                         T.C. Memo. 2003-207



                       UNITED STATES TAX COURT



                 KENNETH A. SAPP, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5759-02L.              Filed July 15, 2003.



     Kenneth A. Sapp, pro se.

     Veena Luthra, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before us on petitioner’s

motion to dismiss for lack of jurisdiction.1     We shall deny that

motion.


     1
      Petitioner filed a memorandum (petitioner’s memorandum) in
support of his motion to dismiss for lack of jurisdiction. (We
shall refer collectively to that motion and that memorandum as
petitioner’s motion.)
                                - 2 -

                            Background

     The record establishes and/or the parties do not dispute the

following:

     At the time petitioner timely filed the petition in this

case, he resided in Powhatan, Virginia.

     On February 5, 2002, respondent’s Appeals Office (Appeals

Office) mailed to petitioner a notice of determination concerning

collection actions(s) under section 6320 and/or 63302 (notice of

determination).   That notice, which pertained to petitioner’s

taxable years 1990, 1991, 1992, 1993, and 1996, stated in perti-

nent part:

     Summary of Determination

     The Internal Revenue Service mailed a Letter 1058,
     Final Notice - Notice Of Intent To Levy And Notice Of
     Your Right To A Hearing, on March 7, 2001 concerning
     the unpaid Federal income tax (Form 1040) for the
     periods ending noted above [taxable years 1990, 1991,
     1992, 1993, and 1996]. In response to the letter you
     submitted Form 12153, received April 2, 2001, request-
     ing a Collection Due Process Hearing. Your request was
     forwarded to this Appeals Office.

     Since you did not respond to the Appeals Officer’s
     request for information nor attend the scheduled con-
     ference on October 9, 2001, we will return you [sic]
     case to the Collection function for collection appro-
     priate action.

An attachment to the notice of determination stated in pertinent

part:


     2
      All section references are to the Internal Revenue Code in
effect for the years at issue. All Rule references are to the
Tax Court Rules of Practice and Procedure.
                               - 3 -

     Applicable Law and Administrative Procedures

     IRC section 6631(d) requires that the IRS notify a
     taxpayer at least 30 days before the day of levy.
     Notice CP 523 was mailed to you via certified mail.

     IRC section 6630(a) states that no levy may be made
     unless the IRS notifies a taxpayer of the opportunity
     for a hearing with the IRS Office of Appeals. Notice
     CP 523 “Notice of Intent to Levy” was mailed to you via
     certified mail. You made a timely request for a hear-
     ing.

     IRC section 6330(c) allows you to raise any relevant
     issue relating to the unpaid tax or the proposed levy
     at the hearing.

     Relevant Issues Raised by the Taxpayer

     You did not attend the Scheduled hearing and have not
     responded to any contact by the Appeals Office.

     Balancing Collection and Intrusiveness

     The outstanding tax liabilities for 1990, 1991, 1992
     and 1993 are based on the returns you filed for those
     years. The 1996 liability is based on information the
     IRS had on file. * * *

     Since you have not responded to any contact by the
     Appeals Office, your case will be returned to the
     Collection function for appropriate action.

     Respondent acknowledges in respondent’s response to peti-

tioner’s motion:   “The February 5, 2002, Notice of Determination

did not contain all the statements required by Treas. Reg. §

301.6330-1(e)(3) Q&A-E8.   For this reason, Appeals sent to

petitioner the Supplemental Notice dated May 1, 2003.”

     The “Supplemental Notice dated May 1, 2003" referred to in

respondent’s response to petitioner’s motion is a supplemental

notice of determination concerning collection actions(s) under
                                - 4 -

section 6320 and/or 6330 (supplemental notice of determination),

which the Appeals Office mailed to petitioner on May 1, 2003,

after petitioner filed the petition in this case.   That supple-

mental notice, which pertained to petitioner’s taxable years

1990, 1991, 1992, 1993, and 1996, stated in pertinent part:

     Summary of Determination

     The Internal Revenue Service mailed a Letter 1058,
     Final Notice - Notice Of Intent To Levy And Notice Of
     Your Right To A Hearing, on March 7, 2001 concerning
     the unpaid Federal income tax (Form 1040) for the
     periods ending noted above [taxable years 1990, 1991,
     1992, 1993, and 1996]. In response to the letter you
     submitted Form 12153, received April 2, 2001, request-
     ing a Collection Due Process Hearing. Your request was
     forwarded to this Appeals Office.

     Since you did not respond to the Appeals Officer’s
     request for information nor attend the scheduled con-
     ference on October 9, 2001, this office issued a Notice
     of Determination. We are returning your case to the IRS
     Area Counsel’s office for trial preparation.

