                       T.C. Memo. 2003-123



                     UNITED STATES TAX COURT



                 ROCKIE D. ELMORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14374-02L.               Filed April 29, 2003.


     Rockie D. Elmore, pro se.

    Scott A. Hovey, for respondent.



                       MEMORANDUM OPINION


     ARMEN, Special Trial Judge:     This matter is before the Court

on petitioner’s Motion to Dismiss.    Petitioner contends that the

Court lacks jurisdiction over the petition on the ground the

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, dated April 11, 2002, upon which this

case is based, is invalid because it was not signed by the
                                - 2 -

Appeals officer who conducted the administrative hearing.1      As

discussed in detail below, we shall deny petitioner’s Motion to

Dismiss.

Background

     The record establishes and/or the parties do not dispute the

following:

     A.    Final Notice of Intent To Levy

     On January 25, 2001, respondent sent to Rockie D. Elmore

(petitioner) and Leslie J. Elmore (together, the Elmores) a Final

Notice–Notice of Intent to Levy and Notice of Your Right to a

Hearing under section 6330 in respect of their outstanding tax

liability for 1998.    The final notice of intent to levy was

issued by the Chief of the Automated Collection Branch in Austin,

Texas.

     B.    The Elmores’ Request for a Hearing

     On February 14, 2001, the Elmores filed with respondent Form

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

of their tax liability for 1998.    The Elmores’ request for a

hearing stated that they were challenging the final notice of

intent to levy.




     1
        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.
                               - 3 -

     C.   The Appeals Office Hearing

     On March 28, 2002, the Elmores attended an administrative

hearing conducted by Appeals Officer Concepcion Robles, whose

post of duty was San Antonio, Texas.   The administrative hearing

was held at the IRS Appeals Office in Corpus Christi, Texas, the

city in which the Elmores resided.

     By Appeals Transmittal and Case Memo dated April 1, 2002,

Appeals Officer Robles recommended to his manager that the

Appeals Office issue a notice of determination.   At that time,

the Appeals officer’s manager was Appeals Team Manager John

LaCoke of the San Antonio Appeals Office (ATM LaCoke).2   However,

ATM LaCoke was out of the office from April 2 to 4, 2002.    In his

absence, ATM LaCoke designated Appeals Officer Glenn Pederson as

the acting team manager.   On April 3, 2002, Acting ATM Pederson

approved the recommendation of Appeals Officer Robles that the

Appeals Office issue a notice of determination.

     D.   Respondent’s Notice of Determination

     On April 11, 2002, the Appeals Office issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under



     2
        An Appeals team manager (ATM) is a supervisory Appeals
officer who is responsible for managing and reviewing Appeals
officers within the jurisdiction of a particular Appeals Office.
An ATM’s duties include, inter alia, reviewing work for quality
and professional standards, approving recommendations by Appeals
officers who lack authority to take the recommended action
themselves, and supervising the general work performance of
Appeals officers.
                                - 4 -

Section 6320 and/or 6330 with regard to petitioner’s tax

liability for 1998.   The notice of determination stated in

pertinent part: “Enforced collection, in the form of the proposed

levy action, is appropriate in this situation.”

     The notice of determination was executed on behalf of ATM

LaCoke by John T. Benton, Appeals Team Manager of the Appeals

Office in Austin, Texas (ATM Benton).   At that time, the Austin

and San Antonio Appeals Offices shared a Records Unit, which was

located in Austin.    The Records Unit was responsible for mailing

all notices of determination for the two offices.   The agreed

upon practice was for ATM Benton to sign for ATM LaCoke whenever

approval for the issuance of a notice of determination was given

by an acting ATM in the San Antonio Appeals Office.   The Austin

and San Antonio Appeals Offices adopted this practice in order to

eliminate any question regarding the validity of a notice of

determination that was mailed after the acting ATM’s authority

had expired.

     E.   The Petition

     On September 9, 2002, petitioner filed with the Court a

petition challenging respondent’s notice of determination dated

April 11, 2002.3   Although Leslie J. Elmore joined in filing the


     3
        The petition in this case was timely filed under sec.
6330(d)(1) inasmuch as petitioner initially filed a timely
complaint challenging the notice of determination in Federal
District Court, and petitioner subsequently filed his petition
                                                   (continued...)
                               - 5 -

petition in this case, the Court granted respondent’s motion to

dismiss as to Leslie J. Elmore on the ground that a notice of

determination was not issued to her.

     F.   Petitioner’s Motion To Dismiss

     As stated, petitioner filed a Motion to Dismiss.   Respondent

filed an objection to petitioner’s motion.    Pursuant to notice,

this matter was called for hearing (on two occasions) at the

Court’s motions session in Washington, D.C.   Counsel for

respondent appeared at the hearings and offered argument in

opposition to petitioner’s motion to dismiss.4   Although there

was no appearance by or on behalf of petitioner at either

hearing, petitioner filed with the Court a written statement

pursuant to Rule 50(c), as well as a Response to respondent’s

objection.




