                         T.C. Memo. 2008-206



                       UNITED STATES TAX COURT



          PHILIP ALBERT AND ANA M. HENDELES, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12875-07.               Filed August 28, 2008.



     Philip Albert and Ana M. Hendeles, pro sese.

     Edward Lee Walter, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion to dismiss for lack of jurisdiction as supple-

mented.    (For convenience, we shall refer to respondent’s motion

to dismiss for lack of jurisdiction as supplemented as respon-

dent’s motion.)   We shall grant respondent’s motion.
                                  - 2 -

                               Background

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

following.

       Petitioners’ address shown in the petition in this case was

in Lancaster, Ohio.

       Respondent prepared a substitute for return for petitioners’

taxable year 2002.

       On February 15, 2005, respondent issued to petitioners a

notice of deficiency with respect to their taxable year 2002.

       On July 25, 2005, respondent assessed Federal income tax

(tax) of $3,944, additions to tax under sections 6651(a)(1)1 and

(2) and 6654(a) of $887.40, $552.16, and $131.77, respectively,

and interest as provided by law of $559 for petitioners’ taxable

year 2002.      On July 25, 2005, respondent abated the addition to

tax under section 6654(a) that respondent had assessed for that

year.      (We shall refer to any unpaid and unabated assessed

amounts with respect to petitioners’ taxable year 2002, as well

as interest as provided by law accrued after July 25, 2005, as

petitioners’ unpaid 2002 liability.)

       On July 25, 2005, respondent issued to petitioners a notice

of balance due with respect to petitioners’ unpaid 2002 liabil-

ity.


       1
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

     On February 20, 2006, respondent issued to petitioners a

final notice of intent to levy and notice of your right to a

hearing (notice of intent to levy) with respect to petitioners’

unpaid 2002 liability.

     On March 21, 2006, petitioners submitted to respondent a tax

return (return) for their taxable year 2002.   Based upon the

information that petitioners reported in that return, on June 19,

2006, respondent abated the following amounts of tax, additions

to tax, and interest as provided by law that respondent had

assessed for petitioners’ taxable year 2002:   (1) $3,290 of tax,

(2) $787.40 of the addition to tax under section 6651(a)(1),

(3) $477.87 of the addition to tax under section 6651(a)(2), and

(4) $475.55 of interest as provided by law.

     On January 5, 2007, petitioners submitted to respondent an

amended return for their taxable year 2002 in which they reported

total tax of zero.   In response to that amended return, respon-

dent sent petitioners a letter dated May 22, 2007 (respondent’s

May 22, 2007 letter).    In that letter, respondent indicated that

respondent was disallowing petitioners’ “claim for credit”.

     On June 5, 2007, petitioners filed a petition commencing

this case.   In the petition, petitioners alleged that the peti-

tion was a “Petition for Redetermination of a Deficiency”.

Petitioners also alleged in the petition that they disagree “with

the determination contained in the notice issued by the Internal
                               - 4 -

Revenue Service for the year(s) or period(s) 2002, as set forth

in such notice dated 10/16/2006 and 5/22/2007”.    Petitioners

attached to the petition the following two documents pertaining

to petitioners’ taxable year 2002:     (1) Notice CP 504, “URGENT!!

We intend to levy on certain assets.     Please respond NOW.”, dated

October 16, 2006 (October 16, 2006 Notice CP 504), and

(2) respondent’s May 22, 2007 letter disallowing petitioners’

“claim for credit”.

     On February 29, 2008, respondent filed a motion to dismiss

for lack of jurisdiction.   In that motion, respondent asserts

that, after a diligent search, respondent was unsuccessful in

retrieving the administrative file for petitioners’ taxable year

2002.   Respondent, however, also asserts in respondent’s motion

to dismiss for lack of jurisdiction that (1) respondent was able

to retrieve Form 4340, CERTIFICATE OF ASSESSMENTS, PAYMENTS, AND

OTHER SPECIFIED MATTERS (Form 4340), for petitioners’ taxable

year 2002, (2) that form shows that on February 15, 2005, respon-

dent issued to petitioners a notice of deficiency, and (3) “There

is no record of a petition being filed with the Tax Court within

the time periods prescribed by law” with respect to that notice.

In respondent’s motion to dismiss for lack of jurisdiction,

respondent further asserts that (1) Form 4340 for petitioners’

taxable year 2002 also shows that on February 20, 2006, respon-

dent issued to petitioners a notice of intent to levy, and
                               - 5 -

(2) “There is no record of a collection due process appeal being

filed” with respondent with respect to that notice.

     On March 3, 2008, the Court issued an Order in which it

ordered petitioners to file a response to respondent’s motion to

dismiss for lack of jurisdiction.   Petitioners failed to do so.

     On March 17, 2008, the Court held a hearing on respondent’s

motion to dismiss for lack of jurisdiction.   There was no appear-

ance by or on behalf of petitioners.   Counsel for respondent

appeared and was heard.

     On April 16 and June 2, 2008, respectively, respondent filed

a supplement to respondent’s motion to dismiss for lack of

jurisdiction (respondent’s first supplement) and a second supple-

ment to that motion (respondent’s second supplement).   In each of

those supplements, respondent asserts that respondent found

certain documents pertaining to petitioners’ taxable year 2002

but was unable to find certain other documents pertaining to that

year.   In respondent’s second supplement, respondent further

asserts that petitioner Philip Albert Hendeles (Mr. Hendeles)

stated to respondent’s counsel that “he had preserved copies of

all documents related to his case, but would not commit to

providing copies to respondent.”    Respondent attached to respon-

dent’s second supplement a letter dated May 21, 2008, from Mr.

