                        T.C. Memo. 2005-96



                      UNITED STATES TAX COURT



         MYONG SOO KIM AND SUNG ME HWANG, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17168-02L.             Filed May 3, 2005.


     Myong Soo Kim and Sung Me Hwang, pro sese.

     Lisa M. Oshiro, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction, as

supplemented, on the ground that respondent issued an invalid

notice of determination concerning a collection action under

section 6330.1


     1
      Unless otherwise indicated, all section references are to
                                                   (continued...)
                                -2-

                         FINDINGS OF FACT

     Petitioners resided in Olympia, Washington, when the

petition in this case was filed.

     On February 4, 2002, respondent issued a Final Notice--

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

(the NIL) to petitioner Myong Soo Kim (Mr. Kim) with respect to

his Federal income tax liability for 1997, and a separate NIL to

Mr. Kim and Sung Me Hwang (Ms. Hwang) with respect to their

Federal income tax liability for 1999.   The NILs informed

petitioners of respondent’s intent to levy upon their property

pursuant to section 6331 and of their right to a hearing with the

Internal Revenue Service’s (IRS) Office of Appeals (Appeals)

under section 6330.   In response, petitioners submitted two Forms

12153, Request For a Collection Due Process Hearing (hereinafter

section 6330 hearing), one for 1997 and one for 1999, each

postmarked March 14, 2002.   Respondent received the Forms 12153

on March 18, 2002.

     On July 29, 2002, Appeals Officer Geraldine H. Melick

(Appeals Officer Melick) was assigned to petitioners’ case.    By

letter dated July 30, 2002, Appeals Officer Melick informed

petitioners that their section 6330 hearing requests were not



     1
      (...continued)
the Internal Revenue Code in effect at the time the petition in
this case was filed, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
                                -3-

timely filed but that they were entitled to an equivalent

hearing.   When petitioners did not respond to the letter, Appeals

Officer Melick sent a second letter, dated August 14, 2002,

inviting petitioners to discuss their case with her.   Petitioners

also failed to respond to the second letter, and no Appeals

hearing was conducted.

     On September 26, 2002, Appeals issued a Notice of

Determination Concerning Collection Action Under Section 6330

(notice of determination) sustaining the proposed levy.   The

notice of determination addressed the issues raised by

petitioners in protesting the levy, stated that the levy was

necessary to ensure efficient collection of taxes, and confirmed

that the IRS had met the requirements of the applicable laws and

administrative procedures.   It also clearly stated that it was

petitioners’ “legal Notice of Determination, as required by law.”

Furthermore, the notice of determination informed petitioners

that if they wanted to dispute the determination in court, they

had to “file a petition with the United States Tax Court for a

redetermination within 30 days from the date of this letter”, or

by October 28, 2002.

     On October 24, 2002, petitioners mailed a letter in an

envelope addressed to the “Clerk, United States Tax Court”, which

we filed on October 31, 2002, as petitioners’ imperfect petition.

Because the imperfect petition did not meet the requirements of
                                 -4-

Rule 331(b), we ordered petitioners to file a proper amended

petition by February 14, 2003.   On February 21, 2003,

petitioners’ amended petition was filed.2   On March 25, 2003,

respondent’s answer was filed.

     On October 8, 2003, respondent’s motion to dismiss for lack

of jurisdiction was filed.   In the motion, respondent alleged for

the first time that the notice of determination was invalid.

Petitioners objected to respondent’s motion.   On January 2, 2004,

respondent’s supplement to his motion to dismiss for lack of

jurisdiction was filed.3   On February 26, 2004, we held a hearing

on respondent’s motion in Seattle, Washington.    Petitioners and

counsel for respondent appeared and were heard.

                              OPINION

I.   Collection by Levy in General

     Section 6331(a) provides that if any taxpayer liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, then the Secretary is authorized

to collect such tax by levy upon the taxpayer’s property.

Section 6331(d) provides that, at least 30 days before enforcing

collection by way of a levy, the Secretary is obliged to provide




     2
      The amended petition is dated Feb. 12, 2003, and the
parties do not dispute its timeliness.
     3
      We shall refer to the motion to dismiss, as supplemented,
as the motion in this opinion.
                                -5-

the taxpayer with a written notice of his intent to levy and of

the administrative appeal available to the taxpayer.    Sec.

