Opinion
12766-21L
09-13-2021
Brian Keith Evans Petitioner v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
On August 18, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground the petition was not filed timely as to the notice of determination concerning collection action dated February 3, 2020, issued with respect to petitioner's unpaid income tax liability for taxable year 2016. On September 9, 2021, petitioner filed his Opposition to respondent's motion to dismiss.
The record reflects that respondent sent by certified mail a notice of determination concerning collection action for 2016 to petitioner at his last known address on February 3, 2020. The 30-day period under I.R.C. section 6330(d)(1) for filing a timely Tax Court petition as to that notice of determination expired on March 4, 2020. The petition, filed April 14, 2021, arrived at the Court in a UPS shipping envelope bearing a UPS Next Day Air label dated April 13, 2021--over 13 months after the statutory 30-day period expired.
In his Opposition petitioner essentially does not dispute the jurisdictional allegations set forth in respondent's motion to dismiss. Rather, he instead primarily asserts that this Court should exercise its discretion and deny respondent's motion. Contrary to petitioner's argument, however, the procedures authorized by I.R.C. section 6212(a) and (b) for sending a notice of deficiency apply to the mailing of a notice of determination issued pursuant to section 6320 and/or 6330. Weber v. Commissioner, 122 T.C. 258, 261-262 (2004); Balice v. Commissioner, T.C. Memo. 2005-35.
A notice of determination issued in a collection due process case that is mailed in accordance with section 6212(a) and (b) is sufficient to start the 30-day period within which a taxpayer may appeal the determination to the Tax Court under section 6330(d). Weber v. Commissioner, 122 T.C. at 261-262. If a notice of determination issued pursuant to section 6330 is properly mailed to a taxpayer's last known address by certified mail, the date on which the taxpayer actually receives the notice of determination is irrelevant in determining whether a petition appealing that determination was filed within the 30-day period prescribed in section 6330(d) (1). Weber v . Commissioner, 122 T.C. at 263.
As discussed above the record reflects the petition was not filed timely as to the February 3, 2020, notice of determination issued to petitioner for 2016 upon which this case is based. Accordingly, we lack jurisdiction to review that notice of determination concerning collection action. I.R.C. sec. 6330(d)(1); Offiler v. Commissioner, 114 T.C. 492, 498 (2000); Rule 330(b), Tax Court Rules of Practice and Procedure.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction, filed August 18, 2021, is granted and this case is dismissed for lack of jurisdiction.