# Lunsford v. Comm'r

> United States Tax Court · November 30, 2001 · 117 T.C. 159

URL: https://www.frixlaw.com/law-library/cases/4474150

## Case

- **Full name:** JOSEPH D. AND WANDA S. LUNSFORD v. COMMISSIONER OF INTERNAL REVENUE
- **Court:** United States Tax Court
- **Decided:** November 30, 2001
- **Citations:** 117 T.C. 159; 117 T.C. No. 16; 2001 U.S. Tax Ct. LEXIS 48
- **Precedential status:** Published
- **Opinion:** Dissent by Foley
- **Judges:** "Ruwe, Robert P.","Halpern, James S.",Beghe,"Foley, Maurice B.","Vasquez, Juan F."
- **Cited by:** 96 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4474150

## How later opinions describe it (automated extraction)

- stating that the validity of a notice of determination is assessed on its face, and a notice is valid if it clearly states that Appeals has made a determination
- holding that a notice valid on its face and a timely filed petition confer jurisdiction on this Court whether or not the taxpayer had a fair section 6320/6330 hearing
- holding that a written -9- notice to proceed with a collection action constituted a determination under section 6330
- holding that a writ- ten notice to proceed with a collection action constituted a determination under section 6330
- holding that this general rule applies to determination notices in collection cases