6331(d)(4)(C).

     Section 6330(a) requires the Secretary to send written

notice to the taxpayer of his right to request a hearing with

Appeals (section 6330 hearing) before a levy is made.    Section

6330(a)(2) provides that the prescribed notice must be provided

not less than 30 days before the day of the first levy, and

section 6330(a)(3)(B) provides that the notice must inform the

taxpayer that he has the right to request a section 6330 hearing

during the 30-day period under section 6330(a)(2).    See sec.

301.6330-1(c), Q&A-C3, Proced. & Admin. Regs.    The taxpayer’s

request for the section 6330 hearing must be submitted in

writing.   Sec. 301.6330-1(c)(2), Q&A-C1, Proced. & Admin. Regs.

If the written request is properly addressed, with postage

prepaid, and is postmarked within the applicable 30-day response

period, in accordance with section 7502, the request will be

considered timely even if it is not received by the IRS office

that issued the notice until after the 30-day response period.

Sec. 301.6330-1(c)(2), Q&A-C4, Proced. & Admin. Regs.

     If a section 6330 hearing is conducted, the taxpayer may

raise any relevant matter set forth in section 6330(c)(2) at the

hearing, and the Appeals officer shall make a “determination” as

to those matters.   Sec. 6330(c)(3).   Appeals will issue its
                                 -6-

determination in the form of a notice of determination setting

forth its findings and decisions.      Sec. 301.6330-1(e)(3), Q&A-E8,

Proced. & Admin. Regs.   When Appeals issues the notice of

determination, the taxpayer has 30 days following the issuance to

file a petition for review of the determination with this Court

or a Federal District Court, as may be appropriate.     Sec.

6330(d)(1).

     A taxpayer who fails to timely request a section 6330

hearing is not entitled to a section 6330 hearing but may

nevertheless request an administrative hearing with Appeals that

is referred to as an “equivalent hearing”.     Sec. 301.6330-

1(i)(1), Proced. & Admin. Regs.; see also sec. 301.6330-1(c)(2),

Q&A-C7, Proced. & Admin. Regs.   The equivalent hearing generally

follows Appeals’s procedures for a section 6330 hearing, and

Appeals will consider the same issues it would have considered at

a section 6330 hearing on the same matter.     Sec. 301.6330-1(i)(1)

and (2), Q&A-I1, Proced. & Admin. Regs.     Rather than issue a

notice of determination after an equivalent hearing, however,

Appeals will issue a decision letter.     Sec. 301.6330-1(i)(1),

Proced. & Admin. Regs.   A decision letter generally contains the

same information required to be in a notice of determination,

except that it ordinarily states in regard to most issues that a

taxpayer may not seek judicial review of the decision.      Craig v.
                                     -7-

Commissioner, 119 T.C. 252, 258-259 (2002); see also sec.

301.6330-1(i)(2), Q&A-I4 and I5, Proced. & Admin. Regs.

      If the Court has general jurisdiction over the type of tax

involved, a valid notice of determination and a timely filed

petition are the only requirements for the exercise of its

jurisdiction under section 6330(d)(1).      Lunsford v. Commissioner,

117 T.C. 159, 161 (2001); Sarrell v. Commissioner, 117 T.C. 122,

125 (2001).      Section 6330 does not authorize judicial review of

an Appeals decision made with respect to an equivalent hearing,

and the absence of a determination by Appeals is grounds for

dismissal of a petition that purports to be based on section

6330.      Kennedy v. Commissioner, 116 T.C. 255, 261 (2001); Offiler

v. Commissioner, 114 T.C. 492, 498 (2000); sec. 301.6330-1(i)(2),

Q&A-I5, Proced. & Admin Regs.

II.       The Parties’ Contentions

      The parties do not dispute that the Court has general

jurisdiction over the Federal income taxes involved,4 and

respondent concedes that the petition was timely filed.

