                       T.C. Memo. 2002-161



                     UNITED STATES TAX COURT



              THOMAS & IRIS TILLEY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 400-01L.              Filed June 25, 2002.


     Knox Kent Lively III, for petitioners.

     Blake Ferguson and J. Craig Young, for respondent.


                       MEMORANDUM OPINION


     PAJAK, Special Trial Judge:   This case comes before the

Court on respondent’s Motion To Dismiss For Lack Of Jurisdiction,

and on petitioners’ cross-motion to dismiss.   Section references

are to the Internal Revenue Code as amended.

     On May 26, 1999, the Internal Revenue Service Appeals Office

in Greensboro, North Carolina, issued two separate Notices of

Determination Concerning Collection Action(s) Under Section 6320
                               - 2 -

and/or 6330 (notice[s] of determination).   One notice of

determination was issued to both petitioners, stating

respondent’s intention to proceed with collection by levy of

their joint Federal income tax liabilities for the taxable years

1991 and 1992.   The other notice of determination was issued to

petitioner Thomas Tilley, stating respondent’s intention to

proceed with collection by levy of his separate Federal income

tax liabilities for the taxable years 1994 and 1995.

     The notice of determination for the 1991 and 1992 income

taxes was sent to petitioners at their last known address, 4920

Farrington Road, Chapel Hill, North Carolina 27514-8603, by

certified mail on May 26, 1999.   The notice of determination for

the 1994 and 1995 income taxes was sent to Mr. Tilley at his last

known address, 4920 Farrington Road, Chapel Hill, North Carolina

27514-8603, by certified mail on May 26, 1999.

     Petitioners filed one petition for review of respondent’s

notices of determination relating to the Federal income taxes for

the taxable years 1991, 1992, 1994, and 1995.    Petitioners

resided in Chapel Hill, North Carolina, at the time their

petition was filed.

     The 30-day period provided by section 6330(d)(1) for timely

filing a petition for review of the notices of determination with

this Court expired on June 25, 1999.   That date was not a legal

holiday in the District of Columbia.   The petition was filed with
                               - 3 -

the Tax Court on January 8, 2001, which date is 593 days after

the mailing of the notices of determination.   The date of the

U.S. Postmark stamped on the cover in which the petition was

mailed by regular mail to this Court is January 4, 2001, which

date is 589 days after the mailing of the notices of

determination.

     Petitioners do not contest the foregoing facts.

     Respondent’s position is that the petition was not filed

with the Court within the time prescribed by sections 6330(d)(1)

or 7502.   Petitioners’ position is that respondent did not

provide petitioners with an opportunity for a hearing as required

by section 6330 and therefore that this Court should dismiss this

case because petitioners claim the notices of determination are

invalid.

     There is no dispute that the Court lacks jurisdiction in

this case.

     Section 6330 provides in part as follows:

     SEC. 6330(a). Requirement Of Notice Before Levy.--

         (1) In General.-–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. Such notice
     shall be required only once for the taxable period to which
     the unpaid tax specified in paragraph (3)(A) relates.

         (2) Time And Method For Notice.-–The notice required
     under paragraph (1) shall be–-
      *       *        *        *       *         *       *
             (C) sent by certified or registered mail, return
     receipt requested, to such person’s last known address;
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     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.

         (3) Information Included With Notice.-–The notice
     required under paragraph (1) shall include in simple and
     nontechnical terms–

             (A) the amount of unpaid tax;

             (B) the right of the person to request a hearing
          during the 30-day period under paragraph (2); and
       *       *        *        *        *        *        *
     (b) Right To Fair Hearing.–

         (1) In General.-–If the person requests a hearing under
     subsection (a)(3)(B), such hearing shall be held by the
     Internal Revenue Service Office of Appeals.

         (2) One Hearing Per Period.-–A person shall be entitled
     to only one hearing under this section with respect to the
     taxable period to which the unpaid tax specified in
     subsection (a)(3)(A) relates.

     On February 3, 1999, respondent sent to petitioners a Notice

of Intent To Levy And Notice Of Your Right To A Hearing (notice

of intent to levy) with respect to the taxable years 1991, 1992,

1994, and 1995.   On February 24, 1999, the Internal Revenue

Service (IRS) received petitioners’ February 22, 1999, Request

for a Collection Due Process Hearing with respect to those years.

On March 8, 1999, A.G. Wilson (Mr. Wilson), an Appeals officer,

sent a letter to petitioners which states as follows:

          This case has been referred to our office.

          I will write or call you soon to arrange a mutually
     satisfactory date for a conference.

