                         T.C. Memo. 2006-255



                       UNITED STATES TAX COURT



                 KATHERINE COWAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3539-06L.                Filed November 27, 2006.


     Katherine Cowan, pro se.



                         MEMORANDUM OPINION


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

Motion for Leave to File Motion to Vacate Order of Dismissal for

Lack of Jurisdiction (hereinafter referred to as petitioner’s

motion for leave).   We must decide whether to grant petitioner’s

motion for leave.    When the petition was filed, petitioner

resided in Kilauea, Hawaii.
                                 - 2 -

                              Background

        On January 5, 2006, respondent issued to petitioner a

Decision Letter Concerning Equivalent Hearing Under Section 6320

and/or 6330 of the Internal Revenue Code (decision letter)

regarding proposed collection action for petitioner’s tax years

1995, 1996, and 1997.1    In the decision letter, respondent’s

Office of Appeals informed petitioner that her due process

hearing request was not filed within the time prescribed under

section 6320 and/or 6330.     Respondent’s Office of Appeals further

informed petitioner that she received a hearing equivalent to a

due process hearing except that there was no right to dispute a

decision by the Appeals Office in court under sections 6320

and/or 6330.     In the decision letter, the Appeals Office

sustained the proposed collection action.     On January 31, 2006,

petitioner sent to the Court a document, which states in relevant

part:

     Dear Tax Court Judge,

     The Collection Due Process (hereafter “CDP”) Hearing
     that I requested has been decided. I need your
     assistance regarding a Notice of Determination I
     received from the Internal Revenue Service for the tax
     year [sic] 1995, 1996 and 1997. The Internal Revenue
     Service (hereafter “IRS”) DID NOT grant me a CDP
     Hearing, which I have requested. The Hearing they
     attempt [sic] to conduct was unfair and biased. I was


        1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 3 -

     not provided information that I requested from the
     hearing agent.

     I think the IRS is wrong but I am not sure if I am
     doing this protest right. I told the IRS I didn’t owe
     them anything and they still have not shown me any
     proof to support their claim. Could you please write
     to me and let me know the procedure?

     I need the help of the Tax Court to clarify this
     matter. I am unclear as to what rules of procedure and
     evidence were to preside over my CDP Hearing. Although
     I asked many times I never received any information on
     such procedures. The agent was no help at all.

     Now a whole new procedure is beginning and I am more
     confused. I am unsure of what to do from here. Will
     you please advise what my next steps are and if there
     is public council [sic] available for my assistance?
     When am I supposed to go to court over this? Would I
     receive the assistance of a public defender?

     Thank you for reading my letter and trying to help me.

     This document failed to comply with the Rules of the Court

as to the form and content of a proper petition.   Petitioner also

failed to submit the required filing fee.   Nevertheless, on

February 7, 2006, the Court filed petitioner’s document as an

imperfect petition.   By order dated February 22, 2006, the Court

directed petitioner to file a proper amended petition and to pay

the filing fee on or before April 10, 2006.   The order stated

that if an amended petition and the filing fee were not received

on or before April 10, 2006, the case would be dismissed.

Petitioner failed to timely respond to the Court’s order to file

an amended petition or to pay the filing fee.   On May 26, 2006,
                                - 4 -

the Court entered an Order of Dismissal for Lack of Jurisdiction

(order of dismissal).

     On August 21, 2006, 87 days after the order of dismissal was

entered, petitioner mailed to the Court two documents entitled

“Request Permission to File Motion to Vacate Order of Dismissal

for Lack of Jurisdiction” (motion for leave) and “Motion to

Vacate Order of Dismissal for Lack of Jurisdiction” (motion to

vacate).2   The documents state in relevant part:

     REQUEST PERMISSION TO FILE MOTION TO VACATE ORDER OF
               DISMISSAL FOR LACK OF JURISDICTION

     PETITIONER respectfully requests permission from the
     Court to file this motion to vacate “ORDER OF DISMISSAL
     FOR LACK OF JURISDICTION” for the tax year/s 1995, 1996
     and 1997, with Docket No. 3539-06L. PETITIONER also
     requests leave from the court to accept PETITIONER’s
     amended petition. PETITIONER desires to dispute the
     RESPONDENT’s determination made with respect to
     PETITIONER’s income taxes for the tax year. PETITIONER
     will file Motion to Vacate Order of Dismissal for Lack
     of Jurisdiction concurrently with this Motion.