Respondent contends, however, that the notice of determination

was issued in error and is invalid because petitioners did not



      4
      This Court generally has jurisdiction over income, gift and
estate tax cases for purposes of sec. 6330(d)(1). See secs.
6211(a), 6213(a), 6214(a); Landry v. Commissioner, 116 T.C. 60,
62 (2001); Katz v. Commissioner, 115 T.C. 329, 339 (2000); Van Es
v. Commissioner, 115 T.C. 324, 328 (2000); Goza v. Commissioner,
114 T.C. 176, 182 (2000).
                                   -8-

timely request a section 6330 hearing, that the hearing that was

offered petitioners was an equivalent hearing and not a section

6330 hearing, and that respondent should have issued a decision

letter instead of a notice of determination.      Respondent argues

that

       Even if Appeals erroneously issued a notice of
       determination to a taxpayer who filed his/her hearing
       request late, the mere fact the taxpayer was issued a
       notice of determination cannot confer jurisdiction on
       the Tax Court * * *, any more than a decision letter
       issued to the taxpayer can deprive the Court of
       jurisdiction under section 6330(d).

       Although petitioners object to respondent’s motion, they do

not specifically contend that the notice of determination is

valid.      Instead, petitioners argue that their case should not be

dismissed, and they challenge the existence and amounts of the

income tax liabilities underlying the notice of determination.

III.     Analysis

       A.   Jurisdiction

       Respondent relies on Craig v. Commissioner, supra, to

support his argument for dismissal.      In Craig, the taxpayer

timely requested a section 6330 hearing, but Appeals mistakenly

conducted an equivalent hearing and subsequently issued a

decision letter.      Id. at 253, 256.   We held that the “decision”

contained in the decision letter constituted a “determination”

for purposes of section 6330(d) because the taxpayer’s request

for a section 6330 hearing was timely.       Id. at 259.   In arriving
                                -9-

at this holding, we examined both the decision letter and the

timeliness of the taxpayer’s request in order to decide whether

Appeals had made a valid determination.

     Respondent’s reliance on Craig is misplaced.    In Craig,

Appeals did not issue a notice of determination.    Instead,

Appeals issued a decision letter that, on its face, did not

establish a basis for our jurisdiction.   As a result, in order to

ascertain whether Appeals had made the determination required by

section 6330, we examined both the decision letter and the

timeliness of the taxpayer’s request for a section 6330 hearing

to arrive at our conclusion that the Appeals decision letter

contained the determination required by section 6330.    Craig does

not stand for the proposition that we may look behind a facially

valid notice of determination in response to the Commissioner’s

contention that the notice of determination was erroneously

issued.   See Lunsford v. Commissioner, supra.

     In Lunsford, we were presented with the issue of whether a

facially valid notice of determination was sufficient to confer

jurisdiction over a section 6330 proceeding in which no section

6330 hearing had been held before the notice of determination had

been issued.   The taxpayer in Lunsford had timely requested a

section 6330 hearing, but no administrative hearing of any kind

had been conducted.   Id. at 161.   Appeals nevertheless issued a

notice of determination, and the taxpayer filed a timely
                                 -10-

petition.   Id. at 162.   In deciding whether we had jurisdiction

over the resulting section 6330 proceeding, we stated that,

consistent with our approach in deficiency cases, we would only

examine the notice of determination to decide whether it was

valid for jurisdictional purposes and that we would not look

behind the notice to assess its validity.     Id. at 163-164; see

also Offiler v. Commissioner, supra at 498.     We further stated:

     Whether there was an appropriate hearing opportunity,
     or whether the hearing was conducted properly * * *, or
     whether any of the other nonjurisdictional provisions
     of section 6330 were properly followed, will all be
     factors that we must take into consideration under
     section 6330 in deciding such cases. But none of these
     factors should preclude us from exercising our
     jurisdiction under section 6330(d), in order to resolve
     the underlying dispute in a fair and expeditious
     manner.

Lunsford v. Commissioner, supra at 164.     Accordingly, we held

that if Appeals issues a notice of determination that clearly

embodies the Appeals officer’s determination concerning

collection by way of levy and the taxpayer timely files a

petition contesting the determination, then regardless of whether

the taxpayer was given an appropriate hearing opportunity, we

have jurisdiction to review the determination.     Id. at 165.

