                                T.C. Memo. 2012-42



                          UNITED STATES TAX COURT



                   ROBERT C. HUGHES, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 20101-10L.                         Filed February 13, 2012.



      William G. Coleman, Jr., for petitioner.

      Horace Crump, for respondent.



                            MEMORANDUM OPINION


      VASQUEZ, Judge: This matter is before the Court on respondent’s motion

to dismiss for lack of jurisdiction. The issue for decision is whether petitioner
                                         -2-

prematurely petitioned the Court, thereby depriving us of jurisdiction under section

6330(d)(1).1

                                     Background

      The facts set forth below are based upon examination of the parties'

pleadings, motions, responses, and attachments. At the time he filed the petition,

petitioner resided in Mississippi.

      On January 8, 2001, the Internal Revenue Service (IRS) assessed a trust fund

recovery penalty against petitioner. In 2006 petitioner entered into an installment

agreement with the IRS that required him to pay $300 per month towards his

outstanding tax liability. In May 2009 the installment agreement was suspended and

subsequently reinstated at a higher monthly payment on the basis of changes in

petitioner’s financial status. Petitioner requested that the installment agreement be

reinstated at $300 per month. The IRS denied petitioner’s request.

      On March 11, 2010, the IRS sent petitioner Letter 3172, Notice of Federal

Tax Lien and Your Right to a Hearing.2 Petitioner appealed through the IRS’


      1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code, and all Rule references are to the Tax Court Rules of Practice and
Procedure.
      2
        It is unclear whether petitioner continued making monthly payments of
$300 or whether he ceased making payments altogether.
                                          -3-

Collection Appeals Program (CAP) regarding his installment agreement and also

requested a collection due process hearing (CDP hearing) by filing Form 12153,

Request for a Collection Due Process or Equivalent Hearing.

      On August 3, 2010, petitioner’s counsel had a telephone CAP hearing with

the IRS Office of Appeals (Appeals). On August 5, 2010, Appeals sent petitioner a

letter (CAP letter) regarding his CAP hearing which sustained the IRS’ denial of his

proposed installment agreement. The CAP letter did not purport to be a notice of

determination pursuant to section 6320 or 6330. Petitioner responded to the CAP

letter by filing a petition with the Court on September 9, 2010. The petition states

that the “notice of determination concerning collection action under Code section

6320 was made by the Internal Revenue Service Office of Appeals in Memphis,

Tennessee, on August 5, 2010”. Petitioner attached the CAP letter to his petition.

Upon receipt of the petition, the Court set petitioner’s case for trial at the Court’s

May 9, 2011, Jackson, Mississippi, trial session.

      Petitioner’s requested CDP hearing took place on December 8, 2010. On

December 14, 2010, Appeals issued to petitioner a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination) sustaining the filing of the lien. Petitioner did not petition the Tax

Court with regard to the notice of determination.
                                         -4-

      On May 9, 2011, respondent made an oral motion to dismiss for lack of

jurisdiction claiming that the Court lacked jurisdiction to hear petitioner’s case

because petitioner had filed his petition before the December 14, 2010, notice of

determination was issued.

                                      Discussion

      The Tax Court is a court of limited jurisdiction, and we may exercise our

jurisdiction only to the extent authorized by Congress. Naftel v. Commissioner, 85

T.C. 527, 529 (1985). The Court’s jurisdiction 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, 8 (2004), aff’d,

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). In the absence of either, this Court

lacks jurisdiction.

      The IRS had not issued a notice of determination to petitioner when he filed

his petition on September 9, 2010. The CAP letter petitioner attached to his petition

is not a notice of determination conferring jurisdiction on this Court. See sec.

301.6320-1(b)(2), Q&A-B5, Proced. & Admin. Regs. Regulations promulgated

under section 6320 state that a CAP hearing is not “a CDP hearing
                                         -5-

under section 6320 and any determination or decision resulting from the hearing

would not be subject to judicial review under section 6320.” Id. Thus, the CAP

letter does not constitute a notice of determination under sections 6320 and 6330

that would provide a basis for petitioner to invoke the Court’s jurisdiction. See

Offiler v. Commissioner, 114 T.C. at 498 (finding no notice of determination

conferring jurisdiction when Appeals reviewed taxpayer’s case pursuant to CAP).

       Furthermore, we do not have jurisdiction to review the notice of

determination that was issued after petitioner filed his petition. For the Tax Court to

have jurisdiction under sections 6320 and 6330, a taxpayer must petition the Court

within 30 days of the determination following a section 6330 hearing. Secs.

6320(c), 6330(d)(1). The IRS issued the notice of determination to petitioner on

December 14, 2010, and petitioner did not file a petition with this Court within 30

days. Accordingly, we must grant respondent’s motion to dismiss for lack of

jurisdiction.

       To reflect the foregoing,

                                                     An order of dismissal for

                                        lack of jurisdiction will be entered.
