                        T.C. Memo. 2007-111



                      UNITED STATES TAX COURT



                DORIS LEE NEWSOME, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21831-05L.           Filed April 30, 2007.



     Doris Lee Newsome, pro se.

     Michelle L. Maniscalco, for respondent.



                        MEMORANDUM OPINION

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

motions to dismiss for lack of jurisdiction under Rule 53 and for

summary judgment under Rule 121.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code, as amended, and all Rule references

are to the Tax Court Rules of Practice and Procedure.
                                - 2 -
     Respondent’s motion to dismiss is based on the contention

that petitioner’s request for a section 6320 Appeals Office

hearing was untimely.

     Respondent’s motion for summary judgment is based on the

contention that petitioner has not raised in her petition any

appropriate issue.


                             Background

     At the time the petition was filed, petitioner resided in

Staten Island, New York.

     On December 14, 1995, a nontax judgment of foreclosure was

entered relating to petitioner’s home, and in March of 1996 a

foreclosure sale of petitioner’s home occurred.   On June 10,

1998, petitioner was evicted from a subsequent home and later

moved to her current address.   At the time, petitioner did not

inform respondent of her current address.

     For 1996, petitioner did not timely file an individual

Federal income tax return.

     With wage and discharge of indebtedness income (relating to

the above foreclosure sale) reported to respondent by third

parties, respondent prepared for petitioner a substitute 1996

individual Federal income tax return reflecting a total tax

liability of $24,629.

     Based on the substitute return prepared by respondent, on

December 22, 1998, respondent mailed to petitioner (at the home
                              - 3 -
address from which petitioner had been evicted in June of 1998) a

notice of deficiency relating to petitioner’s 1996 Federal income

tax liability reflecting the $24,629 tax deficiency.    Petitioner

states that she did not receive this notice of deficiency until

years later.

     On May 31, 1999, respondent assessed against petitioner the

above $24,629 1996 tax deficiency.

     On November 16, 1999, respondent mailed to petitioner (again

at the home address from which petitioner had been evicted in

June of 1998) a section 6330 levy notice relating to the 1996 tax

deficiency that respondent had assessed.    On November 29, 1999,

respondent’s levy notice was returned as undeliverable.

     On June 17, 2002, respondent mailed to petitioner at

petitioner’s current address, and petitioner received, a second

section 6330 levy notice relating to petitioner’s 1996 assessed

and unpaid $24,629 tax deficiency.    In response thereto,

petitioner contacted respondent and requested a copy of

respondent’s notice of deficiency to petitioner for 1996.

     At some point in June or July of 2002, respondent remailed

to petitioner, and petitioner received, a copy of respondent’s

above notice of deficiency to petitioner for 1996.

     On June 30, 2002, in response to respondent’s June 17, 2002,

second levy notice relating to petitioner’s 1996 unpaid above tax
                                 - 4 -
deficiency, petitioner requested a section 6330 hearing with

respondent’s Appeals Office.

     Respondent’s Appeals Office denied petitioner’s request as

untimely, but petitioner and respondent’s Appeals Office

nevertheless conducted what respondent treated as an equivalent

hearing wherein petitioner and respondent’s Appeals officer

discussed the issue as to the taxability of discharge of

indebtedness income relating to the 1996 foreclosure sale of

petitioner’s home and petitioner’s 1996 Federal income tax

liability.   At this hearing, respondent’s Appeals Office invited

petitioner to file her own 1996 individual Federal income tax

return.

     On December 23, 2003, respondent mailed to petitioner’s

current address an adverse decision letter relating to the above

hearing.   In the letter, the Appeals Office sustained

respondent’s proposed levy and explained that petitioner had been

given an opportunity during the equivalent hearing, and had been

requested, to submit to respondent’s Audit Reconsideration

Program an individual Federal income tax return for 1996 (as well

as other overdue individual Federal income tax returns that

petitioner had not yet filed).

     Petitioner did not file an action in this Court or in a

District Court with regard to respondent’s December 23, 2003,

adverse decision letter, in which petitioner might have argued
                              - 5 -
that the decision letter should be treated as a notice of

determination with respect to which judicial review of the

underlying tax deficiency might have been available.1

     On November 4, 2004, respondent filed a notice of Federal

tax lien (NFTL) relating to the $24,629 tax deficiency against

petitioner for 1996 that respondent had assessed.   On November 5,

2004, respondent mailed to petitioner at petitioner’s current

address a section 6320 lien notice relating to the above NFTL, in

which respondent indicated a December 13, 2004, deadline for

receipt from petitioner of a section 6320 Appeals Office hearing

request.

     In response to respondent’s November 5, 2004, lien notice,

on December 8, 2004, petitioner mailed to respondent by overnight

mail a request for an Appeals Office hearing.   On December 9,

2004, respondent received petitioner’s above request.

