                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2008

Vivenzio v. Comm IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3328




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3328
                                       ___________


                               LAWRENCE F. VIVENZIO,
                                                   Appellant

                                             v.

                     COMMISSIONER OF INTERNAL REVENUE

                       ____________________________________

                       On Appeal from the United States Tax Court
                               (Tax Court No. 9773-06L)
                       Tax Court Judge: Honorable John O. Colvin
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 11, 2008

    Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges

                                  (Filed: June 16, 2008)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Lawrence F. Vivenzio appeals, pro se, from the order of the United States Tax

Court dismissing his petition for lack of jurisdiction. We will affirm.
                                              I.

       In a letter dated May 5, 2006, the IRS Office of Appeals rejected the “offer in

compromise” previously submitted by Vivenzio and his wife, Gloria E. Vivenzio

(collectively “Vivenzios”), with respect to their unpaid federal income tax liabilities for

the 1999 and 2000 tax years. On May 23, 2006, the Vivenzios filed a pro se petition for

lien or levy action with the Tax Court, alleging that the Office of Appeals abused its

discretion by denying their offer. They also filed a motion to restrain assessment or

collection.

       In addition to submitting an objection to the motion to restrain, the IRS moved to

dismiss the entire case for lack of jurisdiction. It explained that the Tax Court possesses

jurisdiction to review lien and levy collection actions under I.R.C. § 6320 and I.R.C. §

6330 only if the IRS issued a “notice of determination.” According to the IRS, it never

issued any notice of determination in this matter. The Tax Court subsequently ordered

the IRS to file a response to the Vivenzios’ objection to its dismissal motion and to

provide tax history documentation by September 26, 2006. The IRS’s response was filed

on September 27, 2006, and it included both additional documentation as well as a

declaration by Robert Green, a lead tax examiner. After reviewing the documentation,

Green reiterated that no notice of determination was issued by the IRS. The Vivenzios

then filed a motion to strike the IRS’s September 27, 2006 submission because of its

untimeliness.



                                              2
       The Tax Court entered an order dismissing the case for lack of jurisdiction and

denying the motion to restrain assessment or collection. According to the Tax Court, its

jurisdiction to review certain collection actions depends on the issuance of a notice of

determination, and “there is nothing in the record to suggest that any such notices have of

yet been issued to petitioners.” (App. Doc. #1: Order and Order of Dismissal for Lack of

Jurisdiction at 1.)

       A timely notice of appeal was then filed with the United States Court of Appeals

for the Federal Circuit. The Federal Circuit transferred this appeal to this Court, which

has jurisdiction under I.R.C. § 7482(a)(1).

                                              II.

       Mr. Vivenzio challenges the Tax Court’s dismissal of his case for lack of

jurisdiction.1 After considering the record on appeal as well as the parties’ arguments, we

conclude that the Tax Court was correct to dismiss this matter on jurisdictional grounds.

       Congress has created a framework for “collection due process” (or “CDP”)

hearings. I.R.C. § 6330 governs the process for IRS levy actions against the property of

delinquent taxpayers, and I.R.C. § 6320 applies to federal tax lien filings. Following the

CDP hearing, the IRS Office of Appeals sends the taxpayer a notice of determination

setting forth the basis for its decision and expressly addressing the relevant issues raised


   1
     Although not mentioned by the parties, the notice of appeal in this matter was signed
only by Lawrence Vivenzio and not by his wife, Gloria Vivenzio. Accordingly, this
Court’s docket identifies Mr. Vivenzio as the sole appellant, and we treat him as such.

                                              3
by the taxpayer at the hearing. I.R.C. § 6330(c)(3). The taxpayer in turn “may, within 30

days of a determination under this section, appeal such determination to the Tax Court

(and the Tax Court shall have jurisdiction with respect to such matter).” I.R.C. §

6330(d)(1); see also I.R.C. § 6320(c) (providing that I.R.C. § 6330(d)(1) also applies in

lien context). The notice of determination issued by the Office of Appeals accordingly

constitutes a jurisdictional prerequisite to seeking judicial review in the Tax Court. See,

e.g., Boyd v. Comm’r, 451 F.3d 8, 10 & n.1 (1st Cir. 2006); Weber v. Comm’r, 122 T.C.

258, 263 (2004) (describing notice of determination as taxpayer’s “‘ticket’ to the Tax

Court”); Offiler v. Comm’r, 114 T.C. 492, 498 (2000).

       In an apparent effort to satisfy the jurisdictional requirement, Mr. Vivenzio has

turned to various documents in the administrative record, specifically: (1) statutory

notices of intent to levy on state tax refunds; (2) a monthly statement showing a payment

due under an installment agreement; (3) account statements notifying the Vivenzios that

the IRS was offsetting federal tax overpayments against their tax liabilities and also that it

reduced their 2000 liability on account of a statutory tax credit; and (4) the Office of

Appeals letter denying their offer in compromise. Nevertheless, none of these documents

is either a statutory notice of determination or otherwise points to the existence of such an

administrative notice. The statutory framework itself distinguishes between notices of

intent to levy, which allow a taxpayer to request a CDP hearing before the Office of

Appeals, and subsequent notices of determination, which are issued by the Office of



                                              4
Appeals after the hearing is conducted and allow the taxpayer to obtain judicial review.2

See I.R.C. §§ 6330(a), (b), (d). Mr. Vivenzio provides no real support for his allegation

that the “unilateral” installment agreement, which he allegedly never signed, somehow

demonstrates the existence of an undisclosed and undocumented notice of determination.

