                       T.C. Memo. 2002-167



                     UNITED STATES TAX COURT



                  ROGER STOEWER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2674-01L.               Filed July 8, 2002.


     Roger Stoewer, pro se.

     Wendy S. Harris, for respondent.



                       MEMORANDUM OPINION


     PAJAK, Special Trial Judge:   This case is before the Court

on petitioner’s Motion To Dismiss For Lack Of Jurisdiction and on

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

Strike With Respect To The Assessed Frivolous Return Penalty.

Section references are to the Internal Revenue Code as amended.
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     At the time the Petition for Lien or Levy Action Under

Section 6320(c) or 6330(d) was filed, petitioner resided in Las

Vegas, Nevada.

     On April 15, 1997, petitioner filed his 1996 Form 1040EZ,

Income Tax Return for Single and Joint Filers With No Dependents.

Petitioner’s 1996 return listed his address as 5125 Gray Lane,

Apartment C, Las Vegas, Nevada, 89119 (Gray Lane address).    On

his 1996 return, petitioner reported wages and salaries of zero.

Petitioner also reported that his adjusted gross income and

taxable income on his 1996 return was zero.   In a two-page

document attached to his 1996 return, petitioner stated in part:

     It should also be noted that I had “zero” income
     according to the Supreme Court’s definition of income
     (See Note #1), since in Merchant’s Loan & Trust Co v.
     Smietanka, 225 U.S. 509, (at pages 518 & 519) that
     Court held that “The word (income) must be given the
     same meaning in all of the Income Tax Acts of Congress
     that was given to it in the Corporation Excise Tax Act
     (of 1909).” Therefore, since I had no earnings in 1996
     that would have been taxable under the Corporation
     Excise Tax Act of 1909 as “income,” I can only swear to
     having “zero” income in 1996.* * *

     On April 15, 1998, petitioner filed his 1997 Form 1040EZ.

Petitioner’s 1997 return reflected his Gray Lane address.     Again,

petitioner reported wages and salaries of zero on his 1997

return.   Petitioner also reported that his 1997 adjusted gross

income and taxable income was zero.    Petitioner attached a two-

page document to his 1997 return which was essentially identical

to the two-page document attached to his 1996 return.
                               - 3 -

     On December 4, 1998, respondent mailed to petitioner at his

Gray Lane address two separate notices of deficiency related to

petitioner’s 1996 and 1997 taxable years, respectively.    In one

notice of deficiency, respondent determined an income tax

deficiency of $3,775 and an accuracy-related penalty under

section 6662(a) of $465 with respect to petitioner’s 1996 taxable

year.   In the other notice of deficiency, respondent determined

an income tax deficiency of $4,069 and an accuracy-related

penalty under section 6662(a) of $813.80 with respect to

petitioner’s 1997 taxable year.   Each notice of deficiency stated

that the deficiencies could be contested by petitioner’s filing a

petition with the Tax Court 90 days from the date of the notices

of deficiency.

     On or about January 12, 1999, petitioner sent two virtually

identical letters to respondent, one for each taxable year at

issue, which contested the authority of the notices of

deficiency.   Petitioner did not file a petition with the Tax

Court with respect to the notices of deficiencies.

     On May 24, 1999, respondent assessed the income tax

deficiencies and accuracy-related penalties against petitioner

with respect to his 1996 and 1997 taxable years.

     On June 14, 1999, respondent assessed a section 6702

frivolous return penalty with respect to each of petitioner’s

taxable years at issue.
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     On April 10, 2000, respondent filed a Notice of Federal Tax

Lien equal to the amount of taxes and penalties assessed by

respondent with respect to petitioner’s 1996 and 1997 taxable

years.

     On April 13, 2000, respondent issued to petitioner a Notice

Of Federal Tax Lien Filing And Your Right To A Hearing Under IRC

6320 with respect to petitioner’s 1996 and 1997 taxable years.

     On or about May 11, 2000, petitioner timely filed a Form

12153, Request For A Collection Due Process Hearing (Appeals

Office hearing request), in response to the notice of lien.

     On October 25, 2000, in response to petitioner’s Appeals

Office hearing request, an Appeals officer sent a letter to

petitioner in which he provided additional information regarding

the validity of the tax and penalty assessments against

petitioner.   The Appeals officer informed petitioner that the

statutory notices of deficiency were sent to his last known

address, that he failed to act upon the statutory notices, and

therefore that he was precluded from further challenging the

underlying tax liabilities.   The Appeals officer also informed

petitioner that he would schedule an Appeals Office hearing.

     On January 12, 2001, the Appeals officer conducted the

Appeals Office hearing with petitioner and his representative at

the Las Vegas office of the Internal Revenue Service.   At the

hearing, the Appeals officer provided petitioner with two Forms
                               - 5 -

4340, Certificate Of Assessments, Payments, And Other Specified

Matters, certified transcripts which detailed the assessment of

the income tax deficiencies and accuracy-related penalties with

respect to petitioner’s 1996 and 1997 taxable years.   Forms 4340

were also provided to petitioner with respect to the frivolous

return penalties assessed for each of his taxable years at issue.

The Appeals officer terminated the hearing after petitioner

declined to discuss any collection alternatives.

     On January 25, 2001, respondent’s Appeals Office sent

petitioner two separate “NOTICES OF DETERMINATION CONCERNING

COLLECTION ACTION(S) UNDER SECTION 6320 and/or 6330" stating

respondent’s intention to proceed with collection with respect to

petitioner’s 1996 and 1997 taxable years.   One notice of

determination related to the income taxes and accuracy-related

penalties assessed against petitioner and informed him that he

would have 30 days to contest the determination by filing a

petition with the Tax Court.   The notice of determination

included findings that all applicable statutory and

administrative procedures were met, that petitioner failed to

present any collection alternatives, and that the proposed lien

was appropriate.