     From January to October 2005, in connection with

respondent’s November 4, 2004, NFTL, respondent held an Appeals

     1
      Arguably, if respondent’s Nov. 16, 1999, levy notice was
not mailed to petitioner’s last known address, petitioner’s July
8, 2002, request for an Appeals Office hearing should have been
treated as timely, and a regular sec. 6330 Appeals Office hearing
should have been held, not an equivalent hearing. See sec.
301.6330-1(i), Proced. & Admin. Regs. (explaining when an
equivalent hearing is to be held).

     In Craig v. Commissioner, 119 T.C. 252 (2002), we treated a
decision letter from an equivalent hearing, which should have
been treated as a regular sec. 6330 hearing, as a notice of
determination for purposes of allowing our review of respondent’s
Appeals Office determination.
                              - 6 -
Office hearing with petitioner in which petitioner raised only

the issue as to the includability in her income of alleged

discharge of indebtedness income.

     On September 13, 2005, petitioner untimely filed with

respondent her 1996 individual Federal income tax return showing

a refund due to petitioner.

     On October 21, 2005, respondent mailed to petitioner a

notice of determination sustaining respondent’s NFTL.    In the

notice of determination, however, respondent’s Appeals Office

explained that respondent’s Audit Reconsideration Program is

willing to examine petitioner’s untimely filed 1996 individual

Federal income tax return and to make appropriate adjustments, if

any, to petitioner’s tax liability as previously determined by

respondent.

     On November 18, 2005, petitioner timely filed the instant

action challenging only respondent’s notice of determination

sustaining respondent’s NFTL relating to the $24,629 1996 tax

deficiency respondent had assessed against petitioner.    In her

petition, petitioner raises only the issue as to the

includability in her income for 1996 of discharge of indebtedness

income relating to the foreclosure sale of her home.
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                            Discussion

Motion To Dismiss for Lack of Jurisdiction

     Because we may proceed only if we have jurisdiction, Raymond

v. Commissioner, 119 T.C. 191, 193 (2002), we first address

respondent’s motion to dismiss for lack of jurisdiction.

Respondent’s motion to dismiss is based on alleged untimeliness

of petitioner’s request for an Appeals Office hearing relating to

respondent’s November 4, 2004, NFTL.

     Generally, our jurisdiction to review respondent’s

collection activity under section 6320 is predicated upon

respondent’s issuance of a notice of determination, a taxpayer’s

timely filed petition, and our jurisdiction over the underlying

type of tax involved.   Andre v. Commissioner, 127 T.C. 68, 70

(2006); Inv. Research Associates v. Commissioner, 126 T.C. 183,

187, 191 (2006); Lunsford v. Commissioner, 117 T.C. 159, 161

(2001); Offiler v. Commissioner, 114 T.C. 492, 497-498 (2000);

sec. 301.6320-1(f)(1), Proced. & Admin. Regs.2

     Respondent argues that petitioner on December 8, 2004, more

than 30 days after respondent’s November 5 lien notice to

petitioner, untimely requested the section 6320 Appeals Office

hearing and that, due to petitioner’s untimely hearing request,



     2
      After Oct. 16, 2006, determinations made under secs. 6320
and 6330 are appealable only to the Tax Court regardless of the
underlying type of tax involved. Pension Protection Act of 2006,
Pub. L. 109-280, sec. 855, 120 Stat. 1019.
                                - 8 -
the hearing that was held with petitioner relating to

respondent’s NFTL should be treated as an equivalent hearing and

that the Court should now treat respondent’s October 21, 2005,

notice of determination only as a nonreviewable decision letter

from an equivalent hearing.

     Respondent’s argument confuses the period in which a

taxpayer may timely request an Appeals Office hearing under

section 6320 with the period in which a taxpayer may timely

request an Appeals Office hearing under section 6330.   Both

periods are 30 days long.   However, the start dates for the two

30-day periods are different.

     Under section 6320 relating to an NFTL, the 30-day period in

which a taxpayer may timely request an Appeals Office hearing

begins on the day after the 5th business day after the date on

which the NFTL was filed.   Sec. 6320(a)(2) and (3)(B); sec.

301.6320-1(c)(1) and (2), Q&A-C3, Proced. & Admin. Regs.

     Under section 6330 relating to a proposed levy on a

taxpayer’s property, the 30-day period in which a taxpayer may

timely request an Appeals Office hearing begins on the day after

the date of mailing by respondent of the proposed levy notice.

Sec. 6330(a)(3)(B); Andre v. Commissioner, 127 T.C. at 71.

     Section 301.6320-1(c)(2), Q&A-C3, Proced. & Admin. Regs.,

explains the distinction in these 30-day periods as follows:
                               - 9 -
          Q-C3. When must a taxpayer request * * * [an
     Appeals Office] hearing with respect to a * * * [lien
     notice] issued under section 6320?

          A-C3. A taxpayer must submit a written request
     for * * * [an Appeals Office hearing under section
     6320] within the 30-day period that commences the day
     after the end of the five business day period following
     the filing of the NFTL. Any request filed during the
     five business day period * * * will be deemed to be
     filed on the first day of the 30-day period. The
     period for submitting a written request for * * * [an
     Appeals Office] hearing with respect to a * * *
     [notice] issued under section 6320 is slightly
     different from the period for submitting a written
     request for * * * [an Appeals Office] hearing * * *
     under section 6330. For a * * * [notice] issued under
     section 6330, the taxpayer must submit a written
     request for [an Appeals Office] hearing within the 30-
     day period commencing the day after the date of the
     [levy notice]. [Emphasis added.]


