Gray v. Commissioner

CAROL DIANE GRAY, PETITIONER v. COMMISSIONER OF

INTERNAL REVENUE, RESPONDENT

Docket No. 27849–09L. 1 Filed March 28, 2012.

R issued and mailed to P a notice of determination con-

cerning collection actions under I.R.C. secs. 6320 and/or 6330,

with respect to unpaid income taxes for 1992, 1993, 1994, and

1995, on Oct. 16, 2009. The notice determined that a proposed

lien and levy should be sustained. Although P had requested

relief under I.R.C. sec. 6015 for the years in issue at her

hearing, the notice was silent with respect thereto. Petitioner

had previously requested I.R.C. sec. 6015 relief for the same

years and received a final determination with respect thereto

in 2000, for which she did not file a petition for review by this

Court within 90 days. The notice of determination also stated

that, with respect to P’s request for interest abatement, it had

been determined that P was not eligible under I.R.C. sec.

6404(e) for any abatement of interest. P’s petition seeking

review of the notice of determination was received and filed

by the Court on Nov. 23, 2009. The envelope containing the

petition bore a legible U.S. postmark of Nov. 17, 2009. R

moved to dismiss for lack of jurisdiction on the ground that

the petition was untimely.

1. Held: We lack jurisdiction under I.R.C. sec. 6330(d) to

review the determination concerning the collection actions

because the petition was not filed within 30 days of the deter-

mination as required by I.R.C. sec. 6330(d)(1).

2. Held, further, further proceedings are necessary to deter-

mine whether we have jurisdiction under I.R.C. sec.

6015(e)(1)(A) to determine the appropriate relief available to

petitioner under I.R.C. sec. 6015.

3. Held, further, the petition is timely for purposes of our

jurisdiction under I.R.C. sec. 6404(h)(1) to review whether the

failure to abate interest was an abuse of discretion, as it was

filed less than 180 days after the notice of determination was

mailed to P.

Carol Diane Gray, pro se.

Brett Saltzman, for respondent.

1 This case was previously consolidated for purposes of disposition with the cases at docket

Nos. 3260–08L and 27850–09L, concerning review of collection actions with respect to certain

other taxable years of petitioner. Pursuant to orders entered on the date of this Opinion, the

consolidation is eliminated and the cases at docket Nos. 3260–08L and 27850–09L are dismissed

for lack of jurisdiction.

295

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296 138 UNITED STATES TAX COURT REPORTS (295)

OPINION

GALE, Judge: The petition in this case seeks review of a

Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330 2 issued by respondent’s

Office of Appeals (Appeals). In the notice of determination

Appeals determined both to sustain the proposed collection

actions (a lien and a levy) and to reject petitioner’s request

for an abatement of interest. The notice of determination was

mailed on October 16, 2009. The envelope containing the

petition bears a U.S. Postal Service (USPS) postmark of

November 17, 2009. The petition was received by the Court

and filed on November 23, 2009.

Respondent has moved to dismiss for lack of jurisdiction on

the ground that the petition was untimely. We must decide

whether the petition was timely with respect to our review

of a collection action pursuant to section 6330(d)(1) and, if

not, whether we have jurisdiction pursuant to sections 6015

or 6404 to review the determination with respect to spousal

relief or interest abatement.

We hold that the petition was untimely with respect to our

review pursuant to section 6330(d)(1) of Appeals’ determina-

tion to proceed with both collection actions; accordingly, we

shall grant respondent’s motion to dismiss for lack of juris-

diction insofar as the collection actions that are the subject

of the notice of determination are concerned. The record

developed thus does not establish whether we have jurisdic-

tion pursuant to section 6015(e) to determine the appropriate

relief available to petitioner under section 6015. We shall

therefore deny respondent’s motion insofar as petitioner’s

claim for section 6015 relief is concerned. However, we fur-

ther hold that the notice of determination contains a final

determination not to abate interest. Consequently, the peti-

tion constitutes a timely request for review pursuant to sec-

tion 6404(h) of Appeals’ determination not to abate interest.

Respondent’s motion will therefore be denied with respect to

petitioner’s request for review of the failure to abate interest.

2 Unless otherwise noted, all section references are to the Internal Revenue Code of 1986, as

amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.