            MOTION TO VACATE ORDER OF DISMISSAL FOR LACK
                           OF JURISDICTION

     PETITIONER respectfully requests that the Court vacate
     its Order of Dismissal for Lack of Jurisdiction with
     the Docket No. 3539-06L, for the Tax Years 1995, 1996
     and 1997. PETITIONER also request [sic] for the Court
     to determine the case lay [sic] out by the PETITIONER’s
     Amended Petition, which will be filed concurrently with
     this motion. PETITIONER will also file an Amended
     Petition and the Designation of Place of Trial
     concurrently with this motion.




     2
       The envelope containing these documents was postmarked
Aug. 21, 2006.
                              - 5 -

     On August 28, 2006, 94 days after the order of dismissal was

entered, the Court filed the first mentioned document as a

“Motion for Leave to File Motion to Vacate Order of Dismissal for

Lack of Jurisdiction” (motion for leave).   The Court received

petitioner’s amended petition with attached copy of the decision

letter concurrently with the motion for leave and the motion to

vacate.

Paragraph 2 of the amended petition states:

          2.   Petitioner(s) disagree(s) with the
     determination contained in the notice issued by the
     Internal Revenue Service for the year(s) or period(s)
     1995, 1996 & 1997, as set forth in such notice,
     DECISION LETTER CONCERNING EQUIVALENT HEARING UNDER
     SECTION 6320 AND/OR 6330, dated 01/05/06 A COPY OF
     WHICH ATTACHED [sic]. DO NOT ATTACH ANY OTHER DOCUMENTS
     TO THIS PETITION.

The attached decision letter states in relevant part:

     Dear Ms. McClelland Cowan:

     We have reviewed the proposed collection action for the
     period(s) shown above. This letter is our decision on
     your case. A summary of our decision is stated below
     and the enclosed statement shows, in detail, the
     matters we considered at your Appeals hearing and our
     conclusions.

     Your due process hearing request was not filed within
     the time prescribed under Section 6320 and/or 6330.
     However, you received a hearing equivalent to a due
     process hearing except that there is no right to
     dispute a decision by the Appeals Office in court under
     IRC Sections 6320 and/or 6330.

     Your case will be returned to the originating IRS
     office for action consistent with the decision
     summarized below and described on the attached page(s).

             *     *     *     *      *     *     *
                               - 6 -

     Summary of Decision
     The collection action is sustained.


                            Discussion

     This Court can proceed in a case only if it has

jurisdiction, and either party, or the Court sua sponte, can

question jurisdiction at any time.     Stewart v. Commissioner, 127

T.C. ___, ___ (2006) (slip op. at 6); Estate of Young v.

Commissioner, 81 T.C. 879, 880-881 (1983).

     On May 26, 2006, we dismissed petitioner’s case for lack of

jurisdiction.   An order of dismissal for lack of jurisdiction is

treated as the Court’s decision.     Stewart v. Commissioner, supra

at ___ (slip op. at 5); Hazim v. Commissioner, 82 T.C. 471, 476

(1984).   Section 7459(c) provides, in relevant part:

          SEC. 7459(c). Date of Decision.–- * * * if the
     Tax Court dismisses a proceeding for lack of
     jurisdiction, an order to that effect shall be entered
     in the records of the Tax Court, and the decision of
     the Tax Court shall be held to be rendered upon the
     date of such entry.

The word “decision” refers to decisions determining a deficiency

and orders of dismissal for lack of jurisdiction.    Ryan v.

Commissioner, 517 F.2d 13, 16 (7th Cir. 1975); Commissioner v. S.

Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955); Stewart v.

Commissioner, supra at ___ (slip op. at 5).

     Except for very limited exceptions, none of which applies

here, this Court lacks jurisdiction once an order of dismissal

for lack of jurisdiction becomes final within the meaning of
                                - 7 -

section 7481.    Stewart v. Commissioner, supra at ___ (slip op. at

6-7 & n.3).    A decision of the Tax Court becomes final “Upon the

expiration of the time allowed for filing a notice of appeal, if

no such notice has been duly filed within such time”.   Sec.

