Opinion
12797-21P
03-08-2022
Hendrieka Fitzpatrick Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge
This case, brought by petitioner Hendrieka Fitzpatrick concerning her 2013 income tax, was scheduled for trial at the Tax Court's session in New York City beginning March 28, 2022. However, the Commissioner has filed two dispositive motions--(1) a motion (Doc. 13) to dismiss Ms. Fitzpatrick's dispute of a deficiency in her 2013 income tax, and (2) a motion (Doc. 15) for summary judgment as to Ms. Fitzpatrick's challenge to the IRS's certification under I.R.C. § 7345 that she is an individual owing seriously delinquent tax debt. We will grant the motion to dismiss, will order the Commissioner to supplement his motion for summary judgment, and will remove this case from the calendar of the New York City session beginning March 28, 2022.
Lack of jurisdiction as to 2013 deficiency challenge
In her petition Ms. Fitzpatrick disputes a "Notice of certification of your seriously delinquent federal tax debt to the State Department", and she argues that she does not owe the 2013 income tax on which it is based. In a passport case under section 7345, we do not have jurisdiction over a taxpayer's challenge to a tax liability. See Ruesch v. Commissioner, 154 T.C. 289 (2020). However, Ms. Fitzpatrick used the standard form for her Tax Court petition, and on that form she checked the box to indicate she was disputing a different notice--i.e., a "Notice of Deficiency". If Ms. Fitzpatrick had received a Notice of Deficiency and timely filed a petition under section 6213(a), then it might indeed support jurisdiction for a deficiency challenge.
However, in its motion to dismiss, the Commissioner showed that the IRS has not recently issued any notice of deficiency to Ms. Fitzpatrick and that we therefore lack jurisdiction to redetermine a deficiency. (In 2016 the IRS issued her a Notice of Deficiency as to 2013; but she did not file a Tax Court petition challenging it; and the time do so has long since passed. See sec. 6213(a).) It seemed possible that it was by accident that Ms. Fitzpatrick checked the box indicating a Notice of Deficiency; but in case she had a basis for challenging the deficiency, we ordered her to file a response to the IRS's motion no later than February 18, 2022, indicating whether she objects to that motion.
So far, she has filed no response to the motion to dismiss the deficiency challenge. The motion is well grounded, and we will grant it.
Summary judgment on the certification
The Commissioner also filed a motion for summary judgment, addressing the IRS's certification of the tax debt to the State Department under section 7345. The motion shows that Ms. Fitzpatrick does have a seriously delinquent tax debt arising from her 2013 income tax liability and that the IRS therefore properly so certified to the State Department. The Commissioner's motion shows the amounts and assessment dates of the tax, penalties, and interest for the unpaid 2013 income tax liability, and shows the current assessed balance of that liability. However, the Commissioner's motion prompts a question:
Section 7345(b) defines a "seriously delinquent tax debt", and subsection (b)(1)(C) provides that it is a tax debt "with respect to which--
(i) a notice of lien has been filed pursuant to section 6323 and the administrative rights under section 6320 ... have been exhausted or have lapsed, or
(ii) a levy is made pursuant to section 6331.(Emphasis added.) The Commissioner's motion does not allege a notice of lien (under (b)(1)(C)(i)) but rather relies on the levy provision of (b)(1)(C)(ii).
A "levy" is a seizure of money or property pursuant to section 6331(a); and section 6330 provides a prerequisite to levy: "No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made." Sec. 6330(a) (1). That is, first the IRS must give the notice and opportunity for hearing provided by section 6330, and then the IRS may actually make a levy pursuant to section 6331.
However, as we read the motion, it does not allege that a "levy [was] made" pursuant to section 6331, as section 7345(b)(1)(C)(ii) requires, but seems to rely instead on the IRS's issuance of a notice of intent to levy under section 6331. Paragraph 14 on page 5 of the motion does refer to a "levy pursuant to I.R.C. § 6331"; but it states that that "levy ... was issued". Strictly speaking, a levy is not "issued"; rather a notice of intent to levy is issued, and then a levy (a seizure) may be made. The motion elaborates (at 5 n.3) on the levy that was said to be "issued" by explaining more precisely that "[a] notice of intent to levy for petitioner's 2013 liability was issued on June 18, 2018, notifying petitioner of her collection due process (CDP) rights under section 6330." As we read the motion, it stops short of alleging that a levy was actually "made".
If we correctly construe section 7345(b)(1)(C)(ii) and the Commissioner's motion, then that motion does not allege compliance with that section. It is
ORDERED that, unless the Commissioner has withdrawn his motion (Doc. 15) for summary judgment, then no later than April 7, 2022, the Commissioner shall file a supplement to his motion for summary judgment that addresses the "levy is made" provision of section 7345(b)(1)(C)(ii) and makes a showing that a levy was actually made (or that the IRS otherwise complied with section 7345(b)(1)(C)). It is further
ORDERED that the Commissioner's motion (Doc. 13) to dismiss in part for lack of jurisdiction as to Ms. Fitzpatrick's purported liability challenge is granted. (This does not address her challenge to the tax debt certification, over which we do have jurisdiction, and which remains pending.) It is further
ORDERED that this case is continued, in that it is stricken from the calendar of the Tax Court's session in New York City beginning March 28, 2022, and it will not be called at that session. However, it is further
ORDERED that the judge signing this order retains jurisdiction over this case.