earlier notices of intent to levy) was filed in violation of the automatic stay imposed under 11 U.S.C. § 362(a)(1).

This case was called at the September 26, 2022, Trial Session of the Court in Las Vegas, Nevada. There was no appearance by or on behalf of petitioner, but the Court retained jurisdiction upon learning from respondent's counsel of a new mailing address for petitioner. On September 29, 2022, the Court issued an Order requiring petitioner to respond to the Motion to Dismiss by October 26, 2022. Petitioner did not respond by that date and still has not responded.

Background

On August 5, 2019, respondent sent petitioner two versions of a Notice of Intent to Levy and Notice of Your Right to a Hearing, each with respect to a different set of tax years (levy notices). Petitioner submitted a timely Request for a Collection Due Process (CDP) Hearing with respect to each levy notice. The IRS Settlement Office assigned to the requests held the CDP hearing but, when petitioner failed to respond to requests for further information, issued a Notice of Determination to petitioner on March 9, 2021 (notice of determination), sustaining the levy notices.

Unbeknownst to respondent, on December 23, 2020, petitioner filed a voluntary petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the District of Utah (bankruptcy court). The bankruptcy court granted a discharge to petitioner on April 8, 2021.

Discussion

When an individual files a petition for Chapter 7 bankruptcy, 11 U.S.C. § 362(a)(1) automatically imposes a stay on "the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy] case . . . ." The stay lasts until the bankruptcy case is closed or dismissed, or a discharge is granted or denied. 11 U.S.C. § 362(c)(2).

In petitioner's case, the automatic stay was in effect from December 23, 2020, through April 8, 2021. Although the levy notices were sent to petitioner prior to the stay, the notice of determination was issued while the stay was in effect. The issuance of a Notice of Determination sustaining an intent to levy is a continuation of an administrative collection action and so is barred by an automatic stay under 11 U.S.C. § 362(a)(1). Smith v. Commissioner, 124 T.C. 36, 43 (2005). Such a Notice of Determination is accordingly void and without effect. Id. at 44.

The jurisdiction of this Court in a collection review proceeding depends upon the issuance of a valid Notice of Determination. Prevo v. Commissioner, 123 T.C. 326, 328 (2004). Because the notice of determination was invalid, this Court lacks jurisdiction to review the Petition, and the case must be dismissed.

It is therefore

ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed on July 27, 2022, is granted.


Summaries of

Bryan v. Comm'r of Internal Revenue

United States Tax Court
Nov 15, 2022
No. 13400-21L (U.S.T.C. Nov. 15, 2022)
Case details for

Bryan v. Comm'r of Internal Revenue

Case Details

Full title:MITCH LEE BRYAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Court:United States Tax Court

Date published: Nov 15, 2022

Citations

No. 13400-21L (U.S.T.C. Nov. 15, 2022)