     Because respondent filed its NFTL on November 4, 2004, and

because the 5th business day after November 4, 2004, was

November 12, 2004 (not taking into account Saturday, November 6,

Sunday, November 7, and Veteran’s Day November 11, 2004), the 30-

day period for petitioner to request an Appeals Office hearing

under section 6320 began the day after November 12, 2004, and

ended on Monday, December 13, 2004 (not taking into account

Sunday, December 12, 2004).   Accordingly, petitioner’s

December 8, 2004, request for an Appeals Office hearing in

connection with respondent’s November 4, 2004, NFTL was timely by

5 days.

     Based on the above, we need not address the question as to

whether respondent’s Appeals Office’s adverse October 21, 2005,
                              - 10 -
notice of determination relating to petitioner’s appeal of

respondent’s NFTL would authorize our jurisdiction to review

respondent’s adverse determination even if petitioner’s request

for an Appeals Office hearing were untimely.3

     We deny respondent’s motion to dismiss petitioner’s petition

relating to respondent’s November 4, 2004, NFTL.


Motion for Summary Judgment

     When no material fact remains at issue, we may grant summary

judgment for the party entitled to judgment as a matter of law.

Rule 121(b); Fla. Country Clubs, Inc. v. Commissioner, 122 T.C.

73, 75-76 (2004), affd. on other grounds 404 F.3d 1291 (11th Cir.

2005).

     In deciding whether respondent is entitled to judgment as a

matter of law, we view factual inferences in the light most

favorable to petitioner.   Speltz v. Commissioner, 124 T.C. 165

(2005), affd. on other grounds 454 F.3d 782 (8th Cir. 2006).

     Generally, a taxpayer who received a valid notice of

deficiency for the year in issue or who otherwise had a prior

opportunity to dispute the underlying tax liability may not, in a

subsequent section 6320 Appeals Office hearing and in subsequent



     3
      In Kim v. Commissioner, T.C. Memo. 2005-96, respondent’s
improper issuance of a notice of determination, instead of a
decision letter that should have been issued in connection with
an untimely request for a sec. 6330 hearing, served as the basis
for our jurisdiction.
                              - 11 -
related litigation in this Court, challenge the underlying tax

liability.   Secs. 6320(c), 6330(c)(2)(B); Lewis v. Commissioner,

128 T.C. __, __ (2007) (slip op. at 24); Sego v. Commissioner,

114 T.C. 604, 610-611 (2000); Goza v. Commissioner, 114 T.C. 176,

182-183 (2000); sec. 301.6320-1(e)(1), Proced. & Admin. Regs.

     Thus, where a taxpayer has received a prior lien or levy

notice under section 6320 or section 6330 which could have been

appealed to respondent’s Appeals Office, relating to the same

year and the same underlying tax liability as is involved in a

subsequent lien or levy notice, the taxpayer is treated with

regard to the subsequent lien or levy notice as already having

had a prior opportunity to dispute the underlying tax liability.

Sec. 301.6320-1(e)(3), Q&A-E2, Q&A-E7, Proced. & Admin. Regs.

     Section 301.6320-1(e)(3), Q&A-E2, Proced. & Admin. Regs.,

explains as follows:


     An opportunity to dispute a liability includes a prior
     opportunity for a conference with Appeals that was
     offered either before or after the assessment of the
     liability.


     After requesting and receiving a copy of respondent’s notice

of deficiency, at petitioner’s equivalent hearing with

respondent’s Appeals Office relating to respondent’s June 17,

2002, second levy notice, petitioner discussed and disputed with

respondent’s Appeals Office her alleged discharge of indebtedness
                              - 12 -
income and her underlying 1996 individual Federal income tax

liability.

     Petitioner argues that she did not receive respondent’s

notice of deficiency in December of 1998 and therefore that she

now should be able to contest her 1996 underlying Federal income

tax liability.   Even if respondent improperly mailed the notice

of deficiency, and even if petitioner did not receive the notice

of deficiency when it originally was mailed to her, when

petitioner participated in the Appeals Office equivalent hearing

relating to respondent’s June 17, 2002, second levy notice,

petitioner did have an opportunity to, and in fact did, discuss

and dispute with respondent’s Appeals Office her underlying tax

liability.   Accordingly, petitioner may not now, in connection

with respondent’s November 4, 2004, NFTL, contest that underlying

tax liability.

     Because petitioner raises no other arguments relating to the

NFTL, we shall grant summary judgment in favor of respondent

relating to respondent’s November 4, 2004, NFTL and respondent’s

October 21, 2005, notice of determination.

     For the reasons stated, we shall deny respondent’s motion to

dismiss, and we shall grant respondent’s motion for summary

judgment.

                                    An appropriate order will

                               be entered.