## Opinion text

Foley, J., dissenting: I respectfully disagree with the majority’s analysis and holding.
In order to assert jurisdiction, deny petitioners their statutorily mandated hearing, and expedite the collection process, the majority have bifurcated this case into two opinions, both of which obfuscate the issues, ignore an unambiguous statute, and avoid addressing the most critical issue: Does the exchange of correspondence between respondent and petitioners constitute the hearing required by section 6330(b)(1)? Prior to overruling Meyer v. Commissioner, 115 T.C. 417 (2000), and taking jurisdiction, the majority must first answer this question. The majority did not do so. Undaunted by the facts and the law, the majority usurp jurisdiction over this matter and simply assert that, regardless of whether there was a hearing, the purported determination is “valid” and “we have jurisdiction”. Majority op. p. 165. Under the majority holding, virtually any piece of paper entitled “Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 ” confers jurisdiction on this Court and may ultimately deprive the taxpayer of his statutory right to a hearing.
1. The Meyer Holding Is Correct
In Meyer v. Commissioner, supra, the Appeals officer did not offer the taxpayers a hearing, yet proceeded to issue a determination 1 letter. We held in Meyer that the failure to offer a hearing invalidated the determination and, thus, prevented us from having jurisdiction over the case. In Meyer we were correct in relying on Offiler v. Commissioner, 114 T.C. 492, 497 (2000), and stating: “section 6330(b) contemplates that an Appeals Office hearing, if duly requested by the taxpayer, must precede the issuance of a determination letter.” Meyer v. Commissioner, supra at 422 . Because conducting a hearing is so fundamental to section 6330, the failure to do so precludes issuance of a determination under section 6330, Offiler v. Commissioner, supra at 497-498 , and invalidates any purported determination.
We have no jurisdiction over, and may not adjudicate, a matter if there has been no hearing. Section 6330(b)(1) is unambiguous. 2 This section provides that “If the person requests a hearing * * *, such hearing shall be held by the Internal Revenue Service Office of Appeals”. 3 (Emphasis added.) The entire statutory scheme of section 6330 contemplates that there can be a determination only after a hearing is held. The first reference in section 6330 to the “determination” is in paragraph (3) of subsection (c) entitled “Matters considered at hearing”. Indeed, section 6330(d), which provides for the taxpayer to appeal a determination issued pursuant to section 6330(c)(3) to this Court (or in certain cases to the District Court), is entitled “Proceeding after hearing”. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (stating that the heading of a section is a tool available for the resolution of a doubt about the meaning of a statute).
The determination is the end product of the hearing process. Thus, it is contrary to section 6330 to conclude that a purported determination, prepared without the benefit of a hearing, is valid. In short, either there can be no determination without a hearing or any purported determination is invalid. In either case, the Court simply does not have jurisdiction.
Offiler v. Commissioner, supra, provides the basis upon which Meyer v. Commissioner, supra, was decided. In Offiler, the taxpayer did not timely request a hearing under section 6330. We held that “Because no section 6330 hearing was requested, Appeals made no determination pursuant to section 6330(c)[(3)]”, Offiler v. Commissioner, supra at 497 , and therefore we did not have jurisdiction under section 6330(d), id. at 498 .
Kennedy v. Commissioner, 116 T.C. 255 (2001), and Moorhous v. Commissioner, 116 T.C. 263 (2001), also provide strong support for the holding in Meyer. The Court in both Kennedy and Moorhous relied on Offiler for' its conclusion in each of those cases that (1) because the taxpayer failed to request timely an Appeals Office hearing, (2) the Appeals Office was not required to conduct such a hearing, and (3) the so-called decision letter that the Appeals Office issued “was not, and did not purport to be, a determination letter pursuant to section 6320 or section 6330.” Moorhous v. Commissioner, supra at 270 ; Kennedy v. Commissioner, supra at 263 . Implicit in the holdings of Offiler, Kennedy, and Moorhous is that the Appeals Office may make the determination under section 6330(c)(3) only after a taxpayer-requested hearing is held. See Offiler v. Commissioner, supra at 497 ; Kennedy v. Commissioner, supra at 263 ; Moorhous v. Commissioner, supra at 270 . If. a taxpayer does not request a hearing, obviously no hearing is held, and there can be no determination issued pursuant to section 6330(c)(3). If a taxpayer requests a hearing, and the Appeals Office does not hold such a hearing, the Appeals Office may not issue a determination pursuant to section 6330(c)(3), as was the case in Offiler, Kennedy, and Moorhous, or if the Appeals Office purports to issue a determination pursuant to section 6330(c)(3), any such purported determination is not valid. Only after a hearing is held may a determination be issued. See sec. 6330(c)(3). Only after such a hearing is held and after such a determination is made may a taxpayer appeal that determination to this Court (or in certain cases to the District Court). See sec. 6330(d), entitled “Proceeding after hearing”. (Emphasis added.)
2. Rationale for Holding Is Unpersuasive
In tandem, the majority’s holdings in Lunsford v. Commissioner, 117 T.C. 183 (2001) (Lunsford II), and this case are groundless assertions of jurisdiction and" authority. The majority attempt to justify their holding that we have jurisdiction by asserting that an inquiry into whether the Appeals Office failed to hold a hearing requested by the taxpayer is an exercise of “looking behind” the notice of determination. Majority op. pp. 163-164. They assert that to “look behind” the notice of determination to assess its validity is contrary to caselaw regarding the validity of a notice of deficiency. Id.
Our jurisprudence relating to the validity of nótices of deficiency is not applicable to this case. Here we have an unambiguous statute that requires respondent, upon a taxpayer’s request, to hold a hearing. If the heáring is not held there can be no determination, or any purported determination is invalid. Assuming arguendo that the majority were correct in relying on the jurisprudence relating to the validity of notices of deficiency, the majority may not rely only on certain cases to the exclusion of others where we have analyzed the facts and circumstances surrounding the issuance of a notice of deficiency. Those cases include instances where the tax was assessed and paid at the time the notice of deficiency was issued, Estate of Crawford v. Commissioner, 46 T.C. 262 (1966), where the Court must determine whether the notice was sent to the last known address of the taxpayer, Abeles v. Commissioner, 91 T.C. 1019, 1035 (1988), and affected items cases where partners failed to receive notification of the underlying partnership proceeding as required by section 6223(a), Crowell v. Commissioner, 102 T.C. 683 (1994). Applying the foregoing jurisprudence, when considering whether the notice of determination is sufficient to grant us jurisdiction, it is necessary and appropriate to assess whether petitioners had a hearing.
3. The Stare Decisis Doctrine Is Violated
The majority are so determined to expedite the collection process, they opt to overrule Meyer v. Commissioner, 115 T.C. 417 (2000), sua sponte. The parties do not question, and have not briefed, the rule established by Meyer. Moreover, in overruling Meyer the majority ignore existing case law (i.e., Offiler, Moorhous, and Kennedy) and show no regard for stare decisis:
the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. * * * any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged “to bring its opinions into agreement with experience and with facts newly ascertained.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 , 52 S.Ct. 443, 449 , 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). [Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986).]
There are no articulable reasons for overturning Meyer, except the majority’s desire to relieve respondent of the burden of holding hearings for those taxpayers respondent and the Court deem to have meritless arguments. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001) (“We do not believe that it is either necessary or productive to remand this case”). The majority’s only explicit justification for ignoring the doctrine of stare decisis is that Meyer v. Commissioner, supra, “has resulted in unjustified delay in the resolution of cases.” Majority op. p. 164. “Unjustified delay” from whose perspective? The “delay” was created by the Appeals officer’s failure to follow the section 6330(b)(1) mandate to hold a hearing. Moreover, in a case where a taxpayer maintains a proceeding in the Court primarily for delay, we are authorized to impose a penalty under section 6673(a)(1).
Although the majority state that Meyer was decided “In the nascent stages of our * * * jurisprudence,” majority op. p. 164, there are no new experiences or newly ascertained facts that would warrant revisiting the jurisdictional issue in Meyer. See Burnet v. Commissioner, 285 U.S. 393, 412 (1932). Meyer was decided less than 1 year ago, yet an indeterminate number of case dispositions (i.e., by way of settlement and orders) have relied on it. The Court’s flip-flopping creates unnecessary and unwarranted instability in the law.
In sum, the determination is the end product of the hearing process. Either there can be no determination without a hearing or any purported determination is invalid. The Court simply does not have jurisdiction.
Chiechi, Laro, Vasquez, and Marvel, JJ., agree with this dissenting opinion. References to a “determination” are not intended to imply whether it is a determination that meets the requirements of sec. 6330(c), (d), and (e).
When interpreting an unambiguous statute, it is not necessary to consider the legislative history. Nevertheless, we note that the legislative history accompanying sec. 6330 further supports our position. Congress promulgated sec. 6330 to establish “formal procedures designed to insure due process where the IRS seeks to collect taxes by levy”. S. Rept. 105-174, at 67 (1998), 1998- 3 C.B. 537 , 603. The Senate Finance Committee stated that the Commissioner would, pursuant to sec. 6330, be required to "afford taxpayers adequate notice of collection activity and a meaningful hearing before the IRS deprives them of their property.” Id.; see also H. Conf. Rept. 105-599, at 263 (1998), 1998- 3 C.B. 747 , 1017 (“If * * * the taxpayer demands a hearing, the proposed collection action may not proceed until the hearing has concluded and the appeals officer has issued his or her determination.”). The temporary regulations relating to sec. 6330 are fully consistent with the legislative history of the statute. Sec. 301.6330-1T(d)(1), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3410 (Jan. 22, 1999) (“If a taxpayer requests a CDP hearing under section 6330(a)(3)(B) * * *, the CDP hearing will be held with Appeals.”).
Any reference to a request for a hearing shall be considered a reference to a request meeting the requirements of sec. 6330(a)(3)(B) (i.e., a timely request) unless otherwise stated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4474150. Public record. Not legal advice.