                         T.C. Memo. 2010-119



                     UNITED STATES TAX COURT



                   ROBERT ANSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14484-09L.              Filed June 2, 2010.



     Robert Anson, pro se.

     Shawna A. Early, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GUSTAFSON, Judge:   This case is an appeal by petitioner

Robert Anson, pursuant to section 6330(d),1 asking this Court to

restrain the Internal Revenue Service (IRS) from levying to

     1
      Except as otherwise noted, all citations of sections refer
to the Internal Revenue Code (26 U.S.C.), and all citations of
Rules refer to the Tax Court Rules of Practice and Procedure.
                               - 2 -

collect Mr. Anson’s unpaid civil tax penalties for the years 2002

and 2003.   The case is currently before the Court on Mr. Anson’s

“Motion to Restrain Assessment or Collection and to Order Refund

of Amount Collected” filed June 15, 2009, and respondent’s

“Motion to Dismiss for Lack of Jurisdiction” filed July 10, 2009.

The principal issue for decision is whether the IRS mailed its

notice of levy to Mr. Anson’s last-known address, in compliance

with section 6330(a)(2)(C).   For the reasons explained below, we

will deny Mr. Anson’s motion and grant respondent’s motion.

                         FINDINGS OF FACT

     At the time he filed his petition, Mr. Anson resided in

New York.

Mr. Anson’s residence and mailing address

     As of the beginning of 2008 Mr. Anson resided in an

apartment in a complex that included 247 units in 22 buildings.

Not all the buildings are visible from the main road.   The

mailing addresses for all 247 units had the same street and

number, and the addresses were differentiated only by an

apartment number that consisted of a letter of the alphabet

(indicating a building) and a number (indicating a specific

apartment).

     In early 2008 Mr. Anson was in apartment F-5.   Sometime in

2008--we cannot determine the day or even the month--Mr. Anson
                                - 3 -

moved to apartment P-13, in a different building on the opposite

side of the complex.

Notice of Mr. Anson’s address

     As of early 2008 IRS records reflected the old apartment F-5

address as Mr. Anson’s address.   Mr. Anson admits that he did not

notify the IRS of any change in his address before June 2008.

     Mr. Anson alleges instead that on April 1, 2008, he

submitted to the U.S. Postal Service (USPS) a Form 3575,

“Official Mail Forwarding Change of Address Order”, noting the

change from apartment F-5 to apartment P-13.   However, on the

evidence before us we find that he did not submit this form to

the USPS.

The IRS levy

     In November 2005 the IRS assessed against Mr. Anson income

tax and related liabilities totaling $8,850.08 for taxable year

2002.   In February 2007 the IRS assessed against Mr. Anson a $500

penalty for the year 2002; and in February 2008 the IRS assessed
                               - 4 -

against him a penalty of $5,000 for the year 2003.2   The

liabilities were unpaid as of April 2008.

     On April 17, 2008, the IRS sent to Mr. Anson by certified

mail at the apartment F-5 address a Letter 1058, “Final Notice /

Notice of Intent to Levy and Notice of Your Right to a Hearing”.

The notice of intent to levy listed the liabilities for 2002

taxes and 2002 and 2003 penalties; it advised Mr. Anson of his

right to request a hearing “within 30 days” (i.e., by May 17,

2008); and it enclosed the Form 12153, “Request for a Collection

Due Process or Equivalent Hearing”, on which he could do so.

     On May 6, 2008, the USPS returned the notice of intent to

levy to the IRS, and the envelope indicates it was returned as

“unclaimed/refused” after notices had been left for the addressee

on April 18 and 26, 2008.   Because Mr. Anson did not request a

collection due process (CDP) hearing, the IRS did not issue a

notice of determination pursuant to section 6330(c)(3) but

instead proceeded to levy against Mr. Anson to satisfy the

liabilities.   On June 1, 2009, the IRS issued to M & T Bank a

     2
      The penalties for both 2002 and 2003 were assessed pursuant
to section 6702(a), which imposes a penalty for filing a
frivolous tax return. Section 6702 was amended by the Tax Relief
and Health Care Act of 2006, Pub. L. 109-432, div. A,
sec. 407(a), 120 Stat. 2960, by which the penalty increased from
$500 to $5,000. The filing dates of Mr. Anson’s 2002 and 2003
returns presumably straddled the effective date of the amendment.
Mr. Anson’s 2003 income tax liability was not assessed until
March 2009 (i.e., more than a year after the 2003 penalty
assessment in February 2008) and was therefore not included in
the April 2008 levy notice at issue here.
                                - 5 -