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(295) GRAY v. COMMISSIONER 297

Background

The following has been stipulated or is not in dispute. Peti-

tioner resided in Illinois when she filed her petition.

On October 16, 2009, Appeals issued and sent to petitioner

by certified mail a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 con-

cerning a lien and a levy to collect unpaid income taxes for

1992, 1993, 1994, and 1995. The notice of determination

rejected any collection alternatives and sustained the lien

and levy. The notice of determination also analyzed peti-

tioner’s request for abatement of tax, interest, and additions

to tax.

On the basis of substantiation of certain business expenses

petitioner submitted, the notice of determination abated a

portion of the tax for 1992 and 1993. In addition, in the

description of issues petitioner raised, the notice of deter-

mination acknowledged that petitioner had submitted a

request for interest and ‘‘penalty’’ abatement as part of her

CDP hearing: ‘‘While your case was pending in Appeals, you

also submitted a request for abatement of interest and pen-

alties.’’ After summarizing the grounds she had advanced for

interest and ‘‘penalty’’ abatement, the notice of determination

concluded that petitioner had shown reasonable cause and

that the additions to tax for all years would be abated. 3 With

respect to interest abatement, the notice of determination

stated: ‘‘A review of your request for abatement shows that

there is no basis for interest abatement, based on the criteria

shown in IRC section 6404(e)’’ and that ‘‘It was determined

that the conditions of IRC section 6404(e) with regard to

abatement of interest were not met.’’

Petitioner filed a petition in this Court in which she

checked the box indicating that she was disputing a ‘‘Notice

of Determination Concerning Collection Action’’ and attached

the notice of determination. The envelope that contained the

petition bore a USPS postmark of November 17, 2009. The

petition was received and filed by the Court on November 23,

2009. The petition disputed the notice of determination and,

among the reasons for the dispute, cited an Internal Revenue

3 On October 22, 2009, the settlement officer who conducted petitioner’s sec. 6330 hearing

issued her a separate letter stating that the additions to tax under sec. 6651(a)(1) and (2) had

been abated in full.

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298 138 UNITED STATES TAX COURT REPORTS (295)

Service (IRS) employee’s erroneous representation to peti-

tioner that she owed no income tax for her 1992–95 taxable

years.

Respondent subsequently filed a motion to dismiss for lack

of jurisdiction on the ground that the petition was not filed

within the 30-day period prescribed by sections 6320 and

6330(d) for appealing determinations concerning collection

actions. Petitioner objected, the Court conducted a hearing on

the motion, and the parties filed briefs thereafter.

Discussion

Jurisdiction Generally

The Tax Court is a court of limited jurisdiction, sec. 7442,

and may exercise jurisdiction only to the extent expressly

authorized by Congress, Stewart v. Commissioner, 127 T.C.

109, 112 (2006); Estate of Young v. Commissioner, 81 T.C.

879, 880–881 (1983). Questions of jurisdiction are funda-

mental, and whenever it appears that this Court may lack

jurisdiction that question must be addressed. Wheeler’s

Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179

(1960). We have jurisdiction to determine whether we have

jurisdiction. Stewart v. Commissioner, 127 T.C. at 112; Estate

of Young v. Commissioner, 81 T.C. at 880–881; Brannon’s of

Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1002 (1978).

All claims in a petition should be broadly construed so as

to do substantial justice, and a petition filed by a pro se liti-

gant should be liberally construed. See Rule 31(d); Haines v.

Kerner, 404 U.S. 519, 520 (1972); Lukovsky v. Commissioner,

T.C. Memo. 2010–117; Med. Practice Solutions, LLC v.

Commissioner, T.C. Memo. 2009–214; Swope v. Commis-

sioner, T.C. Memo. 1990–82. Accordingly, we must consider

whether the petition, liberally construed, sets out a claim

over which we have jurisdiction.

