                        T.C. Memo. 2008-72



                      UNITED STATES TAX COURT



S & M TRUST NO. 1, MARGARETTE S. MCMAHAN, TRUSTEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent.



     Docket No. 12279-07L.             Filed March 25, 2008.



     Margarette S. McMahan, Trustee, for petitioner.

     Gordon P. Sanz, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GOEKE, Judge:   This case is before the Court on petitioner’s

motion to vacate order of dismissal for lack of jurisdiction.   On

June 15, 2007, respondent filed a motion to dismiss for lack of

jurisdiction on the grounds that no notice of determination under
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section 6320 or section 63301 was sent to petitioner for the tax

years 1993, 1994, and 1995 that would confer jurisdiction on this

Court.   Petitioner filed an opposition to the motion.   On August

10, 2007, the Court entered an order of dismissal and decision

granting respondent’s motion to dismiss for lack of jurisdiction,

finding that because petitioner received no section 6320 hearing

and respondent did not make a determination pursuant to section

6330, the Court lacked jurisdiction to review the Federal tax

liens in this case.    For the reasons stated herein, we will deny

petitioner’s motion.

                          FINDINGS OF FACT

     At the time this petition was filed, petitioner was a trust

with an address in Goliad, Texas.

     On March 14, 2007, respondent filed a notice of Federal tax

lien (NFTL) against assets held in the name of petitioner, as

nominee, transferee, and/or alter ego of James K. (deceased) and

Margarette S. McMahan (the McMahans).   The NFTL listed unpaid

balances of $59,970.80, $24,019.60, and $63,917.83 as income tax

liabilities of the McMahans for tax years ending 1993, 1994, and

1995 respectively.




     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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     Petitioner sought reconsideration from the Internal Revenue

Service’s (IRS) Collection Appeals Program.    On May 8, 2007, the

Collection Appeals Program issued a closing letter which stated

that following a review of petitioner’s case, it was determined

that the area director was correct that the NFTLs should be

filed.    In addition, the letter served as notification that the

matter was closed in the Appeals Office.    On May 30, 2007,

petitioner filed with this Court a petition challenging the lien

determinations with respect to income tax the McMahans owed for

1993, 1994, and 1995.

                               OPINION

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

exercise judgment only to the extent authorized by Congress.

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

     Section 6321 provides that all property and rights to

property of a taxpayer become subject to a lien when demand for

payment of taxes has been made and the taxpayer fails to pay

those taxes.    Section 6320(a) provides that the Secretary shall

furnish the taxpayer with a written notice within 5 business days

after the NFTL is filed.    This written notice informs the

taxpayer of the right to request an administrative hearing on the

matter.    The taxpayer then may seek judicial review of the

determination made after the hearing.    See Davis v. Commissioner,

115 T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179
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(2000).    Upon the Appeals Office’s issuance of a determination

letter, the taxpayer who seeks judicial review may appeal to this

Court within 30 days of the determination.    Section 6320(c)

requires that the administrative hearing be conducted pursuant to

section 6330(c), (d) (other than paragraph (2)(b) thereof), and

(e).    In order to invoke judicial review of a section 6320

determination, a taxpayer must be the person liable for the tax

under section 6321 and must have received from the IRS a valid

notice of determination based on a section 6320 hearing.    See

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

330(b).

       Regulations promulgated under section 6320 state that known

nominees of, or persons holding property of, the taxpayer are not

entitled to a collection due process or equivalent hearing.     Sec.

301.6320-1(b)(2), Q&A-B5, Proced. & Admin. Regs.    Individuals not

entitled to a section 6320 review are entitled to other forms of

review, including reconsideration by the IRS office collecting

the tax, assistance from the National Taxpayer Advocate, or an

administrative hearing before the Appeals Office under the

Collection Appeals Program.    Id.   Any determination resulting

from these reviews, however, is not subject to judicial review.

Id.    The taxpayer for whom a nominee, transferee, or alter ego is

holding property is entitled to a hearing under section 6320.

Sec. 301.6320-1(b)(3), Example (2), Proced. & Admin. Regs.
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Failure to provide a taxpayer with notice of the filing of an

NFTL will serve as a basis for dismissal.   Kennedy v.

Commissioner, T.C. Memo. 2008-33.

     Respondent argues that petitioner is a nominee, transferee,

and/or alter ego of Margarette McMahan and has not received a

determination sufficient to invoke this Court’s jurisdiction.

     Petitioner argues that under State law both petitioner and

Ms. McMahan are one and the same and that if we treat petitioner

and Ms. McMahan as one under State law, then there is no alter

ego or nominee, and Ms. McMahan as the taxpayer liable for the

tax due is entitled to a section 6320 hearing.

     Neither petitioner nor respondent has stated whether a

notice was sent to Ms. McMahan as the individual liable for the

taxes that gave rise to the NFTL.   Although a dismissal for lack

of jurisdiction may be based on failure to provide notice of the

filing of an NFTL, Kennedy v. Commissioner, supra, we decline to

address petitioner’s arguments.   The issue of whether Ms. McMahan

is entitled to a section 6320 hearing is not properly before this

Court, as it is not relevant to the issue of whether we have

jurisdiction to hear petitioner’s appeal of the Collection

Appeals Program’s closing letter.

     We lack jurisdiction to review the filing of the NFTL

because petitioner, as Ms. McMahan’s nominee, transferee, and/or

alter ego, has not received a determination based on a section
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6320 hearing sufficient to invoke judicial 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); Offiler

v. Commissioner, supra.

     Accordingly, we will deny petitioner’s motion to vacate our

order of dismissal for lack of jurisdiction.

     To reflect the foregoing,


                                              An appropriate order will

                                         be issued.