7481(a)(1).    Section 7483 provides that a notice of appeal may be

filed within 90 days after a decision is entered.3

     Pursuant to rule 13(a) of the Federal Rules of Appellate

Procedure, if under the Tax Court’s Rules a party makes a timely

motion to vacate or revise a decision, “the time to file a notice

of appeal runs from the entry of the order disposing of the

motion or from the entry of a new decision, whichever is later.”4

Our Rule 162 provides that “Any motion to vacate or revise a


     3
       As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
     4
         Fed. R. App. P. 13(a) provides:

     Rule 13. Review of a Decision of the Tax Court.

     (a) How Obtained; Time for Filing Notice of Appeal.
     (1) Review of a decision of the United States Tax Court
     is commenced by filing a notice of appeal with the Tax
     Court clerk within 90 days after the entry of the Tax
     Court’s decision. At the time of filing, the appellant
     must furnish the clerk with enough copies of the notice
     to enable the clerk to comply with Rule 3(d). If one
     party files a timely notice of appeal, any other party
     may file a notice of appeal within 120 days after the
     Tax Court’s decision is entered. (2) If, under Tax
     Court rules, a party makes a timely motion to vacate or
     revise the Tax Court’s decision, the time to file a
     notice of appeal runs from the entry of the order
     disposing of the motion or from the entry of a new
     decision, whichever is later.
                               - 8 -

decision, with or without a new or further trial, shall be filed

within 30 days after the decision has been entered, unless the

Court shall otherwise permit.”   (Emphasis added.)   Petitioner did

not file a motion to vacate or revise within 30 days after the

Court’s order of dismissal was entered.   Therefore, in order for

her motion to vacate to be considered timely filed, Rule 162

required petitioner to file a motion for leave to file a motion

to vacate or revise, the granting of which lies within the sound

discretion of the Court.   See Rule 162; Heim v. Commissioner, 872

F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Stewart

v. Commissioner, supra at ___ (slip op. at 5-6); Brookes v.

Commissioner, 108 T.C. 1, 7 (1997).

     The envelope containing petitioner’s motion for leave was

postmarked and mailed prior to the expiration of the 90-day

appeal period.   The timely-mailing/timely-filing provisions of

section 7502 apply to a motion for leave to file a motion to

vacate a decision that is mailed and postmarked prior to, but

received by the Court after, the expiration of the 90-day appeal

period.   Stewart v. Commissioner, supra at ___ (slip op. at 13).

Therefore, we have jurisdiction to consider petitioner’s motion

for leave.   However, whether the Court retains jurisdiction over

petitioner’s case depends on whether the Court grants leave to

file petitioner’s motion to vacate.    Id. at ___ (slip op. at 14).

If the Court grants the motion for leave, then the time for
                                - 9 -

appeal is extended.    Manchester Group v. Commissioner, 113 F.3d

1087, 1088 (9th Cir. 1997), revg. T.C. Memo. 1994-604; Nordvik v.

Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.

Memo. 1992-731; Stewart v. Commissioner, supra at ___ (slip op.

at 14).    However, if the motion for leave is not granted, the

motion to vacate cannot be filed.    If the motion to vacate is not

filed, the appeal period is not extended, and the order of

dismissal for lack of jurisdiction is final.    The filing of a

taxpayer’s motion for leave to file a motion to vacate does not

extend the time for appeal unless the Court grants the motion for

leave and permits the filing of the motion to vacate.    Nordvik v.