Jurisdiction To Review the Collection Action Determination

It is a straightforward proposition that the petition sought

to invoke our jurisdiction under section 6330(d)(1) to review

the determinations in the notice of determination to proceed

with collection. Petitioner checked the box on the petition

indicating that she was disputing a ‘‘Notice of Determination

Concerning Collection Action’’ and attached the notice of

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(295) GRAY v. COMMISSIONER 299

determination. The notice of determination notes that peti-

tioner sought a hearing under sections 6320 and 6330 and

states a determination to proceed with two collection actions

(a lien and a levy). The problem for petitioner is that an

appeal of a collection determination under section 6330(d)(1)

must be made ‘‘within 30 days of a determination’’. The

notice of determination is dated October 16, 2009, and was

sent by certified mail to petitioner on that date. Thirty days

thereafter was November 15, 2009, which was a Sunday.

Pursuant to section 7503, the last day for filing an appeal of

the collection determination was therefore the next day,

Monday, November 16, 2009 (which was not a legal holiday).

The petition was received by the Court and filed on

November 23, 2009. Although under section 7502 the date of

a legible USPS postmark is treated as the date of delivery

when actual delivery occurs beyond the date required for

filing, see, e.g., Shipley v. Commissioner, 572 F.2d 212, 213–

214 (9th Cir. 1977), aff ’g T.C. Memo. 1976–383; sec.

301.7502–1(c)(1)(iii), Proced. & Admin. Regs., section 7502

does not help petitioner here because the USPS postmark on

the envelope containing the petition is November 17, 2009.

Our jurisdiction to review a collection action determination

under section 6330(d)(1) depends upon the issuance of a valid

notice of determination and a timely petition for review.

Lunsford v. Commissioner, 117 T.C. 159, 165 (2001). The 30-

day period provided in section 6330(d)(1) for the filing of a

petition for review is jurisdictional and cannot be extended;

this Court must dismiss for lack of jurisdiction any case in

which a petition for review is deemed filed more than 30

days after the notice of determination is issued. McCune v.

Commissioner, 115 T.C. 114, 117 (2000). Since the petition

was not filed, or treated as filed, within the statutorily pre-

scribed period, we lack jurisdiction to review the determina-

tion to proceed with the collection actions in the notice of

determination.

Petitioner’s Contentions

Petitioner contends that she had 90 days to appeal the

notice of determination because it included determinations

modifying the underlying tax liabilities for 1992–95. In peti-

tioner’s view, because her underlying tax liabilities were

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300 138 UNITED STATES TAX COURT REPORTS (295)

addressed in the notice of determination, she is entitled to

the same 90-day period to appeal the determination as is

generally allowed for the filing of a petition for redetermina-

tion of a deficiency pursuant to section 6213(a).

Petitioner is mistaken. The statutory scheme of section

6330 clearly contemplates that the underlying tax liability

may be challenged in designated circumstances in a section

6330 proceeding and requires the determination to consider

such a challenge when properly made. See sec. 6330(c)(2)(B),

(3)(B). However, the statute does not distinguish between

determinations where the underlying tax liability is properly

at issue and those where it is not. The same 30-day period

to appeal the determination applies across the board. See sec.

6330(d).

Petitioner also argues that, because the notice determined

that the additions to tax for 1992–95 should be abated and

the settlement officer issued a separate letter notifying her

of the abatement on October 22, 2009, she has 30 days from

the date of the separate letter to appeal the notice of deter-

mination.

Petitioner’s contention is meritless. In contrast to the case

of interest abatement determinations, section 6404 confers no

‘‘stand-alone’’ jurisdiction on the Tax Court to review the

Commissioner’s determinations to abate penalties. See sec.

6404(h)(1). However, the Court’s jurisdiction under section

6330(d)(1) to review determinations concerning a taxpayer’s

underlying tax liability does reach a determination to abate

a penalty where the penalty forms part of the underlying tax

liability. See Katz v. Commissioner, 115 T.C. 329, 339 (2000).

That jurisdiction is dependent upon the penalty’s forming a

part of the unpaid tax that the Commissioner is seeking to

collect. See Greene-Thapedi v. Commissioner, 126 T.C. 1, 6–

7 (2006); Chocallo v. Commissioner, T.C. Memo. 2004–152.