Form 688-A, “Notice of Levy”, directing the bank to surrender

funds from Mr. Anson’s accounts to pay the 2002 and 2003

penalties, and it sent a copy of the notice to Mr. Anson at the

new apartment P-13 address.3

Tax Court proceedings

     Mr. Anson received his copy of the notice of levy to M & T

Bank, and on June 15, 2009, he filed his petition commencing this

case.    He attached to the petition a copy of the notice issued to

M & T Bank and alleged that “Respondent has failed to mail to

Petitioner a Final Notice of Intent to Levy and Notice of Your

Right to a Hearing as Required by IRC Section 6330(a) before

issuing these levies”.   With his petition, Mr. Anson filed a

“Motion to Restrain Assessment or Collection and to Order Refund

of Amount Collected”, arguing that he had been deprived of his

right to a CDP hearing and that the IRS should be ordered to

withdraw the notice of levy and to refund any amounts it had

obtained pursuant to levy.



     3
      The record does not show exactly how the IRS had become
aware of the new apartment P-13 address by June 1, 2009 (more
than a year after it issued the April 2008 notice of levy). On
April 29 and May 8, 2008, the IRS issued to Mr. Anson two notices
of Federal tax lien and mailed them to the old apartment F-5
address. In response Mr. Anson submitted to the IRS in June 2008
a Form 12153 requesting a CDP hearing, and on that form he used
the new apartment P-13 address. Mr. Anson has stipulated that it
was by this Form 12153 that “[r]espondent was first notified
indirectly in writing” of his change to the new apartment P-13
address.
                                - 6 -

     Respondent opposed the motion and filed his own “Motion to

Dismiss for Lack of Jurisdiction”, in which he asserted that the

IRS had issued to Mr. Anson a final notice of intent to levy.

Respondent attached to his opposition the notice dated April 17,

2008.   Mr. Anson then opposed respondent’s motion with his

allegation that the notice had been sent to the wrong address and

that he had given the USPS a notice of change of address on

April 1, 2008.

     The Court ordered an evidentiary hearing on the parties’

cross-motions.    The hearing took place in New York City on

January 11, 2010.    The parties submitted a stipulation, and

Mr. Anson testified and offered additional documentary evidence.

                               OPINION

I.   Collection review procedure

     When a taxpayer fails to pay any Federal tax liability

within 10 days of notice and demand, the IRS may collect the

unpaid tax by levy on the taxpayer’s property, pursuant to

section 6331.    However, before the IRS may proceed with that

levy, the taxpayer is entitled to administrative and judicial

review.   Section 6330(a)(1) provides:

     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.
     * * *
                                  - 7 -

The manner in which that notice is to be delivered to the

taxpayer is set out in section 6330(a)(2), which provides:

     The notice required under paragraph (1) shall be--

           (A) given in person;

           (B) left at the dwelling or usual place of business of
           such person; or

           (C) sent by certified or registered mail, return
           receipt requested, to such person’s last known address;

     not less than 30 days before the day of the first levy with
     respect to the amount of the unpaid tax for the taxable
     period. [Emphasis added.]

The regulations provide that in general “a taxpayer’s last known

address is the address that appears on the taxpayer’s most

recently filed and properly processed Federal tax return, unless

the Internal Revenue Service (IRS) is given clear and concise

notification of a different address.”     26 C.F.R. sec. 301.6212-

2(a), Proced. & Admin. Regs.   This definition applies to levy

notices.   See id. sec. 301.6212-2(c).

