                    116 T.C. No. 20



                UNITED STATES TAX COURT



     DUDLEY AND DOROTHY MOORHOUS, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10761-00L.                  Filed April 23, 2001.



     On Mar. 16, 1999, R mailed to P-H a final notice
of intent to levy concerning P-H’s unpaid tax
liabilities for the years 1987 through 1992 and 1997.
On Apr. 27, 1999, R mailed to P-W a final notice of
intent to levy concerning P-W’s unpaid tax liabilities
for the years 1989 through 1992. On May 10, 1999, Ps
filed a joint request for an administrative hearing
with the Internal Revenue Service Office of Appeals
(Appeals Office). P-H failed to file his request for
an administrative hearing within the 30-day period
prescribed in sec. 6330, I.R.C.

     Despite P-H’s failure to file a timely request for
an Appeals Office hearing, R granted P-H a so-called
equivalent hearing. P-W was granted an administrative
hearing pursuant to sec. 6330, I.R.C. On Oct. 6, 2000,
R issued a “decision letter” to P-H stating that R
would proceed with collection against him. On Oct. 6,
2000, R issued a determination letter to P-W stating
that R would proceed with collection against her and
                               - 2 -

     informing her of her right to challenge the
     determination in Court. On Oct. 16, 2000, Ps filed a
     joint petition for review with the Court. In response
     to the petition, R filed a motion to dismiss for lack
     of jurisdiction as to P-H and to strike as to certain
     taxable years.

          Held: R’s decision to conduct a so-called
     equivalent hearing did not result in a waiver by R of
     the time restrictions imposed upon P-H for requesting
     an Appeals Office hearing pursuant to sec. 6330, I.R.C.
     Kennedy v. Commissioner, 116 T.C. __ (2001), followed.

          Held, further, insofar as the petition filed
     herein purports to be a petition for review filed by P-
     H, the Court lacks jurisdiction on the ground that R
     did not issue a determination letter to P-H pursuant to
     sec. 6330, I.R.C., due to P-H’s failure to file a
     timely request for an Appeals Office hearing under sec.
     6330(a)(2) and (3)(B) and (b), I.R.C.

          Held, further, R was not barred from issuing
     separate notices of intent to levy to P-H and P-W
     despite the fact that they may have filed joint returns
     for the years in issue. The term “person” as used in
     sec. 6330, I.R.C., does not require R to treat a
     husband and wife who filed a joint return for a
     particular year as a single unit.



     John F. Rodgers, for petitioners.

     Jeffrey E. Gold, for respondent.



                              OPINION

     RUWE, Judge:   This case was assigned to Special Trial Judge

Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(4) and Rules 180, 181, and 183.1   The Court agrees with


     1
         Unless otherwise indicated, all section references are to
                                                    (continued...)
                                - 3 -

and adopts the Opinion of the Special Trial Judge, which is set

forth below.

                 OPINION OF THE SPECIAL TRIAL JUDGE

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

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

Strike With Respect To Dudley Moorhous And As To Taxable Years

1987, 1988, and 1997.    As explained in detail below, we shall

grant respondent’s motion.

                             Background

     On or about March 16, 1999, respondent mailed to petitioner

Dudley Moorhous a Final Notice Of Intent To Levy And Notice Of

Your Right To A Hearing (notice of intent to levy) concerning his

unpaid tax liabilities for the years 1987 through 1992 and 1997.2

Petitioner Dudley Moorhous received the notice of intent to levy

on March 18, 1999, as reflected on the U.S. Postal Service Form

3811, Domestic Return Receipt, that was executed upon delivery of

the notice.    On or about April 27, 1999, respondent mailed to

petitioner Dorothy Moorhous a notice of intent to levy concerning



     1
      (...continued)
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
     2
        The notice of intent to levy stated that petitioner
Dudley Moorhous owed amounts from prior notices, additional
penalties, and interest totaling $24,944.87, $21,014.05,
$17,849.47, $10,228.66, $9,947.46, $19,333.82, and $101.23 for
the years 1987, 1988, 1989, 1990, 1991, 1992, and 1997,
respectively.
                                 - 4 -

her unpaid tax liabilities for the years 1989 through 1992.3

There is no dispute that the above-described notices of intent to

levy were mailed to petitioners’ last known address.    See sec.

6330(a)(2)(C).   Both of the above-described notices of intent to

levy stated in pertinent part:    “If you don’t pay the amount you

owe, make alternative arrangements to pay, or request Appeals

consideration within 30 days from the date of this letter, we may

take your property”.

