                         T.C. Memo. 2004-36



                       UNITED STATES TAX COURT



           JASON AND JEANIE HENDERSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8029-02L.             Filed February 12, 2004.


     Jason and Jeanie Henderson, pro sese.

     Caroline R. Krivacka, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    Petitioners filed a petition in response to

respondent’s Notices of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notices of

determination) for 1997 and 1999.1    Respondent filed a motion to



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
                                - 2 -

dismiss the petition for lack of jurisdiction for the tax year

1997, on the ground that the only liability for 1997 is a

frivolous return penalty under section 6702.

Background

     At the time the petition was filed, petitioners resided in

Little Rock, Arkansas.    Jason Henderson (petitioner) filed a Form

1040, U.S. Individual Income Tax Return, for 1997.    Petitioner

checked the box “single” as his filing status.    Petitioner

entered zeros on most of the return.    He reported wages,

salaries, tips, etc., of zero, total income of zero, adjusted

gross income of zero, total income of zero, taxable income of

zero, and total tax of zero.    Petitioner reported Federal income

tax withholdings of $1,7402 and sought a refund of taxes in that

amount.

     Attached to the return, petitioner submitted two Forms W-2,

Wage and Tax Statement, for 1997.    The first, from “Burns Intl

Security Services”, indicates that petitioner earned wages, tips,

etc., of $17,006 and that Federal income tax of $1,726 was

withheld.    The second, from “DFAS”, indicates that petitioner

earned wages, tips, etc., of $135 and that Federal income tax of

$14 was withheld.

     Also attached to the return was a two-page typed form

containing various tax protester arguments.    Petitioner filled in


     2
          All amounts are rounded to the nearest dollar.
                                 - 3 -

his name, $1,740 in withholding, and the year 1997 in the

numerous blank spaces on the form.

     For 1997, respondent concluded that petitioner had taxable

income of $11,041 and owed taxes of $1,654.    Respondent imposed a

section 6702 frivolous return penalty of $500.     Petitioner had

$1,740 of income tax withheld.    Respondent applied an overpayment

credit of $86 (the excess of $1,740 over $1,654) to the section

6702 penalty.

     Thereafter, on August 10, 2000, respondent issued petitioner

a Final Notice--Notice of Intent to Levy and Notice of Your Right

to a Hearing (the notice of intent to levy) for 1997.3    The type

of tax is listed as “CIVPEN”.     There is an assessed balance of

$414 and statutory additions of $64, for a total amount due of

$478.     The notice of intent to levy is addressed solely to “Jason

R Henderson”.

        On February 25, 2002, petitioners attended a hearing with

respondent’s Appeals Office with respect to the notices of intent

to levy for 1997 and 1999.     On April 4, 2002, respondent issued

the notices of determination for 1997 and 1999.4    The 1997 notice

of determination is addressed solely to petitioner “Jason R



     3
          Respondent also issued a notice of intent to levy for
1999.    It is not part of the record in this case.
     4
        The notice of determination for 1999 is addressed to both
“Jason R & Geanie Y Henderson.” It indicates that the “Tax
Type/Form Number” is for Form 1040 taxes.
                                - 4 -

Henderson”.    The salutation on the 1997 notice of determination

states:    “Dear Mr. & Mrs. Henderson”.   Under “Tax Type/Form

Number” the 1997 notice of determination lists “1040” taxes.       The

“Tax Type/Form Number” does not list civil penalties or section

6702.    Nowhere in the text of the notice of determination are

civil penalties or section 6702 mentioned.     The 1997 notice

states that petitioner’s return was processed as a math error

under section 6213(b)(1).    Aside from listing only “Jason R

Henderson” on the mailing address and from using the 1997 date

instead of 1999, the wording of the 1997 notice of determination

is identical to that of the 1999 notice of determination.

     The 1997 notice of determination advised petitioners to

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

redetermination within 30 days” if petitioners disputed the

determination.    The notice of determination further stated:    “If

the court determines that you made your petition to the wrong

court, you will have 30 days after such determination to file

with the correct court.”

     On May 1, 2002, petitioner timely filed a petition with the

Court.    The petition refers to the “determination” dated April 4,

2002.

     On June 28, 2002, respondent filed a Motion to Dismiss for

Lack of Jurisdiction as to The Taxable Year 1997.     Respondent

attached to the motion to dismiss a Form 4340, Certificate of
                               - 5 -

Assessments, Payments, and Other Specified Matters (certificate),

for petitioner’s 1997 civil penalty account.   The certificate,

which names only petitioner, shows that a civil penalty under

section 6702 was assessed on November 9, 1998, but no additional

tax was assessed.   It also shows that an overpayment credit of

$86 was applied from petitioner’s 1997 income tax to his civil

penalty account, leaving a balance due of $414.