     If in response to such a notice the taxpayer makes a timely

request for a CDP hearing, then administrative review is carried

out by way of a hearing before the Office of Appeals under

section 6330(b) and (c), which culminates in the issuance of a

“determination by an appeals officer”.     Sec. 6330(c)(3).   If the

taxpayer is dissatisfied with that determination, he can appeal

that determination to the Tax Court under section 6330(d).
                                - 8 -

II.   Tax Court jurisdiction

      A.   CDP appeals

      Jurisdiction to review a proposed levy in a CDP appeal is

conferred on the Tax Court by section 6330(d) only when a

taxpayer “appeal[s] such determination”.    (Emphasis added.)   That

is, for the Tax Court to have jurisdiction under section 6330(d),

the Office of Appeals must first issue a determination under

section 6330(c)(3); for Appeals to issue a determination, the

taxpayer must first timely request a CDP hearing under

section 6330(b)(1); and for the taxpayer to timely request a CDP

hearing, the IRS must first issue a final notice of intent to

levy under section 6330(a).    Any failure in that chain ordinarily

deprives the Tax Court of CDP jurisdiction.

      In particular, if the IRS fails to issue a valid final

notice of intent to levy (as Mr. Anson contends happened here),

then there can be no CDP hearing and no determination, and the

Tax Court lacks jurisdiction.   See Buffano v. Commissioner,

T.C. Memo. 2007-32 (a final notice of intent to levy not sent to

the last known address is invalid and requires dismissal for lack

of jurisdiction).   Or if the IRS does issue a valid final notice

but the taxpayer fails to timely request a CDP hearing (as the

IRS contends happened here), then there can be no CDP hearing and

no determination, and the Tax Court lacks jurisdiction.   See

Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
                               - 9 -

     Thus, the parties’ competing contentions yield the same

conclusion, i.e., that the Court lacks jurisdiction, but for

different reasons--and with different results:   If we lack

jurisdiction (and dismiss the petition) because the IRS failed to

issue a valid final notice (as Mr. Anson contends), then the IRS

cannot proceed with collection on the basis of that notice.    But

if we lack jurisdiction (and dismiss the petition) because the

taxpayer failed to timely request a hearing (after the IRS gave

due notice of his right to a hearing, as the IRS contends), then

the dismissal is no impediment to the IRS’s proceeding with the

collection action that the taxpayer failed to timely challenge.

     B.   Enjoining collection action

     Mr. Anson asks us to enjoin the IRS’s further collection by

levy, because, he contends, he has been deprived of the CDP

hearing that should have preceded any levy.   Although

section 7421(a)--the Anti-Injunction Act--provides generally that

“no suit for the purpose of restraining the assessment or

collection of any tax shall be maintained in any court by any

person,” the CDP provisions do include an exception to that

general rule:   Section 6330(e)(1) provides that--

     if a hearing is requested under subsection (a)(3)(B),
     the levy actions which are the subject of the requested
     hearing * * * shall be suspended for the period during
     which such hearing, and appeals therein, are pending.
     * * * Notwithstanding the provisions of section
     7421(a) [the Anti-Injunction Act], the beginning of a
     levy or proceeding during the time the suspension under
     this paragraph is in force may be enjoined by a
                              - 10 -

     proceeding in the proper court, including the Tax
     Court. The Tax Court shall have no jurisdiction under
     this paragraph to enjoin any action or proceeding
     unless a timely appeal has been filed under subsection
     (d)(1) and then only in respect of the unpaid tax or
     proposed levy to which the determination being appealed
     relates. [Emphasis added.]

As the underscored language indicates, however, the exception is

limited to circumstances in which the taxpayer requested “a

hearing * * * under subsection (a)(3)(B)” (i.e., “during the

30-day period” after the final notice of intent to levy), and the

Tax Court has no jurisdiction unless the taxpayer filed “a timely

appeal * * * under subsection (d)(1)” (i.e., “within 30 days of a

determination”).   That motion will therefore be denied.

