                       T.C. Memo. 2002-289



                     UNITED STATES TAX COURT



         RUSSELL L. AND RUTH C. VOORHEES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6891-02L.             Filed November 25, 2002.


     Russell L. and Ruth C. Voorhees, pro se.

     R. Bradley Taylor, for respondent.



                       MEMORANDUM OPINION


     WOLFE, Special Trial Judge:   This matter is before the Court

on respondent’s Motion To Dismiss For Lack Of Jurisdiction And To

Strike As To Ruth C. Voorhees (motion to dismiss).   Unless

otherwise indicated, all section references are to the Internal

Revenue Code in effect at relevant times, and all Rule references

are to the Tax Court Rules of Practice and Procedure.
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                            Background

     On August 21, 2001, respondent issued to petitioners a Final

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

(notice of intent to levy) concerning unpaid joint income tax

liabilities for the years 1991 and 1996.   The notice of intent to

levy stated that petitioners owed a total of $5,743.04 and

informed petitioners that they had 30 days to pay this amount,

make alternative arrangements to pay or request Appeals

consideration and that if petitioners failed to take such action

timely, respondent might take their property or rights to

property.

     On August 23, 2001 petitioner Russell L. Voorhees signed IRS

Form 12153, a Request for a Collection Due Process Hearing

(request for hearing), relating to the tax liabilities.

Petitioner Ruth C. Voorhees did not sign the request for hearing,

although her name is listed on the form as a taxpayer.    On August

28, 2001, respondent received the request for hearing, and on

January 24, 2002, the Internal Revenue Service Office of Appeals

(Appeals Office) held a hearing.

     On March 14, 2002, the Appeals Office issued to petitioner

Russell L. Voorhees a Notice of Determination concerning

Collection Action(s) under Section 6320 and/or 6330 (notice of

determination).   The Appeals Office did not issue a notice of

determination to petitioner Ruth C. Voorhees.
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     On March 20, 2002, petitioner Russell L. Voorhees wrote a

letter to the Clerk of the Court requesting petition forms and

the rules for filing a petition.   The Court received this letter

on April 1, 2002, and filed the letter as a Petition for Lien or

Levy Action under Code Section 6320(c) or 6330(d) (petition).      By

order dated April 1, 2002, and directed to petitioner Russell L.

Voorhees only, this Court ordered the filing of a petition

complying with the requirements of Rule 331(b) and also required

payment of the filing fee.   Thereafter petitioners submitted an

Amended Petition for Lien or Levy Action (amended petition) that

was filed on May 3, 2002.    Both Russell L. and Ruth C. Voorhees

signed the amended petition.   Both were residents of Arizona at

the time of the filing of the amended petition.

     On May 30, 2002, respondent filed the motion to dismiss.      On

June 12, 2002, petitioners filed a Response to Motion to Dismiss

and Strike as to Ruth C. Voorhees (response).     Russell L.

Voorhees and Ruth C. Voorhees appeared at the hearing on

respondent’s motion to dismiss, and respondent was represented by

counsel.

                             Discussion

     If any person liable to pay any tax neglects or refuses to

pay that tax within 10 days after notice and demand for payment,

the Secretary is authorized to collect the tax by levy upon the

person’s property.   Section 6331(a).     At least 30 days prior to
                               - 4 -

proceeding with enforced collection by way of a levy on a

person’s property, the Secretary must notify that person in

writing of the Secretary’s intent to levy and must provide

notice of the administrative appeals available to the taxpayer

with respect to the proposed levy and sale and the procedures

relating to such appeals.   Sec. 6331(d).

     Generally, section 6330 provides that “the Commissioner

cannot proceed with enforced collection by way of levy until the

taxpayer has been given notice of and the opportunity for an

administrative review of the matter (in the form of an Appeals

Office hearing) and, if dissatisfied, the taxpayer may seek

judicial review of the administrative determination”.      Moorhous

v. Commissioner, 116 T.C. 263, 268 (2001).   The notice prescribed

in section 6330 shall be provided 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 and shall include an

explanation that the taxpayer has a right to request an

administrative hearing during that 30-day period.   Sec.

