                        T.C. Memo. 2008-260



                      UNITED STATES TAX COURT



               JOHN LIVINGSTON, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24192-06L.             Filed November 19, 2008.



     John Livingston, Jr., pro se.

     Jeffrey S. Luechtefeld, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:   In this section 6320 lien case, petitioner

seeks reversal of respondent’s determination that petitioner is

liable as a “responsible officer” under section 6672 for trust

fund employment taxes (trust fund taxes) relating to periods

ending December 31, 2001 through 2003 (the relevant periods).
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     The threshold issue for decision is whether-–in this

collection case under sections 6320 and 6330–-we have

jurisdiction to review a supplemental determination of respondent

involving trust fund taxes where we did not have subject matter

jurisdiction over trust fund taxes when respondent made an

original determination with respect to petitioner and the same

trust fund taxes involved herein.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code.


                        FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.    At

the time the petition was filed, petitioner resided in Florida.

     During the relevant periods petitioner was employed at Jet

Welding & Erection, Inc. (Jet Welding), a Florida corporation.

For the relevant periods Jet Welding did not pay approximately

$306,000 in trust fund taxes withheld from employee wages.

     In a June 28, 2004, letter to petitioner respondent proposed

to treat petitioner under section 6672 as a responsible officer

for Jet Welding and to assess against petitioner Jet Welding’s

unpaid trust fund taxes for the relevant periods.   Petitioner

never received respondent’s June 28, 2004, letter, and petitioner

did not appeal respondent’s proposed assessment.
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     On February 14, 2005, respondent assessed against petitioner

the $306,000 unpaid trust fund taxes of Jet Welding and mailed to

petitioner an initial notice and demand for payment.

     In early March 2005 respondent filed a notice of Federal tax

lien (NFTL) relating to the above trust fund taxes assessed

against petitioner, and respondent mailed petitioner a copy of

the NFTL and an explanation of petitioner’s right to a collection

Appeals Office hearing under section 6320.

     On April 7, 2005, petitioner timely filed with respondent a

Form 12153, Request for a Collection Due Process Hearing,

relating to the NFTL.

     On June 27, 2005, respondent and petitioner participated in

a telephone collection hearing relating to the filed NFTL.

During the hearing respondent’s Appeals officer determined that

because petitioner failed to appeal the June 28, 2004, letter

proposing that the trust fund taxes be assessed against

petitioner, petitioner was precluded from raising any issue

concerning his liability therefor during the Appeals Office

collection hearing.

     On July 7, 2005, respondent made a determination under

section 6320 and mailed to petitioner a notice thereof (original

determination) sustaining the filed NFTL.    Petitioner disputed

this original determination by filing a collection action under

section 6320 in the U.S. District Court for the Middle District
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of Florida.   At that time petitioner’s challenge to respondent’s

collection determination could be filed only in a Federal

District Court because we lacked subject matter jurisdiction over

trust fund taxes.   See sec. 6330(d).

     On March 21, 2006, respondent filed a motion in the District

Court to remand petitioner’s case to respondent’s Appeals Office

on the ground that because petitioner had never received

respondent’s June 28, 2004, letter, petitioner had not had an

opportunity to appeal administratively respondent’s assessment

against petitioner of Jet Welding’s delinquent trust fund taxes

and should be given that opportunity with respondent’s Appeals

Office.

     On September 8, 2006, on remand from the District Court,

respondent’s Appeals Office held a second hearing with

petitioner.   On October 26, 2006, respondent sustained his

assessment against petitioner of Jet Welding’s outstanding trust

fund taxes, and respondent issued a supplemental determination

against petitioner to that effect.     Respondent’s supplemental

determination was labeled a “Notice of Determination” and advised

petitioner that “If you want to dispute this determination in

court, you must file a petition with the United States Tax Court

for a redetermination within 30 days from the date of this

letter.”

     On November 24, 2006, petitioner filed the petition herein.
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                              OPINION

     This case presents the situation wherein the effective date

of an amendment to section 6330(d) which gave us subject matter

jurisdiction over trust fund taxes falls after respondent’s

original determination herein but before respondent’s

supplemental determination.

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

exercise our jurisdiction only to the extent authorized by

Congress.   See sec. 7442; Naftel v.Commissioner, 85 T.C. 527, 529

(1985).   Before its amendment in 2006, section 6330(d) provided

that a taxpayer could appeal to this Court an adverse collection

determination by respondent’s Appeals Office only in cases where

we had jurisdiction over the underlying tax liability.   Thus,

lacking underlying subject matter jurisdiction over trust fund

taxes, before the amendment to section 6330(d) became effective,

we did not have jurisdiction in collection cases under sections

6320 and 6330 to review respondent’s determinations to assess and

collect responsible officer trust fund taxes under section 6672.

Ginsberg v. Commissioner, 130 T.C. 88, 91 (2008); Moore v.

Commissioner, 114 T.C. 171, 175 (2000); Rustam v. Commissioner,

T.C. Memo. 2005-42.

     Section 6330 was amended and this Court was given

jurisdiction to review respondent’s collection determinations

without regard to the type of underlying tax liability that was

involved, but this amendment was made effective only for
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determinations made by respondent after October 16, 2006.    See

Pension Protection Act of 2006, Pub. L. 109-280, sec. 855, 120

Stat. 1019; Callahan v. Commissioner, 130 T.C. 44, 48 (2008).

     Because respondent’s original determination was made on

July 7, 2005, before the effective date of the above amendment

giving us jurisdiction over collection determinations relating to

trust fund taxes, respondent’s original determination provides no

basis for us to exercise jurisdiction.

     Because respondent’s October 26, 2006, supplemental

determination was made after the October 16, 2006, effective date

of the above amendment, a question arises as to whether

respondent’s supplemental determination provides a basis for us

to exercise jurisdiction over the trust fund taxes in issue. In

Ginsberg, however, we explicitly addressed this question and

answered it in the negative.   Ginsberg v. Commissioner, supra at

92-93 (a “supplemental determination notice is merely a

supplement to the original determination notice and relates back

to the original determination notice.    It is not a new

determination and does not provide the taxpayer any additional

appeal rights.”   (Fn. refs. omitted.)).

     As noted, respondent’s October 26, 2006, supplemental

determination erroneously informed petitioner that he could file

a petition in this Court, and it was erroneously labeled a

“Notice of Determination”.   However, despite the erroneous label,

we have held that “The right to question the jurisdiction of this
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Court cannot be waived by the actions or inactions of a party.”

Rustam v. Commissioner, supra; see also David Dung Le, M.D., Inc.

v. Commissioner, 114 T.C. 268, 269 (2000), affd. 22 Fed. Appx.

837 (9th Cir. 2001).

     Respondent’s October 26, 2006, supplemental determination

relates back to the date of the July 7, 2005, original

determination.   This Court does not have jurisdiction over this

matter because the original determination was issued on July 7,

2005, before this Court was given subject matter jurisdiction

over respondent’s determinations under sections 6320 and 6330

relating to section 6672 trust fund taxes.



                                       An appropriate order of

                               dismissal for lack of jurisdiction

                               will be entered.
