Opinion
1950-23L
02-14-2024
IVEY L. CHAVIS Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge
On October 10, 2023, respondent filed a Motion for Judgment on the Pleadings. The undersigned judge was assigned to this matter, and a contradictory hearing on respondent's motion was set for November 13, 2023 at a special session of the Court in Winston-Salem, North Carolina. By agreement of the parties, this contradictory hearing was continued, and a remote hearing was scheduled.
At a remote hearing before the undersigned held on December 13, 2023, this case was called, and petitioner and respondent's counsel appeared and were heard. At the hearing, the Court indicated how it was inclined to treat respondent's Motion for Judgment on the Pleadings as a Motion for Summary Judgment under Rule 120(b). The Court also indicated how it was agreeable to allow leave for petitioner to now file his reply to respondent's answer, which asserts affirmative defenses.
At the hearing, the parties indicated that petitioner's CDP hearing may be resolved since the underlying liability at issue for tax year 2017 may be paid in full. At the conclusion of the hearing, it was agreed that the Court would take respondent's Motion under advisement and the parties were to advise the Court within 30 days as to whether there was a balance remained due from petitioner with respect to tax year 2017.
Per a status report filed by respondent on January 5, 2024, respondent indicates that an account balance plus accruals, for tax year 2017 remains due from petitioner of $4,706.44 as of January 15, 2024. Accordingly, this case is not moot since there remains a balance owed from petitioner for tax year 2017.
On February 2, 2023, respondent filed a Partial Motion to Dismiss for Lack of Jurisdiction and to Strike. In his Motion to Dismiss for Lack of Jurisdiction and to Strike, respondent asks this Court to strike any references in this case to a Notice of Deficiency for tax year 2017 dated March 2, 2020, in which this petitioner timely filed a Petition with this Court and remains pending before this Court at Docket No. 7311-21.
Since there remains pending with this Court a Petition challenging the Notice of Deficiency dated March 2, 2020, the Court is not inclined to grant respondent's Partial Motion to Dismiss for Lack of Jurisdiction in this proceeding and hold that a Petition was not timely filed, in this instant case, when in fact a petition was timely filed by petitioner at Docket No. 7311-21. However, the Court is aware that this case relates solely to the Notice of Determination issued by the Independent Office of IRS Appeals (Appeals), and dated January 11, 2023; therefore, we will grant respondent's Motion to Strike, and deem stricken from this proceeding any reference to the Notice of Deficiency dated March 2, 2020.
Background
On February 11, 2023, petitioner electronically filed a letter and duplicative copies of a Notice of Determination dated January 11, 2023, at Docket No. 7311-21. By Order dated March 7, 2023, this Court commenced the present case at Docket No. 1950-23L on behalf of petitioner. The Petition and the First Amendment to Petition in this case are comprised of petitioner's letter and the Notice of Determination dated January 11, 2023.
The subject line of petitioner's letter refers to the March 2, 2020, Notice of Deficiency. Respondent has asked this Court to strike any references to the Notice of Deficiency because the Petition in this case was not filed until 1,076 days after the date of the Notice of Deficiency, which was well after the general 90 days provided to petition this Court. Respondent, however, is not asking to strike references to the January 11, 2023, Notice of Determination in his Partial Motion to Dismiss for Lack of Jurisdiction and to Strike.
Statement of the Law
Section 6331(a) authorizes the Secretary to levy against property and property rights where a taxpayer liable for taxes fails to pay those taxes within 10 days after notice and demand for payment is made. Section 6331(d) requires the Secretary to send the taxpayer written notice of the Secretary's intent to levy, and section 6330(a) requires the Secretary to send the taxpayer written notice of his right to a section 6330 hearing at least 30 days before any levy is begun.
If a section 6330 hearing is requested, the hearing is to be conducted by Appeals, and, at the hearing, the Appeals officer conducting it must verify that the requirements of any applicable law or administrative procedure have been met. I.R.C. § 6330(b)(1), (c)(1). The taxpayer may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy. I.R.C. § 6330(c)(2)(A).. The taxpayer may contest the existence or amount of the underlying tax liability at the hearing if the taxpayer did not receive a statutory notice of deficiency with respect to the underlying tax liability or did not otherwise have an opportunity to dispute that liability. I.R.C. § 6330(c)(2)(B).
At the conclusion of the hearing, the Appeals officer must determine whether and how to proceed with collection, taking into account, among other things, collection alternatives (e.g., an offer in compromise) proposed by the taxpayer and whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the taxpayer that the collection action be no more intrusive than necessary. See I.R.C. § 6330(c)(3). We have jurisdiction to review Appeals' determination pursuant to section 6330(d)(1). See Murphy v. Commissioner, 125 T.C. 301, 308 (2005), aff'd, 469 F.3d 27 (1st Cir. 2006).
This Court may proceed in a case only if we have jurisdiction, and the question of jurisdiction may be raised at any time, whether by the parties or by this Court sua sponte. See, Neely v. Commissioner, 115 T.C. 287, 290 (2000). In Boechler, P.C. v. Commissioner, the Supreme Court held that the section 6330(d)(1) 30-day filing deadline for lien/levy cases is not jurisdictional. 599 U.S. 199, 211 (2022). In accordance with Boechler, this Court may now consider late-filed petitions and accept a late-filed petition by applying the doctrine of equitable tolling. Id
In this case, Appeals issued its notice of determination on January 11, 2023, while the Petition in this case was received and electronically filed on February 11, 2023; resulting in 31 days between the date of the notice of determination and the date of the filing of the Petition.
Considering the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction and to Strike, in granted in part, in that any reference to the Notice of Deficiency dated March 2, 2020 is deemed stricken from the record of this case, and denied, as to all other relief sought. It is further
ORDERED that petitioner shall, on or before March 15, 2024, show cause in writing why this case should not be dismissed for lack of jurisdiction on the ground that the Petition was not mailed to or filed with the Tax Court within the time prescribed by section 6330(d)(1) of the Internal Revenue Code. Petitioner's response should also address whether, if the Petition is determined to be untimely, there are adequate grounds for this Court to apply equitable tolling to deem the Petition timely filed and specify those grounds.