     On May 10, 1999, petitioners filed with the Internal Revenue

Service Office of Appeals (Appeals Office) a joint request for a

collection hearing, Form 12153, with respect to their tax

liabilities for the years 1987 through 1992 and 1997.    Although

the Appeals Office concluded that petitioner Dudley Moorhous

failed to file his request for a hearing within the time

prescribed in section 6330, the Appeals Office granted petitioner

Dudley Moorhous a so-called equivalent hearing.   See sec.

301.6330-1T(i), Temporary Proced. & Admin. Regs., 64 Fed. Reg.

3413 (Jan. 22, 1999).

     On October 6, 2000, the Appeals Office issued to petitioner

Dudley Moorhous a “decision letter” stating that respondent would




     3
        The notice of intent to levy stated that petitioner
Dorothy Moorhous owed amounts from prior notices, additional
penalties, and interest totaling $17,909.98, $10,266.83,
$9,980.32, and $19,400.89, for the years 1989, 1990, 1991, and
1992, respectively.
                                - 5 -

proceed with collection by way of levy for the years 1987 through

1992 and 1997.    The decision letter stated in pertinent part:

     Your due process hearing request was not filed within
     the time prescribed under Section 6320 and/or 6330.
     However, you received a hearing equivalent to a due
     process hearing except that there is no right to
     dispute a decision by the Appeals Office in court under
     IRC Sections 6320 and/or 6330.

     On October 6, 2000, the Appeals Office issued to petitioner

Dorothy Moorhous a Notice of Determination Concerning Collection

Action(s) Under Sections 6320 and/or 6330 (notice of

determination).    The notice of determination stated that

petitioner Dorothy Moorhous was not eligible for an offer-in-

compromise.   The notice of determination further stated that

respondent would proceed with collection with respect to

petitioner Dorothy Moorhous’ tax liabilities for the years 1989

through 1992 and that petitioner Dorothy Moorhous would have 30

days to file a petition with the Tax Court contesting the matter.

     On October 16, 2000, petitioners filed with the Court a

joint Petition For Lien Or Levy Action Under Code Sections

6320(c) Or 6330(d).    See Rule 331(b).   The petition states in

pertinent part that petitioners challenge petitioner Dudley

Moorhous’ individual liabilities for the years 1987 and 1988 and

petitioners’ joint liabilities for the years 1989 through 1992

and 1997.   The petition includes an allegation that respondent

erred in failing to decide the offer-in-compromise that

petitioners filed with respondent in 1997.
                               - 6 -

     In response to the petition, respondent filed a Motion To

Dismiss For Lack Of Jurisdiction And To Strike With Respect To

Dudley Moorhous And As To Taxable Years 1987, 1988, And 1997.

Respondent asserts that the Court lacks jurisdiction with respect

to petitioner Dudley Moorhous on the ground that the “decision

letter” issued to him does not constitute a determination letter

sufficient to invoke the Court’s jurisdiction pursuant to section

6330(d).   Respondent contends that petitioner Dorothy Moorhous is

the only proper petitioner before the Court.   However, respondent

asserts that the Court lacks jurisdiction with respect to

petitioner Dorothy Moorhous as to the taxable year 1997 on the

ground that neither the notice of intent to levy nor the

determination letter that was issued to her included that taxable

year.4

     Petitioner Dudley Moorhous filed an objection to

respondent’s motion to dismiss asserting:   (1) Respondent failed

to file his motion to dismiss in a timely manner; (2) where a

husband and wife have filed a joint return, the term “person” as

used in section 6330 should be read as referring to both husband

and wife, thereby barring respondent from issuing separate

notices of intent to levy to petitioners; and (3) to the extent



     4
       Originally, respondent asserted that the Court lacks
jurisdiction with respect to petitioner Dorothy Moorhous as to
the taxable years 1987, 1988, and 1997. However, respondent
later modified his position, as discussed in the text, infra.
                              - 7 -

that respondent’s determination letter to petitioner Dorothy

Moorhous rejected petitioners’ joint offer-in-compromise,

petitioner Dudley Moorhous should be permitted to file a petition

challenging the determination letter.

     This matter was called for hearing at the Court’s motions

session held in Washington, D.C.   Counsel for both parties

appeared at the hearing and offered argument in respect of

respondent’s motion to dismiss.    During the hearing, counsel for

respondent clarified that respondent’s motion to dismiss and to

strike should only have requested that the taxable year 1997 be

stricken, inasmuch as the petition clearly states that

petitioners are challenging petitioner Dudley Moorhous’

individual liability for the taxable years 1987 and 1988 and not

petitioner Dorothy Moorhous’ liability for those years.