     3
      (...continued)
with this Court within 30 days of the District Court’s order
dismissing the action for lack of subject matter jurisdiction.
See Hickey v. Commissioner, T.C. Memo. 2003-76.
     4
        During the second hearing, counsel for respondent
informed the Court that the Office of Chief Appeals recently
issued Delegation Order No. App 8-a authorizing: (1) Appeals
officers and Settlement officers to conduct hearings and make
determinations under secs. 6320 and 6330; and (2) Appeals Team
Managers to review and approve such determinations. The
effective date of this delegation order is Mar. 17, 2003. The
delegation order concludes as follows: “To the extent that
authority previously exercised consistent with this order may
require ratification, it is hereby affirmed and ratified.”
                               - 6 -

Discussion

     The Tax Court is a court of limited jurisdiction.    We may

exercise jurisdiction only to the extent expressly authorized by

statute.   Breman v. Commissioner, 66 T.C. 61, 66 (1976).

     Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon the person’s property.   Section

6331(d) provides that, at least 30 days prior to proceeding with

a levy on a person's property, the Secretary is obliged to

provide the person with a final notice of intent to levy,

including notice of the administrative appeals available to the

person.

     Section 6330 generally provides that the Commissioner cannot

proceed with a levy until the taxpayer has been given notice of

and the opportunity for an administrative review of the matter,

in the form of an Appeals Office hearing, and if dissatisfied,

the taxpayer may seek judicial review of the administrative

determination.   See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

     Section 6330(b)(1) provides that if the taxpayer requests an

administrative hearing, such hearing will be conducted by the

Internal Revenue Service Office of Appeals.   Section 6330(c)(2)

provides that an Appeals officer shall investigate the matter and
                               - 7 -

obtain verification from the Secretary that the requirements of

any applicable law or administrative procedure have been met.

Further, section 6330(c)(3) lists the factors that an Appeals

officer must consider in making his or her determination.

     When the Appeals Office issues a determination letter to a

taxpayer following an administrative hearing regarding a notice

of intent to levy, section 6330(d)(1) provides that the taxpayer

will have 30 days following the issuance of such determination

letter to file a petition for review with the Tax Court or

Federal District Court, as appropriate.   See Offiler v.

Commissioner, 114 T.C. 492, 498 (2000).   We have held that this

Court’s jurisdiction under section 6330 depends upon the issuance

of a valid determination letter and the filing of a timely

petition for review.   See Sarrell v. Commissioner, 117 T.C. 122,

125 (2001); Moorhous v. Commissioner, 116 T.C. 263, 269 (2001);

Offiler v. Commissioner, supra at 498; see also Rule 330(b).

     As indicated, petitioner challenges the validity of the

notice of determination on the ground that it was not properly

signed.   In addressing petitioner’s contention, we note as an

initial matter that section 6330 does not require that a notice

of determination be signed.   Cf. Pendola v. Commissioner, 50 T.C.

509, 513-514 (1968) (a notice of deficiency need not be signed in

order to be valid); Fox v. Commissioner, T.C. Memo. 1993-277,

affd. without published opinion 69 F.3d 543 (9th Cir. 1995)
                               - 8 -

(holding that section 6212 does not require that a notice of

deficiency be signed).

     Although the provisions cited above reflect the prominent

role that Appeals officers are assigned in collection review

cases, we reject the premise underlying petitioner’s position;

i.e., that only the Appeals officer who conducted the

administrative hearing may sign a notice of determination.    To

the extent that the Commissioner and/or the Office of Chief

Appeals has decided that notices of determination under sections

6320 and 6330 should be reviewed, approved, and signed by Appeals

Team Managers (as was the case here), such decision is not in

derogation of section 6330 but rather constitutes an internal

agency matter that we are not inclined to question.5

     Consistent with the preceding discussion, we conclude that

the Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, dated April 11, 2002, upon which this

case is based, is valid.   Accordingly, we shall deny petitioner’s



     5
        Indeed, by interposing a layer of review between the
determination by an Appeals officer and the issuance of a notice
of determination, the taxpayer protections afforded by sec. 6330
are strengthened, which is consistent with the enactment of that
section by the Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. 105-206, sec. 3401(b), 112 Stat. 685. See
S. Rept. 105-174, at 67-69 (1998), 1998-3 C.B. 537, 603-605; H.
Conf. Rept. 105-599, at 263-266 (1998), 1998-3 C.B. 755, 1017-
1020; cf. sec. 7122(d)(1) (requiring procedures for an
independent administrative review of any rejection of a proposed
offer-in-compromise or installment agreement made by a taxpayer
before such rejection is communicated to the taxpayer).
                              - 9 -

Motion to Dismiss.

     In order to give effect to the foregoing,



                              An order denying petitioner's

                         motion to dismiss will be issued.