An attachment to the supplemental notice of determination stated

in pertinent part:

     Legal and Procedural Requirements

     The Appeals Officer verified that the applicable laws
     and administrative procedures have been met. IRC Sec.
     6321 provides a statutory lien when a taxpayer neglects
     or refuses to pay a tax liability after notice and
     demand. Transcripts of the taxpayer’s accounts show
     the Service Center issued notice and demand as follows:
                         - 5 -

     Year                       Date

     1990                    September 21, 1992
     1991                    July 19, 1993
     1992                    August 1, 1994
     1993                    August 1, 1994
     1996                    November 9, 1998

The obligations remain unpaid; the transcripts indicate
that assessments were made on the date the notices were
issued.

     *       *       *         *       *          *   *

This Appeals Officer has had no prior involvement with
respect to these liabilities * * *.

The outstanding liabilities for 1990-1993 are based on
returns you filed for those years. The 1996 liability
is based on a NOTICE OF DEFICIENCY. * * * Review of
your file shows the Internal Revenue Service issued the
NOTICE OF DEFICIENCY on June 5, 1998 for the 1996
taxable year and you did not appeal the notice.

Validity of the Assessment

The assessments are all valid according to the Appeals
Officer’s review of the transcripts of account.

     *       *       *         *       *          *   *

Balancing Efficient Collection and Intrusiveness

IRC Sec. 6330 requires that the Appeals Officer con-
sider whether any collection action balance [sic] the
need for efficient tax collection with the legitimate
concern that any collection action be no more intrusive
than necessary. You have not provided an acceptable
payment alternative to the proposed levy action that
would satisfy the underpayments. Therefore, it is
determined that the proposed levy action balances the
Government’s need for effective tax collection with
your legitimate concerns of intrusiveness.
                               - 6 -

                            Discussion

     In support of petitioner’s motion, petitioner argues:

          On its face, the * * * [notice of determination]
     is invalid: it fails to comply with a notice’s spe-
     cific content requirements as set forth in Treasury
     Regulation § 301.6330-1(e)(3)(Q&A-E8)(i); it fails to
     comply with a notice’s general content requirements as
     set forth in I.R.C. § 6330(c)(3). By issuing the * * *
     [supplemental notice of determination] to Petitioner,
     Respondent has affirmed that the * * * [notice of
     determination] is invalid.

          The Court’s jurisdiction under I.R.C. § 6330(d)(1)
     depends upon the issuance of a valid Notice of Determi-
     nation. Goza v. Commissioner, 114 T.C. 176, 182
     (2000). Yet no valid Notice of Determination has been
     issued in this case. Therefore, the Court should
     dismiss this case for lack of jurisdiction. [Repro-
     duced literally.]

     In petitioner’s memorandum, petitioner elaborates on the

foregoing arguments as follows:

          The * * * [notice of determination] issued in this
     case, inter alia, neglects to set forth Appeals’ find-
     ings and decisions; does not resolve the issue raised
     by Petitioner in his Form 12153, Request for a Collec-
     tion Due Process hearing; and fails to state whether
     the IRS met the requirements of any applicable law or
     administrative procedure. I.R.C. §6330(c)(3). Treasury
     Regulation § 301.6330-1(e)(3)(Q&A-E8)(i). [Reproduced
     literally.]

     The Court has jurisdiction to review the determination made

under section 6330(c)(3) by the Appeals Office of the Internal

Revenue Service upon the timely filing of a petition.   Sec.

6330(d)(1)(A).   The Court has held that a “written notice that

embodies a determination to proceed with the collection of the

taxes in issue” is a determination for purposes of the Court’s
                                 - 7 -

jurisdiction under section 6330(d)(1)(A).        Lunsford v. Commis-

sioner, 117 T.C. 159, 164 (2001).

     The notice of determination in the instant case stated:

     Since you did not respond to the Appeals Officer’s
     request for information nor attend the scheduled con-
     ference on October 9, 2001, we will return you [sic]
     case to the Collection function for collection appro-
     priate action.

We hold that the notice of determination embodies a determination

to proceed with the collection of petitioner’s tax liability for

each of his taxable years 1990, 1991, 1992, 1993, and 1996.       We

further hold that we have jurisdiction to review that determina-

tion in the instant case.3

     We have considered all of the contentions and arguments of

petitioner that are not discussed herein, and we find them to be

without merit and/or irrelevant.

     To reflect the foregoing,


                                         An order denying petitioner’s

                                 motion will be issued.




     3
      Respondent’s acknowledgement in respondent’s response to
petitioner’s motion that the notice of determination “did not
contain all the statements required by Treas. Reg. § 301.6330-
1(e)(3) Q&A-E8" does not affect our jurisdiction to review the
determination in that notice to proceed with the collection of
petitioner’s tax liability for each of his taxable years 1990,
1991, 1992, 1993, and 1996.