                           Discussion

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

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

notice and demand for payment, the Secretary is authorized to

collect such tax by way of a levy upon the person’s property.

Section 6331(d) provides that at least 30 days prior to

proceeding with enforced collection by way of a levy on a

person's property, the Secretary is obliged to provide the person

with a final notice of intent to levy, including notice of the

administrative appeals available to the person.
                                - 8 -

       In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide protections for taxpayers in

tax collection matters.    Section 6330 generally 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.    See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

       Section 6330(a) provides in pertinent part that the

Secretary shall notify a person in writing of his or her right to

an Appeals Office hearing regarding a notice of intent to levy by

mailing such notice by certified or registered mail, return

receipt requested, to such person’s last known address.      Section

6330(a)(2) provides that the prescribed notice 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.

Further, section 6330(a)(3)(B) provides that the prescribed

notice shall explain that the person has the right to request an

Appeals Office hearing during the 30-day period under paragraph

(2).
                               - 9 -

     Section 6330(c) prescribes the matters that may be raised by

a taxpayer at an Appeals Office hearing.   In sum, section 6330(c)

provides that a taxpayer may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection, such as an offer-in-compromise.   Section

6330(c)(2)(B) provides that the existence and amount of the

underlying tax liability can be contested at an Appeals Office

hearing only if the taxpayer did not receive a notice of

deficiency for the taxes in question or did not otherwise have an

earlier opportunity to dispute such tax liability.   See Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,

supra.

     Where the Appeals Office issues a determination letter to a

taxpayer following an administrative hearing regarding a notice

of intent to levy, section 6330(d)(1) provides that the taxpayer

will have 30 days following the issuance of such determination

letter to file a petition for review with the Tax Court or

Federal District Court.   See Offiler v. Commissioner, 114 T.C.

492, 498 (2000).   We have held that the Court’s jurisdiction

under sections 6320 and 6330 depends on the issuance of a valid

determination letter and the filing of a timely petition for

review.   See Meyer v. Commissioner, 115 T.C. 417, 421 (2000);

Offiler v. Commissioner, supra at 498.
                               - 10 -

     1. Petitioner Dudley Moorhous’ Failure To Make a Timely
     Request for an Administrative Hearing

     On March 16, 1999, respondent issued to petitioner Dudley

Moorhous a notice of intent to levy.    Petitioner Dudley Moorhous

received the notice of intent to levy on March 18, 1999, as

reflected on the U.S. Postal Service Form 3811 that was executed

upon delivery of the notice.   The notice informed petitioner

Dudley Moorhous that he had 30 days from the date of the notice

to file a request for an Appeals Office hearing.

     On April 27, 1999, respondent issued to petitioner Dorothy

Moorhous a notice of intent to levy.

     On or about May 10, 1999, petitioners submitted to the

Appeals Office a joint request for a hearing.   The 30-day period

prescribed in section 6330(a)(2) and (3)(B) during which

petitioner Dudley Moorhous had to file a timely request for an

Appeals Office hearing expired no later than Monday, April 19,

1999.   Because petitioners’ joint request for an Appeals Office

hearing was not timely with respect to the notice of intent to

levy issued to petitioner Dudley Moorhous, the Appeals Office was

not obliged to provide him with the administrative hearing

contemplated under section 6330.   On the other hand, because

petitioners’ joint request for an Appeals Office hearing was

timely with respect to the notice of intent to levy issued to

petitioner Dorothy Moorhous, the Appeals Office was obliged to

provide her with a section 6330 hearing.
                                - 11 -

     2.    Equivalent Hearing

     In lieu of a hearing under section 6330(b), the Appeals

Office granted petitioner Dudley Moorhous a so-called equivalent

hearing.    Consistent with the Court’s holding in Kennedy v.

Commissioner, 116 T.C. ___ (2001), we hold that the decision to

conduct an equivalent hearing did not result in a waiver by

respondent of the time restrictions within which petitioner

Dudley Moorhous was required to request an Appeals Office hearing

under section 6330.5

     3.    Decision Letter

     On October 6, 2000, following the equivalent hearing, the

Appeals Office issued to petitioner Dudley Moorhous a decision

letter stating that respondent would proceed with collection

against him.    The decision letter unambiguously states that the

equivalent hearing was not intended to serve as an Appeals Office

hearing within the meaning of section 6330.   On the other hand,

on October 6, 2000, the Appeals Office issued to petitioner

Dorothy Moorhous a determination letter stating that she would be

permitted to seek review of the matter in court.