Respondent’s determinations concerning petitioner’s liability

for the section 6651(a)(1) and (2) additions to tax for 1992–

95, insofar as the additions affected the proposed collection

actions, were made in the notice of determination under sec-

tion 6330 issued on October 16, 2009. By contrast, the ‘‘pen-

alty’’ letter of October 22, 2009, makes no reference to section

6330 or to any collection action. 4 Consequently, the ‘‘penalty’’

4 The October 22, 2009, letter would appear to have been issued in compliance with the Inter-

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(295) GRAY v. COMMISSIONER 301

letter cannot reasonably be construed to constitute a deter-

mination regarding a collection action that would confer

jurisdiction on this Court under section 6330(d)(1) if appealed

within 30 days. See Lunsford v. Commissioner, 117 T.C. at

164 (our jurisdiction under section 6330(d)(1) is established

‘‘when there is a written notice that embodies a determina-

tion to proceed with the collection of * * * taxes * * * and

a timely filed petition’’). 5

Jurisdiction Under Section 6015

Petitioner also contends that she requested spousal relief

under section 6015 during her section 6330 hearing, entitling

her to 90 days, rather than 30 days, from the mailing of the

notice of determination to petition the Tax Court for review.

See Raymond v. Commissioner, 119 T.C. 191, 193–194 (2002)

(holding that a petition seeking review of a denial of spousal

relief in a section 6330 proceeding is timely if filed within the

period provided in section 6015(e)(1)). The notice of deter-

mination is silent with respect to any spousal relief claim.

However, on the basis of a case activity record which peti-

tioner has submitted to the Court, the authenticity of which

respondent does not dispute, we are satisfied that petitioner

requested section 6015 relief with respect to the years in

issue. The case activity record states: ‘‘The taxpayer * * *

wants to be determined an innocent spouse for 1992–95. Her

innocent spouse request was denied and she has exhausted

her appeal rights.’’

In Raymond v. Commissioner, 119 T.C. at 194, the tax-

payer had raised a spousal defense in a section 6330 hearing,

and the notice of determination included a determination

that the taxpayer was not entitled to relief under section

6015. In those circumstances, we held that the petition, filed

more than 30 days after the issuance of the notice of deter-

mination, was nonetheless timely for purposes of conferring

jurisdiction on this Court to determine the appropriate relief

under section 6015 because it had been filed within 90 days

nal Revenue Manual’s directive that Appeals issue a closing letter to the taxpayer when a ‘‘pen-

alty’’ abatement request has been granted in full. See Internal Revenue Manual pt. 8.11.1.5.3

(Apr. 13, 2010).

5 Even if the ‘‘penalty’’ letter were somehow construed as a determination concerning a collec-

tion action, we would lack jurisdiction due to mootness as the taxes (i.e., the additions to tax)

that are the subject of the letter were abated and respondent is not seeking to collect them.

See Greene-Thapedi v. Commissioner, 126 T.C. 1, 6–7 (2006).

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302 138 UNITED STATES TAX COURT REPORTS (295)

of the mailing of the notice of determination. ‘‘The timeliness

of the petition, insofar as it seeks review of the administra-

tive denial of section 6015 relief, is, therefore, dependent

upon section 6015(e)(1).’’ 6

Here, petitioner raised a spousal defense at her section

6330 hearing, but the notice of determination is silent with

respect thereto. The petition can be reasonably construed as

alleging a spousal defense. 7 Given the silence of the notice

of determination the petition may be timely for jurisdictional

purposes under section 6015(e)(1)(A)(i)(II), which authorizes

a petition and confers jurisdiction on this Court where a

request for equitable relief under section 6015(f) has been

made 8 and there has been no final determination with

respect to the request within six months. However, petitioner

admits in her opening brief that she previously sought sec-

tion 6015 relief with respect to the years 1992 through 1995,

that she received a final determination with respect thereto

in 2000, and that she did not petition for Tax Court review

of that determination. The entry in the case activity record

previously quoted likewise suggests that the Appeals officer

was aware of the previous denial.

Section 1.6015–5(c)(1), Income Tax Regs., generally pro-

vides that a requesting spouse is entitled to only one final

administrative determination of relief under section 6015 for

a given assessment, unless the requesting spouse’s status as

married to or cohabiting with the nonrequesting spouse

changes between the first and second request for relief. In

Barnes v. Commissioner, 130 T.C. 248 (2008), we held that

a second request for section 6015(f) relief from an under-

payment that was essentially duplicative of an earlier

request for which a final determination had been issued did

not confer jurisdiction on this Court under section

6015(e)(1)(A). We expressly reserved ruling, however, on the

question of ‘‘whether a second request for relief that is based

6 We note that the Secretary adheres to the same position in the regulations. See sec.

301.6330–1(f)(2), Q&A–F2, Proced. & Admin. Regs.

