                        T.C. Memo. 2006-94



                      UNITED STATES TAX COURT



 MARS’S CONTRACTORS, INC., A FLORIDA CORPORATION, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11131-05L.            Filed May 3, 2006.



     Vera Elaine Gilford, for petitioner.

     Justin Campolieta, for respondent.



                        MEMORANDUM OPINION


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

motion to dismiss for lack of jurisdiction.     This case involves

respondent’s determination that a collection action is

appropriate under sections 6320 and 6330.1


     1
      All section references are to the Internal Revenue Code in
                                                   (continued...)
                                - 2 -

     Respondent argues that the underlying tax liability in

question is employment taxes and that this Court’s lack of

jurisdiction over the underlying tax liability negates our

jurisdiction under section 6330(d)(1)(B).   Petitioner counters

that this Court does have jurisdiction to review the status of

employees pursuant to section 7436 and reasons that we do have

jurisdiction of the underlying tax liability in question.

However, petitioner concedes that the employment tax liabilities

which are the subject of respondent’s collection efforts do not

involve the redetermination of the employment status of

individuals.

     The issue before us is whether we have jurisdiction to

review respondent’s determination regarding collection action of

employment tax liabilities.    As explained in more detail below,

because this Court does not have jurisdiction of the underlying

tax liability, respondent’s motion will be granted.

                              Background

     On May 10, 2005, respondent issued a Notice of Determination

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

(notice of determination).    The notice of determination sustained

a proposed notice of levy attempting to collect employment tax

liabilities and penalties related to Forms 941, Employer’s



     1
      (...continued)
effect at all relevant times.
                                 - 3 -

Quarterly Federal Tax Return, filed for the quarters ending

September 30, 1999, and June 30 and September 30, 2002.       The

amounts involved do not arise because of the determination of

employment status as described in section 7436.     Rather,

petitioner’s primary contentions relate to penalties.

     On June 16, 2005, petitioner filed a timely petition seeking

a review of respondent’s notice of determination.     On July 29,

2005, respondent filed a motion to dismiss for lack of

jurisdiction.     A hearing on respondent’s motion, at which both

counsel for petitioner and counsel for respondent appeared, was

held on December 12, 2005, in Miami, Florida.

                              Discussion

     Petitioner asserts that this Court has jurisdiction of

employment tax issues involving employment status under section

7436.2   Petitioner reasons that because we have jurisdiction of


     2
      Sec. 7436(a) provides:

     SEC. 7436.    PROCEEDINGS FOR DETERMINATION OF EMPLOYMENT
                   STATUS

          (a) Creation of Remedy.--If, in connection with
     an audit of any person, there is an actual controversy
     involving a determination by the Secretary as part of
     an examination that--

                (1) one or more individuals performing
           services for such person are employees of
           such person for purposes of subtitle C, or

                (2) such person is not entitled to the
           treatment under subsection (a) of section 530
                                                    (continued...)
                                - 4 -

employment tax issues in some instances, we have jurisdiction in

the present case.   Respondent counters that this is not a case

involving redetermination of employment status.

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

exercise our jurisdiction only to the extent authorized by

Congress.   Sec. 7442.   The Court’s jurisdiction over collection

matters under section 6330(d)(1) is limited to situations where

the Court has jurisdiction over the “underlying tax liability”.

We read “underlying tax liability” in section 6330(d)(1)(B) to be

case specific.   Our jurisdiction in employment tax matters is

likewise limited, and petitioner concedes that we would lack

jurisdiction under section 7436 to address the merits of the

employment tax and penalties which respondent is attempting to

collect.    Because we do not have jurisdiction over the underlying

tax liability in this case, we do not have jurisdiction over the

related collection action.   See Moore v. Commissioner, 114 T.C.

171 (2000); see also Gorospe v. Commissioner, ___ F.3d ___ (9th

Cir. 2006).


     2
      (...continued)
          of the Revenue Act of 1978 with respect to
          such an individual,

     upon the filing of an appropriate pleading, the Tax
     Court may determine whether such a determination by the
     Secretary is correct and the proper amount of
     employment tax under such determination. Any such
     redetermination by the Tax Court shall have the force
     and effect of a decision of the Tax court and shall be
     reviewable as such.
                                 - 5 -

     Under section 6330(d)(1), petitioner will have 30 days after

our order in this case is entered to file an action in a District

Court of the United States.

     To reflect the foregoing,


                                 An appropriate order of dismissal

                         for lack of jurisdiction will be

                         entered.