     5
        In Kennedy v. Commissioner, 116 T.C. ___ (2001), we noted
that sec. 6330 does not authorize the Commissioner to waive the
time restrictions imposed therein. Further, in Offiler v.
Commissioner, 114 T.C. 492, 498 (2000), we indicated that where
the taxpayer failed to file a timely request for an Appeals
Office hearing regarding a notice of intent to levy, an Appeals
Office review of the taxpayer’s case pursuant to the Collection
Appeals Program did not result in a determination within the
meaning of sec. 6320 or sec. 6330.
                              - 12 -

     As previously discussed, because petitioner Dudley Moorhous

failed to file a timely request for an Appeals Office hearing,

the Appeals Office was not obliged to conduct such a hearing.    In

this regard, the decision letter issued to petitioner Dudley

Moorhous was not, and did not purport to be, a determination

letter pursuant to section 6320 or section 6330.   See Kennedy v.

Commissioner, supra; Offiler v. Commissioner, supra at 495.

     Consistent with the foregoing, we shall grant respondent’s

motion to dismiss for lack of jurisdiction as to petitioner

Dudley Moorhous on the ground that the Appeals Office did not

issue a determination letter to petitioner Dudley Moorhous

pursuant to section 6330 due to petitioner Dudley Moorhous’

failure to file a timely request for an Appeals Office hearing

pursuant to section 6330(a)(2) and (3)(B) and (b).   In addition,

we shall strike all references in the petition to the taxable

years 1987 and 1988 because those years relate solely to

petitioner Dudley Moorhous; likewise, we shall strike all

references to the taxable year 1997 because (1) such year relates

to petitioner Dudley Moorhous and (2) that year was not included

in the notice of intent to levy and the determination letter that

were issued to petitioner Dorothy Moorhous.

     4.   Petitioners’ Arguments

     Petitioners contend that because petitioners filed joint

returns for a number of the years in issue, the term “person” as
                                - 13 -

used in section 6330 should be read as referring to both husband

and wife as a single unit, thereby barring respondent from

issuing separate notices of intent to levy to them.

     Petitioners’ contention finds no support in the express

language of section 6330.   Simply put, section 6330 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.   Moreover, petitioners’ argument conflicts with

section 6013(d), which provides that “if a joint return is made,

the tax shall be computed on the aggregate income and the

liability with respect to the tax shall be joint and several.”

Because a husband and wife are treated as jointly and severally

liable for the tax due on a joint return, it follows that the

Commissioner may elect to pursue one or both the spouses for the

collection of the tax.   Under the circumstances, we hold that

respondent was free to issue a separate notice of intent to levy

to petitioner Dudley Moorhous before issuing a similar notice to

petitioner Dorothy Moorhous.6    Because petitioners are not

treated as one person under section 6330, petitioner Dudley




     6
       Indeed, in 1998, the Congress directed the Commissioner to
send, whenever practicable, any notice relating to a joint return
under sec. 6013 separately to each individual filing the joint
return. See Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. 105-206, sec. 3201(d), (g)(1), 112 Stat.
685, 740.
                              - 14 -

Moorhous may not join in challenging the determination letter

issued to petitioner Dorothy Moorhous.

     Petitioners also contend that to the extent that

respondent’s determination letter to petitioner Dorothy Moorhous

served as a rejection of petitioners’ joint offer-in-compromise,

petitioner Dudley Moorhous should be permitted to file a petition

challenging the determination letter.    Again, petitioners’

argument finds no support in section 6330.    Although section

6330(c)(2)(A)(iii) provides that a taxpayer may make an

offer-in-compromise during an Appeals Office hearing, there is no

support for petitioners’ contention that petitioner Dudley

Moorhous should be relieved of the obligation to comply with the

time requirements for filing an Appeals Office hearing pursuant

to section 6330(a).   In the end, petitioners’ position begs the

question why petitioner Dudley Moorhous did not timely file a

request for an administrative hearing in response to the notice

of intent to levy issued to him.

     As final matter, we reject petitioners’ argument that

respondent’s motion to dismiss is untimely.    It is well settled

that questions of jurisdiction may be raised by either party or

the Court sua sponte at any stage of the proceedings.    See Smith

v. Commissioner, 96 T.C. 10, 13-14 (1991).

     Consistent with the preceding discussion, we shall grant

respondent’s motion in that we shall dismiss this case for lack
                             - 15 -

of jurisdiction as to petitioner Dudley Moorhous, and all

allegations in the petition pertaining to the taxable years 1987,

1988, and 1997 will be deemed to be stricken therefrom.

     In order to reflect the foregoing,



                                   An appropriate order granting

                              respondent’s motion to dismiss for

                              lack of jurisdiction and to strike

                              will be issued.
