                       T.C. Memo. 2009-139



                     UNITED STATES TAX COURT



                 JUDITH WALTHERS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16382-07L.              Filed June 15, 2009.



     Judith Walthers, pro se.

     Kaelyn J. Romey, for respondent.



                       MEMORANDUM OPINION


     DEAN, Special Trial Judge:   This case is before the Court on

petitioner’s motion to restrain assessment or collection

(petitioner’s motion) and respondent’s motion to dismiss for lack

of jurisdiction (respondent’s motion).    All section references

are to the Internal Revenue Code of 1986, as amended, and all
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Rule references are to the Tax Court Rules of Practice and

Procedure.

                            Background

     Petitioner filed her petition with the Court seeking review

of respondent’s collection action for 1998, 2001, and 2002 and

attaching copies of a Notice of Levy on Wages, Salary, and Other

Income for 1997, 1998, 2001, and 2002.   In the petition she

alleges that she never received a final notice of intent to levy,

which would have given her notice of the opportunity to request a

hearing under section 6330 before collection action proceeded.

The Court filed petitioner’s motion concurrently with the

petition.

     Respondent objected to petitioner’s motion and moved to

dismiss the petition for lack of jurisdiction on the ground that

no notice of determination as authorized by section 6320 or 6330

has been issued nor has respondent made any other determination

for the years at issue that would confer jurisdiction on the

Court.   Respondent argues that the Court cannot acquire

jurisdiction to review a proposed lien or levy action unless

there is a determination by the Office of Appeals and the

taxpayer seeks review of the determination within 30 days

thereafter.

     Respondent alleges that his computer transcripts, copies of

which he has produced, show that a Letter 1058, Final Notice,
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Notice of Intent to Levy and Notice of Your Right to a Hearing

(notice), was sent to petitioner by certified mail on June 27,

2006, relating to tax years 1998, 2001, and 2002.    According to

respondent’s records, the notice was “refused/unclaimed”.

Respondent was unable to produce either a copy of the final

notice of intent to levy or a certified mailing list for the

notice.

                              Discussion

Jurisdiction

     The Tax Court is a court of limited jurisdiction and may

exercise that jurisdiction only to the extent authorized by

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

respondent has pointed out, the jurisdiction of the Court under

sections 6320 and 6330 depends upon the issuance of a valid

notice of determination and the filing of a timely petition for

review.     See Orum v. Commissioner, 123 T.C. 1 (2004), affd. 412

F.3d 819 (7th Cir. 2005); Sarrell v. Commissioner, 117 T.C. 122,

125 (2001); Moorhous v. Commissioner, 116 T.C. 263, 269 (2001);

Offiler v. Commissioner, 114 T.C. 492, 498 (2000); see also Rule

330(b).   Therefore, in the absence of a notice of determination,

this Court lacks jurisdiction.

     Respondent did not issue a notice of determination in

respect of petitioner’s outstanding tax liabilities for 1998,

2001, and 2002 because petitioner did not request a hearing under
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section 6330.   The Commissioner, however, must first issue a

final notice of intent to levy and send it to the taxpayer at the

taxpayer’s last known address before a hearing is held and the

notice of determination is issued.       Sec. 6330(a)(2)(C).   The

Court does not have jurisdiction to hear petitioner’s case, and

the only issue to be decided is the proper basis for dismissal.

      Respondent argues that the Court lacks jurisdiction because

petitioner failed to request a hearing under section 6330;

dismissal on this ground would allow respondent to levy upon

petitioner’s property to satisfy her Federal tax liabilities.

Petitioner argues that she never received a valid final notice of

intent to levy; dismissal on that ground would in effect

invalidate the notice of levy.    See Kennedy v. Commissioner, 116

T.C. 255, 261 (2001); Buffano v. Commissioner, T.C. Memo. 2007-

32.

      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) requires the Secretary, at least 30 days before

proceeding with enforced collection by way of a levy on a

person’s property, to provide the person with a final notice of

intent to levy, including notice of the administrative appeals

available.   See sec. 6330; Davis v. Commissioner, 115 T.C. 35, 37
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(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).     The

notice of intent to levy must be given in person, left at the

person’s dwelling or usual place of business, or sent by

certified or registered mail to the person’s last known address.

Secs. 6330(a)(2), 6331(d)(2); secs. 301.6330-1(a)(3), Q&A-8,

301.6331-2(a)(1), Proced. & Admin. Regs.

     The notice is valid if it is mailed to the taxpayer’s last

known address even if it is not received or accepted by the

taxpayer.   See Williams v. Commissioner, 935 F.2d 1066, 1067 (9th

Cir. 1991), affg. T.C. Memo. 1989-439; United States v. Zolla,

724 F.2d 808, 810 (9th Cir. 1984); Stein v. Commissioner, T.C.

Memo. 2004-124.    All that remains is for respondent to show that

he mailed the notice to petitioner’s last known address.

     The Court has held that compliance with U.S. Postal Service

Form 3877 mailing procedures raises a presumption of official

regularity in favor of the Commissioner and is sufficient, absent

evidence to the contrary, to establish that the notice was

properly mailed.    Coleman v. Commissioner, 94 T.C. 82, 90-91

(1990); see also United States v. Zolla, supra at 810.     However,

respondent “was unsuccessful in his attempt to locate” the

U.S.P.S. Form 3877.   Respondent instead offers as evidence of

mailing copies of Forms 4340, Certificate of Assessments,

Payments, and Other Specified Matters, for 1998, 2001, and 2002,
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that indicate the date of the mailing of the notice and that it

was “refused/unclaimed”.

      Respondent, however, must prove by “direct” evidence the

date and fact of mailing the notice to the taxpayer.   Coleman v.

Commissioner, supra at 90; Magazine v. Commissioner, 89 T.C. 321,

326-327 (1987).   The Commissioner’s presentation of a date-

stamped copy of the notice and a file memorandum by an Appeals

officer noting that the notice was returned undeliverable has

been held to be insufficient to prove statutory certified mailing

requirements.   United States v. Wright, 658 F. Supp. 1 (D. Alaska

1986).   With the proper foundation, computer records may be

evidence of correspondence.   Haag v. United States, 485 F.3d 1,

3-4 (1st Cir. 2007); United States v. Hayes, 861 F.2d 1225 (10th

Cir. 1988).   As has been observed by another court, however, the

Form 4340 does not disclose the address to which the letter was

sent or that it was sent by certified mail.   See Tenpenny v.

United States, 490 F. Supp. 2d 852 (N.D. Ohio 2007).   Respondent

has not shown that he mailed the notice to petitioner’s last

known address by certified mail.

Restraint of Collection

     The authority of the Court to restrain collection in a lien

or levy action is found in the last sentence of section

6330(e)(1) “The Tax Court shall have no jurisdiction under this

paragraph to enjoin any action or proceeding unless a timely
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appeal has been filed under subsection (d)(1) and then only in

respect of the unpaid tax or proposed levy to which the

determination being appealed relates.”       Section 6330(e)(1) is

predicated upon the Court’s having plenary jurisdiction in a lien

or levy action before the Court can enjoin any action or

proceeding and then only in respect of the unpaid tax or proposed

levy to which the determination being appealed relates.       Lacking

any notice of determination, the Court is without jurisdiction to

enjoin anything.

     To reflect the foregoing,


                                         An appropriate order of

                                 dismissal for lack of jurisdiction

                                 will be entered and petitioner’s

                                 motion will be denied.