6330(a)(2), (a)(3)(B).

     Pursuant to section 6330(d), “Where the Appeals Office

issues a determination letter to the taxpayer following an

administrative hearing regarding a notice of intent to levy, * *

* the taxpayer will have 30 days following the issuance of such

determination letter to file a petition for review with the Tax
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Court”.     Moorhous v. Commissioner, supra at 268-269.   The Court’s

jurisdiction under section 6330 depends on the issuance of a

valid determination letter and the filing of a timely petition

for review.     Id. at 269.   It is well settled that this Court can

proceed in a case only if we have jurisdiction and that any

party, or the Court sua sponte, can question jurisdiction at any

time.    Neely v. Commissioner, 115 T.C. 287, 290 (2000).

        If a husband and wife file a joint Federal income tax

return, “the tax shall be computed on the aggregate income and

the liability with respect to the tax shall be joint and

several”.     Sec. 6013(d)(3).   Section 6330, however, “does not

direct the Commissioner to treat a husband and wife who have

filed a joint return as a single person for purposes of that

provision * * * [and] it follows that the Commissioner may elect

to pursue one or both the spouses for the collection of the tax.”

Moorhous v. Commissioner, supra at 271.

     As we have indicated above, on August 21, 2001, and in

accordance with section 6331, respondent issued to petitioners a

notice of intent to levy.     Petitioner Russell L. Voorhees then

completed a timely request for hearing, and, in accordance with

section 6330, he received an Appeals Office hearing.      Although

respondent issued the notice of intent to levy to both

petitioners, the Appeals Office only issued a notice of

determination to petitioner Russell L. Voorhees.     Under these
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circumstances, pursuant to section 6330(d), only petitioner

Russell L. Voorhees may file a petition with the Court.    Since

respondent did not issue a notice of determination to petitioner

Ruth C. Voorhees, petitioner Ruth C. Voorhees may not invoke this

Court’s jurisdiction.

     We reject petitioners’ contention that respondent’s motion

is raised late in the proceedings and is untimely.   The notice of

determination is a jurisdictional requirement of the Court, and

jurisdictional matters may be raised at any stage of the

proceedings.   In addition, in their response to the motion to

dismiss petitioners contend that dismissal against petitioner

Ruth C. Voorhees would amount to a dismissal against both

petitioners and that such a result is “not within the purview or

the intent of the law”.   This contention is without merit.

Petitioners are not treated as a single person under section

6330.   Because Ruth C. Voorhees did not request a hearing, the

Appeals Office was not obligated to conduct a hearing with

respect to her liabilities.   Consequently the Appeals Office was

not obligated to issue a notice of determination to Ruth C.

Voorhees and did not do so.   Because Ruth C. Voorhees did not

receive a notice of determination, she may not join in petitioner

Russell L. Voorhees’ challenge to his notice of determination.

See Moorhous v. Commissioner, supra at 270 (holding that taxpayer

husband, who filed jointly with his wife but did not receive a
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notice of determination, could not join in taxpayer wife’s

challenge to her notice of determination).

     In view of the foregoing, we shall grant respondent’s motion

to dismiss for lack of jurisdiction as to petitioner Ruth C.

Voorhees on the ground that, because of her failure to request a

hearing, the Appeals Office did not issue a notice of

determination to her to form the basis for a petition to this

Court under section 6330(d).   In addition, we shall strike all

portions of paragraphs 1 and 4 of the petition in which reference

is made to Ruth C. Voorhees.

     To reflect the foregoing,



                                              An appropriate order

                                         granting respondent’s motion

                                         to dismiss for lack of

                                         jurisdiction and to strike

                                         will be issued.
