Opinion
19942-19SL
06-13-2022
KAREN S. KILROY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
LEWIS R. CARLUZZO, CHIEF SPECIAL TRIAL JUDGE.
This section 6330(d) case (section references are to the Internal Revenue Code of 1986, as amended) is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 26, 2020, as supplemented on May 13, 2020, and July 13, 2021 (motion). Respondent's motion is based upon the ground that a notice of determination as contemplated by section 6330(d) has not been issued to petitioner for any period referenced in the petition. Petitioner's objections to respondent's motion are embodied in her response, filed July 31, 2020, and supplemented at various times. Respondent's motion was heard on July 28, 2021. Counsel for respondent appeared and argued in support of the motion; petitioner appeared, unrepresented, and opposed it. The facts relevant to the disposition of respondent's motion, taken from the submissions of the parties and statements and arguments made at the hearing, are summarized as follows.
The petition in this case, filed November 7, 2019, challenges respondent's decision, made in a Decision Letter dated October 2, 2019 (decision letter), that the filing of a Notice of Federal Tax Lien (NFTL) is an appropriate collection action with respect to petitioner's outstanding Federal income tax liabilities for 2014 and 2015 (underlying liabilities).
Respondent sent by certified mail a Notice of Federal Tax Lien Filing and Your Right to a Hearing under I.R.C. § 6320 (notice) to petitioner on December 4, 2018. The notice stated that petitioner had the right to request a hearing to appeal the collection action by completing a Form 12153, Request for a Collection Due Process or Equivalent Hearing, and mailing it, not later than January 10, 2019, to "Internal Revenue Service, IRS-ACS/CDP, P.O. Box 42346,
Philadelphia, PA 19101-2346." Instead, petitioner mailed the completed Form 12153, which she dated December 14, 2018, to respondent's Brookhaven Service Center in Holtsville, NY. Respondent received the form on January 11, 2019, in the Brookhaven Service Center; on February 8, 2019, in the Cincinnati Compliance Center; and on February 15, 2019, in the Philadelphia Service Center. Coincidentally, respondent also received a completed Form 656-L, Offer in Compromise, dated January 8, 2019, in its Brookhaven Service Center on January 11, 2019. The U.S. postmark on the envelope containing the Form 656-L indicates that it was mailed on January 8, 2019.
In a letter to petitioner dated March 22, 2019, respondent advised petitioner that her "request for a Collection Due Process Hearing dated December 14, 2018 . . . was not received within the timeframe allowed to qualify for a Collection Due Process Hearing." Respondent did not process petitioner's Form 656-L and returned it, along with petitioner's Form 12153, indicating by letter dated February 13, 2019, that "we have closed our file on your offer and are returning your Form 656-L, Offer in Compromise (Doubt as to Liability) . . . due to the fact that you raised no issue regarding the accuracy or correctness of your tax liability." On October 2, 2019, respondent issued to petitioner the decision letter, and thereafter petitioner filed the petition in this case.
Section 6320(a) requires that the IRS give notice in writing within five days after the filing of a notice of lien of the taxpayer's right to request a hearing before the IRS Independent Office of Appeals (Appeals). The taxpayer must request a hearing during the 30-day period beginning on the day after the five-day period described above. The notice required by section 6320 was timely mailed to petitioner on December 4, 2018, and the 30-day period within which petitioner was required to request a hearing ended on January 10, 2019.
Our jurisdiction in a collection case depends, in part, upon the issuance of a notice of determination under section 6320 or 6330. § 6320(c), § 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492 (2000). When a taxpayer fails to make a timely request for a hearing and Appeals makes no determination pursuant to section 6330, we have no jurisdiction under section 6330(d) "[b]ecause there [i]s no Appeals determination for this Court to review." Offiler, 114 T.C. at 498. A decision letter issued after an equivalent hearing generally is not considered a determination under section 6330 and is therefore insufficient to invoke our jurisdiction. See, e.g., Moorhous v. Commissioner, 116 T.C. 263, 269-70 (2001). But we have recognized that a decision letter issued after a timely request for a hearing under section 6330 "is a 'determination' for purposes of section 6330(d)(1)," regardless of the label Appeals places on the document. Craig v. Commissioner, 119 T.C. 252, 259 (2002). Jurisdiction must be shown affirmatively, and petitioner, as the party invoking our jurisdiction in the case at bar, bears the burden of proving that we have jurisdiction over her case; petitioner must establish affirmatively all facts determining jurisdiction. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001).
The focus of the parties' dispute is whether petitioner submitted the Form 12153 within the 30-day period specified in section 6320(a)(3)(B). As respondent views the matter, petitioner's hearing request was untimely because it was received by the Philadelphia Service Center on February 15, which is more than 30 days after respondent sent the NFTL, and because receipt of petitioner's Form 12153 by respondent's Brookhaven and Cincinnati offices is not considered in determining whether petitioner timely requested a hearing. See Gafford v. Commissioner, T.C. Memo. 2016-40; Code of Federal Regulations, Title 26 (Treas. Reg.) § 301.6320-1(c)(2), Q&A-C6; see generally Allnutt v. Commissioner, T.C. Memo. 2002-311, aff'd, 523 F.3d 406 (4th Cir. 2008). According to petitioner, she mailed the Form 12153 on December 14, 2018, the date she signed and dated it. The evidence offered by petitioner consists of her testimony as to the date of mailing and the March 22, 2019, letter, which she contends confirms respondent's acknowledgment that the Form 12153 was mailed on December 14, 2018.
Generally, a request for a hearing is filed on the date it is received by respondent. However, if it meets the requirements of section 7502, the request will be deemed to have been filed on the date it was postmarked, even if it is received after its due date. See § 7502(a). The envelope that contained the Form 12153 when mailed is notably absent from the record, frustrating petitioner's ability to fall within the protection of the "timely mailing, timely filing" rule of section 7502. Furthermore, petitioner's reliance on the March 22, 2019 letter is misguided. Respondent's reference in that letter to "December 14, 2018" is not an acknowledgment or confirmation by Respondent of the date of mailing of the Form 12153, as petitioner suggests, but is instead simply a statement of fact that petitioner dated the Form 12153 "December 14, 2018."
Respondent's records show that the Form 12153 was received and filed in the Brookhaven Service Center on January 11, 2019, which is outside of the 30-day period within which petitioner was required to request a hearing. Otherwise, petitioner has failed to establish that the Form 12153 was timely mailed. That being so, respondent properly afforded petitioner an equivalent hearing. See Treas. Reg. § 301.6320-1(i). It follows that this case must be dismissed for lack of jurisdiction on the ground that no notice of determination under section 6330 has been issued to petitioner with respect to the underlying liabilities.
For the foregoing reasons, it is
ORDERED that respondent's motion to dismiss, as supplemented, is granted, and this case is dismissed for lack of jurisdiction.