Commissioner, supra at 1492; Stewart v. Commissioner, supra at

___ (slip op. at 15-16); Haley v. Commissioner, 805 F. Supp. 834,

836 (E.D. Cal. 1992), affd. without published opinion 5 F.3d 536

(9th Cir. 1993).5

     Whether to grant petitioner’s motion for leave is

discretionary.    Stewart v. Commissioner, supra at ___ (slip op.

at 5-6).    However, a timely motion for leave, without more, is

not necessarily sufficient to persuade the Court to grant such

motion.    In deciding what action to take, “We are guided



     5
       In Nordvik v. Commissioner, 67 F.3d 1489, 1492 n.2 (9th
Cir. 1995), affg. T.C. Memo. 1992-731, the Court of Appeals for
the Ninth Circuit expressly adopted the reasoning of the District
Court in Haley v. Commissioner, 805 F. Supp. 834 (E.D. Cal.
1992), affd. without published opinion 5 F.3d 536 (9th Cir.
1993).
                               - 10 -

primarily by whether it would be in the interest of justice to

vacate the prior decision.    But, we also recognize that

litigation must end at sometime.”    Estate of Egger v.

Commissioner, 92 T.C. 1079, 1083 (1989); Manchester Group v.

Commissioner, T.C. Memo. 1997-576.

     This Court’s jurisdiction to review certain collection

activity by the Internal Revenue Service depends, in part, upon

the issuance of a valid notice of determination by an Internal

Revenue Service Appeals Officer under section 6320 or 6330.

Secs. 6320(c), 6330(d)(1); Rule 330(b); Offiler v. Commissioner,

114 T.C. 492, 498 (2000).    Where the Appeals Office issues a

determination letter, section 6330(d)(1) provides a taxpayer 30

days in which to file a petition for review with the Tax Court.

We have held that the Court’s jurisdiction depends on the

issuance of a valid determination letter and the filing of a

timely petition for review.    Kennedy v. Commissioner, 116 T.C.

255, 261 (2001).

     Petitioner attached to her amended petition the decision

letter concerning an equivalent hearing she received from

respondent’s Appeals Office.    In her amended petition, petitioner

avers that she disagrees with the “determination” relating to the

years 1995, 1996 and 1997 contained in the “Decision Letter

Concerning Equivalent Hearing Under Section 6320 and/or 6330".

The decision letter specifies that it was issued after petitioner
                              - 11 -

received an “equivalent hearing”.   A decision letter, issued

pursuant to an equivalent hearing, is not a notice of

determination sufficient to invoke the Court’s jurisdiction under

section 6320 or 6330.   Kennedy v. Commissioner, supra at 263.

Respondent’s Appeals Office made it clear in the decision letter

that the decision made in an equivalent hearing, as opposed to a

determination resulting from a collection due process hearing, is

not disputable in court.   The decision letter states that

petitioner received an equivalent hearing instead of a collection

due process hearing because petitioner failed to timely request a

collection due process hearing.   As we stated in Kennedy v.

Commissioner, supra at 263:

          Petitioner’s position ignores the unambiguous
     statement in the decision letter that the equivalent
     hearing was not intended to serve as an Appeals Office
     hearing within the meaning of section 6320 or 6330. As
     previously discussed, because petitioner failed to file
     a timely request for an Appeals Office hearing, the
     Appeals Office was not obliged to conduct such a
     hearing. In this regard, the decision letter was not,
     and did not purport to be, a determination letter
     pursuant to section 6320 or 6330. See Offiler v.
     Commissioner, supra at 495.

          In sum, we hold that respondent did not issue a
     determination letter to petitioner sufficient to invoke
     the Court’s jurisdiction to review the notice of intent
     to levy. Insofar as the petition filed herein purports
     to be a petition for review pursuant to section
     6330(d), we will dismiss the petition for lack of
     jurisdiction on the ground that respondent did not make
     a determination pursuant to section 6330 because
     petitioner failed to file a timely request for an
     Appeals Office hearing pursuant to section 6330(a)(2)
     and (3)(B) and (b).
                             - 12 -

     The decision letter regarding an equivalent hearing

concerning collection action upon which petitioner bases her

amended petition would be insufficient to invoke this Court’s

jurisdiction to review the merits of the proposed collection

activity even if we granted petitioner’s motion for leave.      Under

these circumstances, and considering the length of time

petitioner had to file an amended petition before her case was

dismissed, we will deny petitioner’s motion for leave.     It

follows that the Court’s order of dismissal for lack of

jurisdiction in this case became final on August 24, 2006, 90

days after the order of dismissal was entered.

     To reflect the foregoing,

                                        An appropriate order will

                                   be issued.