          If you need to contact me in the meantime, you may
     write me at the address below or call me at the telephone
                                - 5 -

     number shown above. Please enclose a copy of this letter
     with any written correspondence.

     On April 15, 1999, Mr. Wilson held a telephone conference

with Mr. Tilley in response to the request for a collection

hearing.    Both parties discussed the issues in the request.    Mr.

Wilson observed that there were four basic issues in petitioners’

protest and went over those issues with Mr. Tilley at that time.

One issue discussed was a notice of intent to levy sent to Mrs.

Tilley for years not applicable to her.     Mr. Wilson discovered

this had been corrected and that an appropriate notice of intent

to levy had been sent.    Another issue discussed during the

telephone conference was the application of funds received by way

of lien discharges and Mr. Wilson determined the funds had been

properly applied.    Mr. Tilley argued that he was entitled to

certain deductions and credits.    Mr. Wilson offered to send Mr.

Tilley the transcripts of account.      Mr. Wilson observed that the

Tax Court had decided petitioners’ 1991 and 1992 years on the

merits.    As to 1994 and 1995, Mr. Wilson noted that Mr. Tilley,

who had not filed returns for those years, was sent notices of

deficiency but did not file a petition with this Court.     The last

issue Mr. Tilley and Mr. Wilson discussed during the telephone

conference was that Mr. Tilley challenged the Federal income tax

laws as being unconstitutional because they were capitation

taxes.    Mr. Wilson advised Mr. Tilley that it was not the

function of Appeals to decide such questions but that these were
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matters for the courts.

     During the telephone conference, Mr. Wilson asked Mr. Tilley

if he wanted a face-to-face meeting.   As Mr. Wilson testified: “I

asked him at the beginning of the conference whether he wanted a

face-to-face meeting.   He said, Not at this time.   And at the end

of the conference, I asked him if he had any questions for me,

and he did not ask for a person-to-person hearing at that time.”

Mr. Wilson also said:   “Well, after I explained that if there

were no other issues, I’d be issuing a determination letter, at

which time he [Mr. Tilley] indicated it would be fine just to go

ahead and send the transcripts with the determination letter

instead of separately, or earlier.”

     It is obvious from the record that Mr. Tilley and the

Appeals officer did in fact discuss the case over the telephone

and that the Appeals officer heard and considered Mr. Tilley’s

arguments.   In Katz v. Commissioner, 115 T.C. 329, 337-338

(2000), this Court held that where the taxpayer and the Appeals

officer had a telephone conference about the taxpayer’s

arguments, the taxpayer had received an Appeals hearing as

provided in section 6320(b) in the circumstances of that case.

     On April 15, 1999, Mr. Wilson received another letter from

Mr. Tilley dated March 31, 1999, which was a second request for a

hearing.   Mr. Tilley had sent this letter to a revenue officer

who forwarded it to Mr. Wilson.   As detailed above, a telephone
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conference took place on April 15, 1999, the date the second

request was received by Mr. Wilson.    In a May 17, 1999, letter

petitioners referred to the telephone conference with an Appeals

Officer and, among other things, requested a person-to-person

hearing.   In a September 16, 1999, letter, petitioners

acknowledged that, during a telephone conference Mr. Tilley

initially agreed with an IRS official that a face-to-face hearing

would not be necessary, but upon further reflection, petitioners

later requested a person-to-person hearing in their May 17, 1999,

letter.

     On May 26, 1999, respondent issued two notices of

determination, one to petitioners for the taxable years 1991 and

1992, and one to Mr. Tilley for the taxable years 1994 and 1995.

Nothing in the notices of determination leads us to conclude that

the determinations were invalid.   We find that the notices of

determination clearly embody the Appeals Officer’s determinations

that collections by way of levy may proceed.    Thus, regardless of

whether petitioners were given an appropriate hearing

opportunity, there was a valid determination.    We recently held

that, in determining the validity of a notice of determination

for jurisdictional purposes, we shall not look behind such a

notice in order to ascertain whether the taxpayer was afforded an

appropriate hearing with respondent’s Appeals Office.     Lunsford

v. Commissioner, 117 T.C. 159, 164-165 (2001).    Consistent with
                               - 8 -

our holding in Lunsford, we hold that the notices of

determination issued to petitioners were valid.

     Because the notices of determination were valid, we consider

respondent’s motion.   Petitioners acknowledge in their cross-

motion to dismiss that a petition from a notice of determination

must be filed within 30 days of such a determination.     The

undisputed facts underlying respondent’s motion and set forth

above compel us to conclude that this petition was untimely under

section 6330(d)(1) or 7502, and this case must be dismissed for

that reason.

                                            An appropriate Order and

                                       Order of Dismissal will be

                                       entered.