7 The petition alleges that errors in the returns filed for the years in issue were attributable

to ‘‘incorrect information given to the accountant by my ex-spouse.’’ We construe the petition,

filed by a pro se litigant, broadly. See Rule 31(d); Haines v. Kerner, 404 U.S. 519, 520 (1972);

Lukovsky v. Commissioner, T.C. Memo. 2010–117.

8 As no deficiency had been asserted against her, but instead the tax for each year in issue

was reported as due but not paid, petitioner was eligible to request equitable relief under sec.

6015(f) at her sec. 6330 hearing, but she was not eligible to elect the application of sec. 6015(b)

or (c). See sec. 6015(e)(1); Hopkins v. Commissioner, 121 T.C. 73, 88 (2003).

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(295) GRAY v. COMMISSIONER 303

on grounds or facts sufficiently dissimilar from those under-

lying the first request for relief might revive the right to peti-

tion for review by this Court.’’ Barnes v. Commissioner, 130

T.C. at 254 n.6.

Respondent’s motion to dismiss does not address the fact

that petitioner raised a spousal defense at her section 6330

hearing. The motion simply contends that the petition is

untimely because it was not filed within the 30-day period

provided in section 6330(d)(1), without taking into account

Raymond, Barnes, or section 1.6015–5(c)(1), Income Tax

Regs. On the basis of the record developed thus far, we are

unable to determine whether the claim for relief petitioner

raised at her section 6330 hearing is ‘‘sufficiently dissimilar’’

from the claim for which she received a final determination

in 2000 that we would have jurisdiction over the former not-

withstanding the holding in Barnes. Because we have juris-

diction to determine whether we have jurisdiction, we con-

clude that respondent’s motion to dismiss must be denied

insofar as it concerns petitioner’s claim for relief under sec-

tion 6015 for the years 1992 through 1995. Further pro-

ceedings are necessary to determine whether jurisdiction

exists.

Jurisdiction Under Section 6404

Because we lack jurisdiction under section 6330(d)(1) and

our jurisdiction under section 6015(e) is uncertain, we con-

sider whether the petition states an independent claim for

jurisdiction under section 6404. Petitioner argues that

because she requested an abatement of interest under section

6404 with respect to years 1992 through 1995, she has 180

days under section 6404(h)(1) from the mailing of the deter-

mination denying abatement to appeal it. Respondent con-

tends that ‘‘the fact that a taxpayer raises the issue of

interest abatement during her CDP hearing is irrelevant to

the true nature of the proceeding’’; that is, as a section 6330

proceeding in which a determination must be appealed

within 30 days.

Final Determination Not To Abate Interest

We consider first respondent’s preliminary argument that

there was ‘‘no determination as to abatement of interest

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304 138 UNITED STATES TAX COURT REPORTS (295)

* * * made within the CDP hearing or without it’’ and that

‘‘Petitioner was never issued a Notice of Determination or

Notice of Disallowance in connection with an interest abate-

ment proceeding.’’ We disagree. The notice of determination

issued to petitioner in connection with her section 6330

hearing states: ‘‘A review of your request for abatement

shows that there is no basis for interest abatement, based on

the criteria shown in IRC section 6404(e)’’ and that ‘‘It was

determined that the conditions of IRC section 6404(e) with

regard to the abatement of interest were not met.’’ The notice

of determination satisfies us that petitioner made a request

for interest abatement under section 6404(e) during her sec-

tion 6330 hearing and that Appeals made a determination to

deny it.

To the extent respondent may be suggesting that there was

no determination denying interest abatement because it did

not occur in connection with a stand-alone request for

interest abatement under section 6404 or because it was not

made on a Letter 3180, Final Determination Letter for Fully

Disallowing an Interest Abatement Claim, his contention is

meritless. Our jurisdiction to review denials of section 6404

interest abatement requests made in section 6330 pro-

ceedings is well established. See Katz v. Commissioner, 115

T.C. at 340–341; Kuykendall v. Commissioner, T.C. Memo.