The Tax Court also properly found that the IRS’s offsetting does not constitute a levy.

See, e.g., Boyd, 451 F.3d at 11-13; Hankin v. United States, 891 F.2d 480, 482-83 (3d

Cir. 1989). In fact, there is no indication in the record that the IRS ever actually levied on

the Vivenzios’ property or filed a lien notice against them. Finally, the IRS’s rejection of

their offer to compromise, evidently made outside of the context of CDP proceedings,

does not rise to the level of a statutory notice of determination.

       Under the circumstances, the Tax Court properly accepted the IRS’s contention,

supported by both ample documentation as well as a lead tax examiner’s declaration, that

the agency never issued a notice of determination. Furthermore, the Tax Court did not

otherwise possess jurisdiction over a challenge to the IRS’s denial of a free-standing offer

in compromise. The Tax Court generally possesses only such jurisdiction as is expressly

conferred upon it by Congress. See, e.g., I.R.C. § 7442 (specifying jurisdiction of Tax




   2
     In addition, the procedural protections provided by I.R.C. § 6330 do not apply when
the IRS “has served a levy on a State to collect a Federal tax liability from a State tax
refund.” I.R.C. § 6330(f)(2). The taxpayer is nevertheless provided “the opportunity for
the hearing described in this section within a reasonable period of time after the levy.” Id.
§ 6330(f). According to the lead tax examiner’s declaration, the notices of intent to levy
on the Vivenzios’ state tax refunds were never actually executed.

                                              5
Court); Comm’r v. McCoy, 484 U.S. 3, 7 (1987) (per curiam) (“The Tax Court is a court

of limited jurisdiction and lacks general equitable powers.” (citation omitted)). It does

have the authority to consider the IRS’s rejection of a taxpayer’s proposed collection

alternatives, such as an offer in compromise, as part of its review of an underlying notice

of determination. See, e.g., I.R.C. §§ 6330(c)(2)(A)(iii), (c)(3)(B), (d)(1); Fifty Below

Sales & Mktg., Inc. v. United States, 497 F.3d 828, 830 (8th Cir. 2007); Olsen v. United

States, 414 F.3d 144, 150 (1st Cir. 2005). However, “the handling and processing of an

offer in compromise not submitted in conjunction with a CDP hearing is not subject to

judicial review at all.” Olsen, 414 F.3d at 156 (emphasis added) (citation omitted).

Because the offer made by the Vivenzios was “not submitted in conjunction with a CDP

hearing,” the Tax Court lacked jurisdiction to review the denial of this offer.3

       Finally, we must reject Mr. Vivenzio’s unsupported constitutional claims. By

holding that it lacked jurisdiction because of the absence of a notice of determination, the

Tax Court essentially determined that the current case was premature. If the IRS wishes

in the future to proceed with a levy or lien collection action, Mr. Vivenzio will apparently

have the opportunity to request administrative and possibly judicial review of the


   3
     Mr. Vivenzio appears to argue that the Eighth Circuit’s decision in Speltz v.
Commissioner, 454 F.3d 782 (8th Cir. 2006), recognized “an alternative basis” for the
Tax Court’s jurisdiction over the denial of the offer in compromise. (Appellant’s Reply
Br. at 3.) However, unlike in the present proceedings, the taxpayers in Speltz filed their
Tax Court petition after the IRS Office of Appeals conducted a CDP hearing and issued a
notice of determination sustaining the underlying lien filing and rejecting the taxpayers’
offer in compromise. Id. at 783.

                                              6
collection action in accord with the applicable requirements for seeking relief from either

the IRS Office of Appeals or the Tax Court. In the end, the Tax Court’s jurisdictional

ruling in this case did not “deprive taxpayers of a remedy against arbitrary administrative

action.” 4 Robinson v. United States, 920 F.2d 1157, 1161 (3d Cir. 1990) (allowing quiet

title action challenging procedural irregularity of tax lien to proceed in district court

where failure to send notice of deficiency denied taxpayers opportunity to obtain review

in Tax Court).

                                              III.

       For the foregoing reasons, we conclude that the Tax Court properly dismissed the

action for lack of jurisdiction. Accordingly, we will affirm. We also deny Mr.

Vivenzio’s request for oral argument.




   4
      We likewise must reject Mr. Vivenzio’s apparent assertions that the Tax Court
violated his due process and equal protection rights by allegedly failing to order
production of the alleged installment agreement and by not granting the motion to strike
the IRS’s September 27, 2006 submission as untimely. It appears that the Tax Court
properly determined that the discovery motion was premature given the preliminary stage
of the proceedings and its manifest lack of subject-matter jurisdiction. Furthermore, the
IRS did produce documentation in the Tax Court proceedings, and it addressed the
installment agreement and its supposed effects on jurisdiction in some detail. It therefore
cannot be said that Mr. Vivenzio suffered substantial prejudice from the Tax Court’s
apparent refusal to consider a motion to compel. Similarly, although the IRS’s response
was in fact filed one day after the Tax Court’s deadline, Mr. Vivenzio fails to indicate
how this minimal delay resulted in any prejudice to him.

                                               7