     Although neither Lunsford nor Craig is exactly on point, the

facts of this case more closely resemble those of Lunsford than

Craig.   Petitioners requested a section 6330 hearing, but no

Appeals hearing was conducted.   Appeals then issued a notice of

determination.   The notice of determination is valid on its face,
                               -11-

in that it was mailed to the last known address of petitioners,

it clearly contains the determination of Appeals that the

requirements of section 6330 have been met and that the levy

action should be sustained, and it informs petitioners that they

may appeal the determination to this Court.   There is nothing in

the notice of determination that leads us to conclude that the

notice is invalid.   Therefore, regardless of whether Appeals

should have issued a decision letter, a notice containing the

determination of Appeals was issued, and it is this determination

that triggers our jurisdiction under section 6330(d), if, as

here, we have general jurisdiction over the type of tax involved

and a timely petition for review has been filed.

     B.   Petitioners’ Claim to Section 6330 Relief

     Although we reject respondent’s argument that we must

dismiss this case for lack of jurisdiction, it is nevertheless

apparent that petitioners are not entitled to relief under

section 6330.   We shall treat respondent’s motion as a motion for

summary judgment5 under Rule 121, and we shall grant respondent’s


     5
      Summary judgment is a procedure designed to expedite
litigation and avoid unnecessary, time-consuming, and expensive
trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681
(1988). Summary judgment may be granted with respect to all or
any part of the legal issues presented “if the pleadings, answers
to interrogatories, depositions, admissions, and any other
acceptable materials, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that a
decision may be rendered as a matter of law.” Rule 121(a) and
(b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
                                                   (continued...)
                                  -12-

motion as recharacterized because there is no genuine issue as to

any material fact, and a decision may be rendered as a matter of

law.

       The undisputed relevant facts establish that petitioners

failed to timely request a section 6330 hearing within the 30-day

period provided by section 6330(a)(2).     Sec. 301.6330-1(c)(1),

Proced. & Admin. Regs.      Respondent issued the NILs on February 4,

2002.      In response to the NILs, petitioners submitted two Forms

12153, Request For a Collection Due Process Hearing, each of

which was postmarked March 14, 2002.     Respondent received the

Forms 12153 on March 18, 2002.      The Forms 12153 were not mailed

by petitioners or received by respondent within the 30-day period

beginning on February 4, 2002.

       Section 6330 requires a taxpayer to timely request a section

6330 hearing.      Sec. 6330(a)(3); sec. 301.6330-1(c)(1) and (2),

Q&A-C3, C5-C7, Proced. & Admin. Regs.; see also Craig v.

Commissioner, 119 T.C. at 257; Kennedy v. Commissioner, 116 T.C.

at 262; Offiler v. Commissioner, 114 T.C. at 497.      Petitioners

did not do so.      Section 6330 does not authorize the Commissioner

to waive the time restrictions imposed therein, nor does it


       5
     (...continued)
(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988). The moving party bears
the burden of proving that there is no genuine issue of material
fact, and factual inferences will be read in a manner most
favorable to the party opposing summary judgment. Dahlstrom v.
Commissioner, 85 T.C. 812, 821 (1985).
                               -13-

authorize the Commissioner to lengthen or shorten the 30-day

period for requesting a section 6330 hearing.     Moorhous v.

Commissioner, 116 T.C. 263, 270 n.5 (2001); Kennedy v.

Commissioner, supra at 262.

      In this case, because petitioners did not timely request a

section 6330 hearing, petitioners were not entitled to such a

hearing and were not offered one.     Consequently, we shall grant

respondent’s deemed motion for summary judgment.

IV.    Conclusion

      Although we deny respondent’s motion insofar as it asks us

to dismiss this case for lack of jurisdiction, it is clear that

petitioners are not entitled to relief under section 6330.      We

have treated respondent’s motion as a motion for summary

judgment, and we shall grant respondent’s motion because

petitioners did not timely request a section 6330 hearing.


                                           An appropriate order and

                                      decision will be entered.