     The other notice of determination related to the frivolous

return penalty assessments and informed petitioner that he would

have 30 days to contest the determination by filing a petition

with the appropriate United States District Court.
                               - 6 -

     On February 27, 2001, petitioner filed one petition with

this Court for review of both of respondent’s notices of

determination.

     On February 27, 2001, petitioner’s motion to dismiss was

filed.   On May 21, 2001, respondent’s motion with respect to the

frivolous return penalty was filed.

     Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person liable for taxes

when a demand for the payment of such taxes has been made and the

person fails to pay those taxes.    Such a lien arises when an

assessment is made.   Sec. 6322.   Section 6323(a) requires the

Secretary to file notice of Federal tax lien if such lien is to

be valid against any purchaser, holder of a security interest,

mechanic’s lienor, or judgment lien creditor.    Lindsay v.

Commissioner, T.C. Memo. 2001-285.

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice of the

filing of a notice of lien under section 6323.    The notice

required by section 6320 must be provided not more than 5

business days after the day of the filing of the notice of lien.

Sec. 6320(a)(2).   Section 6320 further provides that the person

may request administrative review of the matter (in the form of

an Appeals Office hearing) within 30 days beginning on the day

after the 5-day period described above.    Section 6320(c) provides

that the Appeals Office hearing generally shall be conducted
                                - 7 -

consistent with the procedures set forth in sections 6330(c),

(d), and (e).

     Section 6330(c)(2) prescribes the matters a person may raise

at an Appeals Office hearing.   Section 6330(c)(2)(A) provides

that a person may raise collection issues such as spousal

defenses, the appropriateness of the Commissioner’s intended

collection action, and possible alternative means of collection.

Sego v. Commissioner, 114 T.C. 604, 609 (2000).     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 person did not receive a notice of deficiency

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

opportunity to dispute the tax liability.     Id.; Goza v.

Commissioner, 114 T.C. 176 (2000).

     Pursuant to section 6330(d)(1)(A), within 30 days of the

issuance of the notice of determination, the taxpayer may appeal

the determination to the Tax Court.     If the Tax Court does not

have jurisdiction of the underlying tax liability, the taxpayer

may appeal to a U.S. District Court.     Sec. 6330(d)(1)(B).

     Initially, we address respondent’s motion.     In respondent’s

motion, respondent contends that this Court does not have

jurisdiction over the section 6702(a) frivolous return penalty.

Respondent further asks this Court to strike the portion of the

petition with respect to the frivolous return penalty.
                               - 8 -

     The Court’s deficiency jurisdiction is generally limited to

the redetermination of income, estate, and gift taxes.    Moore v.

Commissioner, 114 T.C. 171, 175 (2000).   The Court interpreted

section 6330(d)(1)(A) and (B) as not expanding the Court’s

jurisdiction beyond the types of taxes over which the Court

generally has jurisdiction.   Id.   The Court has held that we do

not have jurisdiction to review the Commissioner’s determination

to assess the frivolous return penalty under section 6702.    Van

Es v. Commissioner, 115 T.C. 324, 328-329 (2000).   In that

situation, section 6330(d)(1) provides that “If a court

determines that the appeal was to an incorrect court, a person

shall have 30 days after the court determination to file such

appeal with the correct court.”

     Accordingly, we shall grant respondent’s motion to dismiss

for lack of jurisdiction and to strike with respect to the

frivolous return penalty.

     In petitioner’s motion, petitioner asks the Court to dismiss

this case for lack of jurisdiction on the ground that the Appeals

officer failed to verify that the requirements of all applicable

law and administrative procedure were met as required by section

6330(c)(1).

     Because we lack jurisdiction to review the determination

with regard to the frivolous return penalty, we shall not decide

whether the hearing requirement under section 6330(b) was met
                               - 9 -

with respect to that determination.    Johnson v. Commissioner, 117

T.C. 204, 208-209 (2001).   Thus, the remaining issue before the

Court is whether this Court has jurisdiction to review the other

determination in this case which relates to petitioner’s

liability for income taxes and accuracy-related penalties.

     The Court recently held that, for purposes of determining

the validity of a notice of determination for jurisdictional

purposes, we shall not look behind a notice of determination to

consider whether the Appeals Office conducted an appropriate

hearing.   Lunsford v. Commissioner, 117 T.C. 159 (2001).    Our

holding in Lunsford overrules Meyer v. Commissioner, 115 T.C. 417

(2001), to the extent it required the Court to look behind a

notice of determination to discern whether a proper hearing

opportunity was given in order to decide whether such a notice

was valid.   Lunsford v. Commissioner, supra at 164.

     In the instant case, this Court is not required to look

behind the relevant notice of determination which relates to

petitioner’s liability for income taxes and accuracy-related

penalties in order to determine the validity of this notice.

There is nothing in that notice of determination which leads us

to conclude that the determination was invalid.   As in Lunsford,

the notice of determination clearly embodies the Appeals

officer’s determination that collection by way of lien may

proceed.   Consistent with our holding in Lunsford, we hold the
                              - 10 -

relevant notice of determination was valid for purposes of

invoking the Court’s jurisdiction and a timely petition was

filed.   Accordingly, we hold that this Court has jurisdiction to

review the determination in this case and that petitioner’s

motion to dismiss must be denied.

     We have considered all of petitioner’s remaining arguments

and find them to be without merit and/or irrelevant.

     To reflect the foregoing,

                                         An appropriate Order

                                    denying petitioner’s motion

                                    and granting respondent’s

                                    motion will be issued.
