                        T.C. Memo. 2001-228



                      UNITED STATES TAX COURT



                   FRANK LOPEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10494-00L.                    Filed August 20, 2001.



     Frank Lopez, pro se.

     Wendy S. Harris, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:   This case is before us on respondent’s motion

for partial dismissal due to lack of jurisdiction over

respondent’s proposed levy on petitioner’s property for

petitioner’s unpaid Federal income taxes for 1984 through 1987,

1991 through 1993, and 1996, in the total amount of $122,202, and
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additional penalty and interest in the total amount of $59,182.

Respondent concedes that we have jurisdiction over respondent’s

proposed tax lien filings relating to petitioner’s unpaid Federal

income taxes for 1984 through 1987 and for 1996.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue.

       The controlling issue before us on respondent’s instant

motion for partial dismissal involves whether respondent mailed

the notice of intent to levy to petitioner at petitioner’s last

known address.    This fact issue turns on whether the receipt by

respondent from petitioner -- 32 days before respondent mailed to

petitioner the notice of intent to levy -- of an incomplete tax

return established that petitioner had a new address to which

respondent should have mailed the notice of intent to levy.


                          FINDINGS OF FACT

       On petitioner’s original and amended Federal income tax

returns for 1986 through 1997, as filed with respondent, the

mailing address of petitioner was indicated as 2550 East Desert

Inn Road, Apartment 201, Las Vegas, Nevada 89121 (Desert Inn

address).    The Desert Inn address constitutes the address of

Mailbox, Etc., a retail store that provides post office boxes and

other mail services to paying customers, of whom petitioner was

one.
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     On April 15, 1999, petitioner filed with respondent a

document purporting to be petitioner’s Federal income tax return

for 1998.   This document was not complete and did not reflect

petitioner’s income.   On this document, petitioner’s mailing

address was indicated as 3451 Nightflower Lane, Apartment C, Las

Vegas, Nevada 89121 (Nightflower address).

     As of May 17, 1999, petitioner’s address was still indicated

in respondent’s computer system as the Desert Inn address.

     On May 17, 1999, respondent mailed to petitioner at the

Desert Inn address a Letter 1058, Notice of Intent to Levy and

Notice of * * * [a] Right To a Hearing (Levy Letter) relating to

$122,202 in petitioner’s unpaid Federal income taxes for 1984

through 1987, 1991 through 1993, and 1996, in which respondent

informed petitioner that, in order to contest the proposed levy,

petitioner must request from respondent a Collection Due Process

(CDP) hearing within 30 days of May 17, 1999.

     Respondent did not receive a request from petitioner for a

CDP hearing within 30 days of respondent’s mailing of the Levy

Letter.

     On each of September 2, 1999, and September 10, 1999,

respondent mailed to petitioner at the Nightflower address a

Letter 3172, Notice of Federal Tax Lien Filing and * * * [a]

Right to a Hearing Under IRC 6320 (Lien Letters), with respect to

petitioner’s unpaid Federal income taxes for 1984 through 1987
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and for 1996, in which respondent informed petitioner that, in

order to contest the proposed lien filings, petitioner must

request a CDP hearing within 30 days.

     On September 30, 1999, respondent received from petitioner a

Form 12153, Request for a Collection Due Process Hearing, in

which petitioner requested a CDP hearing with respect to the

above proposed levy and the proposed lien filings.

     Sometime after September 30, 1999, respondent denied

petitioner a CDP hearing with respect to the proposed levy, but

respondent granted petitioner a CDP hearing with respect to the

proposed lien filings.

     Respondent, however, did grant petitioner an equivalent

hearing under section 301.6330-1T(i), Temporary Proced. & Admin.

Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999), with respect to the

proposed levy.

     On August 30, 2000, at the conclusion of the equivalent

hearing, respondent issued to petitioner a decision letter in

which respondent concluded that respondent’s Levy Letter was

properly mailed to petitioner at petitioner’s last known address,

that petitioner’s request for a CDP hearing with regard to the

proposed levy was untimely, and that petitioner was not entitled

to any relief with regard to the proposed levy.

     On September 7, 2000, with respect to the proposed lien

filings, respondent issued to petitioner a notice of
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determination pursuant to section 6330 in which respondent

determined that the lien filings constituted appropriate action

and denied petitioner any relief.

     As stated, respondent did not conduct a CDP hearing with

regard to the levy proposed in the Levy Letter, and respondent

did not issue a notice of determination with regard thereto.

     On October 6, 2000, petitioner filed his petition herein in

which petitioner challenges both the proposed levy and the

proposed lien filings.