III. The validity of the final notice

     Section 6330(a)(2)(C) requires in pertinent part that a

final notice of levy be sent to the taxpayer’s “last known

address”.   The parties have stipulated that, before April 2008,

Mr. Anson’s last known address was the old apartment F-5 address.

Therefore, unless something occurred to change Mr. Anson’s last

known address, the final notice of levy was sent to the correct

address and was valid, and this case must be dismissed on the

grounds that, because he failed to timely request a hearing,

there is no determination conferring jurisdiction on this Court

(and the IRS may proceed with collection).   Mr. Anson contends

that he took action that changed his last known address, and as
                              - 11 -

the petitioner he bears the burden of proof on this contention.

See Rule 142(a)(1).

     In particular, Mr. Anson alleges that on April 1, 2008, he

submitted to the U.S. Postal Service a change-of-address notice

and that the IRS thereby received notice of the change.   To make

this argument, he invokes a section of the regulations that

provides:

     The IRS will update taxpayer addresses maintained in
     IRS records by referring to data accumulated and
     maintained in the United States Postal Service (USPS)
     National Change of Address database that retains change
     of address information for thirty-six months (NCOA
     database). Except as provided in paragraph (b)(2)(ii)
     of this section, if the taxpayer's name and last known
     address in IRS records match the taxpayer's name and
     old mailing address contained in the NCOA database, the
     new address in the NCOA database is the taxpayer's last
     known address, unless the IRS is given clear and
     concise notification of a different address. [26 C.F.R.
     sec. 301.6212-2(b)(2)(i), Proced. & Admin. Regs.]

For purposes of respondent’s motion, we assume arguendo that a

postal change-of-address notice submitted to the USPS on April 1,

2008, could and should have been processed by the USPS, obtained

by the IRS, and incorporated into the IRS’s records in time to

have been used for a final notice of levy issued sixteen days

later on April 17, 2008.4   However, we have found that Mr. Anson


     4
      This assumption is problematic. See Graham v.
Commissioner, T.C. Memo. 2008-129 (“The Treasury Decision
accompanying this regulation explains that the IRS will receive
weekly updates of the NCOA database and will update its copy of
the full NCOA database with the most recent changes of address in
the weekly update. T.D. 8939, 2001-1 C.B. 899. However, there
                                                   (continued...)
                              - 12 -

did not submit a change-of-address notice to the USPS as he

alleged, because the evidence does not support and in some

respects contradicts this allegation:

     •    The copy of the notice of change of address that

          Mr. Anson offered into evidence bears no acknowledgment

          of receipt or processing by the USPS, and the USPS has

          no record of the alleged change of address.

     •    The USPS did not forward the final notice of levy to

          Mr. Anson’s new apartment P-13 address.

     •    On June 20, 2008--more than two months after the

          supposed change of address--Mr. Anson signed a petition

          in another Tax Court case (docket No. 15651-08L) on

          which he gave the old apartment F-5 address.   He

          continued to use that address in that case until

          August 2008.

     •    In one of his submissions in this case, Mr. Anson

          stated:   “In the month of April of 2008, Petitioner was

          in the process of moving” (emphasis added) from

          apartment F-5 to apartment P-13.   This description is

          not consistent with a change of address effected as of

          April 1, 2008, and suggests that Mr. Anson should have


     4
      (...continued)
may be a delay of up to 2 or 3 weeks from the date a taxpayer
notifies the USPS that his or her change of address is effective
and the time the new address is posted to the IRS’s automated
master file. Id.”).
                             - 13 -

          been aware of the two USPS certified mail notices left

          April 18 and 26, 2008.

It appears that Mr. Anson’s move to apartment P-13 was not

completed by April 1, 2008 (and perhaps not for some months

thereafter), and we find that he did not give a change-of-address

notice to the USPS at that time.

     Consequently, the IRS’s use of the old apartment F-5 address

on the final notice of levy was proper, Mr. Anson failed to

timely request a CDP hearing, and no determination ever issued

that would give us jurisdiction to entertain Mr. Anson’s appeal.

     To reflect the foregoing,


                                      An appropriate order of

                                 dismissal for lack of jurisdiction

                                 will be entered.