2008–277; Joye v. Commissioner, T.C. Memo. 2002–14.

Regarding the form in which the determination was made, as

we recently observed in Cooper v. Commissioner, 135 T.C. 70,

75 (2010): ‘‘the name or label of a document does not control

whether the document constitutes a determination * * * our

jurisdiction is established when the Commissioner issues a

written notice that embodies a determination.’’ See also

Lunsford v. Commissioner, 117 T.C. at 164. This principle is

well illustrated in Craig v. Commissioner, 119 T.C. 252

(2002), where we held that a decision letter issued in connec-

tion with an equivalent hearing provided pursuant to section

301.6330–1(c)(2), Q&A–C7, Proced. & Admin. Regs., was a

determination conferring jurisdiction on this Court, notwith-

standing that the decision letter purported not to do so.

Here, the notice of determination was written and

embodied a determination that petitioner was not entitled to

any interest abatement under section 6404(e). The notice

fairly indicates that the settlement officer gave ‘‘consider-

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(295) GRAY v. COMMISSIONER 305

ation to whether it would be appropriate to abate an assess-

ment of interest’’. Bourekis v. Commissioner, 110 T.C. 20, 26

(1998). Respondent has not suggested any basis for con-

cluding that the determination was not intended to resolve

petitioner’s request for interest abatement or was not final,

as required in section 6404(h)(1), and we see none. Accord-

ingly, we conclude that the notice of determination embodied

a final determination not to abate interest as contemplated

in section 6404(h)(1).

Independent Jurisdiction Under Section 6404(h)

Because petitioner requested an abatement of interest in

connection with her section 6330 hearing, the notice of deter-

mination included a determination not to abate interest

under section 6404(e), and the petition seeks our review of

that determination, we conclude that the notice and petition

confer jurisdiction under section 6404(h) that is independent

of section 6330. See Rule 31(d); Wright v. Commissioner, 571

F.3d 215, 219–220 (2d Cir. 2009), vacating and remanding

T.C. Memo. 2006–273; Kaufman v. Commissioner, T.C.

Memo. 2010–89. Insofar as the petition seeks review under

section 6404(h) of the failure to abate interest, it is timely for

jurisdictional purposes because it was filed within 180 days

of the final determination not to abate interest. See sec.

6404(h)(1); cf. Raymond v. Commissioner, 119 T.C. at 194

(timeliness of petition filed after section 6330 proceeding,

insofar as it seeks review of denial of section 6015 relief, is

dependent upon section 6015(e)(1)). We follow the principle

applied in Raymond: since the claim under section 6404, like

a claim under section 6015, carries a more specific grant of

jurisdiction for Tax Court review than that provided in sec-

tion 6330(d)(1), the more specific grant of jurisdiction con-

trols the timeliness of the petition as to the section 6404

claim. We therefore hold that the petition is timely for pur-

poses of conferring jurisdiction on this Court pursuant to sec-

tion 6404(h)(1) to determine whether the failure to abate

interest with respect to petitioner’s 1992–95 taxable years

was an abuse of discretion.

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306 138 UNITED STATES TAX COURT REPORTS (295)

Conclusion

We shall grant respondent’s motion to dismiss for lack of

jurisdiction insofar as review of the collection actions in the

notice of determination is concerned. Accordingly, the collec-

tion actions at issue may proceed. We shall deny respond-

ent’s motion insofar as the petition seeks our determination

of the appropriate relief available under section 6015 and our

review of the determination not to abate interest. Further

proceedings are necessary to decide whether we have juris-

diction under section 6015(e)(1)(A), whether petitioner may

maintain an action under section 6404, 9 and, if so, whether

the determination not to abate was an abuse of discretion. To

reflect the foregoing,

An appropriate order will be issued.

f

9 Respondent’s motion addresses the timeliness of the petition and has not challenged peti-

tioner’s satisfaction of the so-called net worth requirements of sec. 6404(h)(1) as referenced in

sec. 7430(c)(4)(A)(ii). See Estate of Kunze v. Commissioner, T.C. Memo. 1999–344, aff ’d, 233 F.3d

948 (7th Cir. 2000).

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