                                OPINION

     Prior to collection of taxes by way of a levy on a

taxpayer’s property, section 6330 requires that respondent give

taxpayers notice of, and the opportunity for, administrative

review of the proposed levy in the form of a CDP hearing.

     Section 6330(a) specifically provides that respondent shall

notify a taxpayer of the right to a CDP hearing by mailing a

notice of intent to levy to the taxpayer’s last known address,

and the taxpayer has 30 days from the mailing of that notice to

request a CDP hearing.   If a timely request for a CDP hearing is

made, respondent is required to make a determination of the

issues raised at the hearing.    Sec. 6330(c).

     Under section 6330(d), we have jurisdiction to review

respondent’s determination with respect to issues raised at a CDP

hearing only if a notice of determination pursuant to section
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6330 has been mailed to the taxpayer and only if a timely

petition to the Tax Court has been filed.   Offiler v.

Commissioner, 114 T.C. 492, 498 (2000) (“The notice of

determination provided for in section 6330 is, from a

jurisdictional perspective, the equivalent of a notice of

deficiency.”).

     Generally, the Tax Court does not have jurisdiction to

review decisions made by respondent in equivalent hearings, and a

decision letter thereunder does not constitute a notice of

determination pursuant to section 6330 from which a petition may

be filed in this Court.1   Sec. 301.6330-1T(i), Temporary Proced.

& Admin. Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999); Kennedy v.

Commissioner, 116 T.C. 255, 262-263 (2001); Johnson v.

Commissioner, 86 AFTR 2d 2000-5225, 2000-2 USTC par. 50,591

(D. Or. 2000).

     Unless a taxpayer otherwise clearly and concisely conveys to

respondent a change of address, the address reflected on the

taxpayer’s most recently filed tax return will be treated as the

last known address.   United States v. Zolla, 724 F.2d 808, 810




1
    The temporary regulations provide a limited exception where a
taxpayer seeks review of respondent’s decision in an equivalent
hearing with regard to innocent spouse status under sec. 6015(b)
or (c). Sec. 301.6330-1T(i)(2), Q&A-I5, Temporary Proced. &
Admin. Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999); Mather &
Weisman, 638-2d Tax Mgmt. (BNA), “Defensive Measures,” at A-109
(2000).
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(9th Cir. 1984); Abeles v. Commissioner, 91 T.C. 1019, 1032

(1988).

     Because of the large number of tax returns filed with

respondent on or around April 15 and as a matter of “practical

operational necessity”, respondent is allowed, after receipt, a

reasonable period of time to process and to post to respondent’s

computer systems new addresses of taxpayers.     Williams v.

Commissioner, 935 F.2d 1066, 1068 (9th Cir. 1991), affg. T.C.

Memo. 1989-439.     Whether respondent exceeded a reasonable period

of time to process and to post new addresses involves a question

of fact.   Id.

     Petitioner contends:    (1) That respondent’s May 17, 1999,

Levy Letter was not mailed to his last known address; (2) that he

did not receive the May 17, 1999, Levy Letter mailed to his

Desert Inn address; (3) that respondent’s May 17, 1999, Levy

Letter did not constitute proper notice of his right to a CDP

hearing with regard to the levy notice; and (4) that we therefore

should enjoin respondent’s proposed levy.

     We disagree.    Particularly in light of the fact that

petitioner’s 1998 Federal income tax return constituted an

incomplete return, a 32-day period did not exceed a reasonable

period of time for respondent to post petitioner’s Nightflower

address to respondent’s computer system.    Rev. Proc. 90-18,

1990-1 C.B. 491, 494.    Accordingly, respondent, in this case, was
                                 - 8 -

entitled, for purposes of the address to which the notice of levy

would be mailed, to use petitioner’s Desert Inn address.          With

respect to the levy proposed in the Levy Letter, respondent gave

petitioner under section 6330 adequate notice of and the

opportunity to request a CDP hearing.

     Petitioner failed timely to request a CDP hearing, and

petitioner is not now entitled to challenge in this Court

respondent’s failure to grant petitioner a CDP hearing with

regard to the proposed levy.

     Further, because respondent did not issue to petitioner a

notice of determination with regard to the proposed levy and

because respondent’s decision letter pursuant to the equivalent

hearing does not constitute a notice of determination under

section 6330, we lack jurisdiction to review respondent’s

proposed levy.

     To reflect the foregoing,

                                              An appropriate order of

                                         dismissal for lack of

                                         jurisdiction as to the

                                         proposed levy relating to

                                         petitioner’s property for

                                         unpaid Federal income tax for

                                         1984 through 1987, 1991

                                         through 1993, and 1996, will

                                         be issued.