     On July 19, 2002, petitioner and Jeanie Y. Henderson jointly

filed a response opposing the motion and seeking a refund of

their withholding tax for 1997.

     On July 24, 2002, petitioner filed an Amendment to Petition

stating he intended to include his wife, Jeanie Henderson, as a

party to the action.   On July 24, 2002, the Court granted

petitioner leave to file the Amendment to Petition.

     On August 5, 2002, respondent filed a reply to petitioner’s

response to the motion to dismiss, maintaining the Court does not

have jurisdiction over the section 6702(a) frivolous return

penalty.

     Pursuant to the Court’s order dated August 15, 2002,

respondent filed a supplemental reply stating in part “that the

notice was not required to be sent to petitioner-wife Jeanie

Henderson since the liability was solely that of the petitioner-

husband, Jason Henderson.”

     On January 27, 2003, the Court heard oral argument on the

motion.
                               - 6 -

Discussion

     Jurisdiction pursuant to section 6330(d)(1)(A) “is

established when there is a written notice that embodies a

determination to proceed with the collection of the taxes in

issue, and a timely filed petition.”     Lunsford v. Commissioner,

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

     1.   No Jurisdiction Over Underlying Tax Liability

     After reviewing the petition and the record, we conclude

that the only unpaid tax liability related to petitioner’s 1997

tax return at the time of the issuance of the notice of intent to

levy for that year was the section 6702 frivolous return penalty.

Pursuant to section 6330(d)(1), respondent moves to dismiss the

petition as to the tax year 1997 on the basis that we lack

jurisdiction to review respondent’s assessment of the uncollected

section 6702 frivolous return penalty.    Section 6330(d)(1)

provides the following:

     SEC. 6330(d).   Proceeding After Hearing.--

          (1) Judicial review of determination.–-The person
     may, within 30 days of a determination under this
     section, appeal such determination–-

               (A) to the Tax Court (and the Tax Court
          shall have jurisdiction with respect to such
          matter); or

               (B) if the Tax Court does not have
          jurisdiction of the underlying tax liability,
          to a district court of the United States.

     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.
                                - 7 -

     The Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress.    Naftel v. Commissioner, 85 T.C. 527, 529 (1985).     The

Court’s jurisdiction to review the Commissioner’s determinations

respecting collection matters is limited to cases where the

underlying tax liability is of a type over which the Court

normally has jurisdiction.    See Moore v. Commissioner, 114 T.C.

171 (2000).    We lack jurisdiction under section 6330(d)(1)(A) to

review respondent’s determination to collect the frivolous return

penalty under section 6702 for 1997.    Johnson v. Commissioner,

117 T.C. 204, 208 (2001) (dismissing petition for lack of

jurisdiction where the Commissioner assessed only a frivolous

return penalty under section 6702); Van Es v. Commissioner, 115

T.C. 324, 329 (2000) (“we do not * * * have jurisdiction to

redetermine the frivolous return penalties assessed pursuant to

section 6702”).

     Pursuant to section 6330(d), petitioner has 30 days after

the entry of our order to file his appeal with the appropriate

U.S. District Court for 1997.

     2.     No Decision on Whether Jeanie Henderson Is a Proper
            Party to This Action

     Respondent alleges that the notice for 1997 “was not

required to be sent to petitioner-wife Jeanie Henderson since the

liability was solely that of the petitioner-husband, Jason

Henderson.”    Petitioners filed an affidavit of record stating

that Jeanie Henderson was an intended party to the action.
                                 - 8 -

     We will not decide whether Jeanie Henderson should be joined

as an appropriate party for 1997 when we lack subject matter

jurisdiction over the underlying tax liability.       See Johnson v.

Commissioner, supra at 209 (declining to decide whether the

hearing requirement under section 6330(b) had been met when the

Court lacked subject matter jurisdiction (citing Yuen v.

Commissioner, 112 T.C. 123, 130 (1999) (declining to decide

whether a final notice of determination under section 6404 was

issued when the Court lacked subject matter jurisdiction))).

     To reflect the foregoing,

                                         An appropriate order will be

                                 entered.




[REPORTER’S NOTE: THIS OPINION WAS AMENDED BY ORDER DATED AUGUST

10, 2004.]