Hendeles to respondent’s counsel.   That letter stated in perti-

nent part:
                               - 6 -

     I have in my possession, documents that will prove my
     posture and tax case matters.

     * * * I perceive no valid reason why I should assist
     the Internal Revenue Service * * * in any manner,
     whatsoever * * *.

     On June 9, 2008, the Court issued an Order in which it

ordered petitioners (1) to file a response to respondent’s motion

to dismiss for lack of jurisdiction as supplemented by respon-

dent’s first supplement and respondent’s second supplement and

(2) to attach to that response “all documents in their possession

that are relevant to the instant case.”

     On June 25, 2008, petitioners submitted a document that the

Court had filed as petitioners’ response to respondent’s motion

to dismiss for lack of jurisdiction as supplemented by respon-

dent’s first supplement and respondent’s second supplement

(petitioners’ response).   Petitioners attached to that response a

letter dated May 31, 2007 (respondent’s May 31, 2007 letter) from

respondent to petitioners.   That letter stated in pertinent part:

“We’ve enclosed the transcript or transcripts that you requested

on May 31, 2007.”   Petitioners also attached to petitioners’

response the transcript of account for petitioners’ taxable year

2002 (2002 transcript of account) that respondent had attached to

respondent’s May 31, 2007 letter.   Petitioners assert in peti-

tioners’ response that that transcript constitutes a notice of

deficiency and that therefore on June 5, 2007, petitioners

“rightfully [invoked] the jurisdiction” of the Court.
                               - 7 -

     On August 7, 2008, respondent filed a third supplement to

respondent’s motion to dismiss for lack of jurisdiction (respon-

dent’s third supplement).   In that supplement, respondent asserts

that “respondent has not received a copy of any notice of defi-

ciency or notice of determination from the petitioners”.    Respon-

dent further asserts in respondent’s third supplement that

(1) respondent was not successful in retrieving any other docu-

mentation pertaining to petitioners’ taxable year 2002, and

(2) “The Appeals Office has no record of a collection due process

file or the opening of a collection due process case” for that

year.

                            Discussion

     Petitioners bear the burden of proving that the Court has

jurisdiction over this case.   See Patz Trust v. Commissioner, 69

T.C. 497, 503 (1977).

     It is petitioners’ position that they timely filed the

petition on June 5, 2007, in response to a notice of deficiency

with respect to their taxable year 2002.   In the petition,

petitioners alleged that the petition was a “Petition for

Redetermination of a Deficiency” and that they disagree “with the

determination contained in the notice issued by the Internal

Revenue Service for the year(s) or period(s) 2002, as set forth

in such notice dated 10/16/2006 and 5/22/2007”.   Petitioners

attached to the petition the following two documents pertaining
                               - 8 -

to petitioners’ taxable year 2002:     (1) The October 16, 2006

Notice CP 504 in which respondent informed petitioners that

respondent intended to levy on certain of their assets and

(2) respondent’s May 22, 2007 letter in which respondent informed

petitioners that respondent was disallowing their “claim for

credit”.   In petitioners’ response, however, petitioners argue

that the notice of deficiency upon which this case is based is

the 2002 transcript of account that respondent sent them by

letter dated May 31, 2007.   According to petitioners, because

that transcript shows that “petitioners owe * * * $349.07 * * *

for the tax period ending 2002”, it constitutes a notice of

deficiency.2

     Respondent counters that the Court does not have jurisdic-

tion over this case.   According to respondent, none of the

documents upon which petitioners rely, i.e., the October 16, 2006

Notice CP 504, respondent’s May 22, 2007 letter, and the 2002

transcript of account that respondent sent petitioners by letter

dated May 31, 2007, constitutes a notice of deficiency.     Respon-

dent further points out, and petitioners do not dispute, (1) that



     2
      Petitioners do not argue that they filed the petition
commencing the instant case in response to the notice of defi-
ciency with respect to their taxable year 2002 that respondent
issued to them on Feb. 15, 2005. We note that even if petition-
ers had filed the petition with respect to that notice, the
petition would not have been timely filed. That is because
petitioners did not file the petition until June 5, 2007. See
sec. 6213(a).
                                - 9 -

the record establishes that on February 15, 2005, respondent

issued to petitioners a notice of deficiency with respect to

their taxable year 2002 and (2) that “There is no record of a

petition being filed with the Tax Court within the time periods

prescribed by law” with respect to that notice.    We agree with

respondent that the Court does not have jurisdiction over this

case.

     The Court’s jurisdiction to redetermine a deficiency depends

upon the issuance of a valid notice of deficiency and a timely

filed petition.    Rule 13(a), (c); Monge v. Commissioner, 93 T.C.

22, 27 (1989).    In determining whether a letter issued by the

Commissioner of Internal Revenue (Commissioner) is a notice of

deficiency, the Court looks to whether the letter purports to be

a notice of deficiency and whether the Commissioner intended it

as such.   See Abrams v. Commissioner, 84 T.C. 1308, 1310 (1985),

affd. 787 F.2d 939 (4th Cir. 1986), affd. sub nom. Benzvi v.

Commissioner, 787 F.2d 1541 (11th Cir. 1986), affd. sub nom.

Spector v. Commissioner, 790 F.2d 51 (8th Cir. 1986), affd. sub

nom. Donley v. Commissioner, 791 F.2d 383 (5th Cir. 1986), affd.

without published opinion sub nom. Becker v. Commissioner, 799

F.2d 753 (7th Cir. 1986), affd. sub nom. Alford v. Commissioner,

800 F.2d 987 (10th Cir. 1986), affd. sub nom. Gaska v. Commis-

sioner, 800 F.2d 633 (6th Cir. 1986), affd. 814 F.2d 1356 (9th

Cir. 1987).
                               - 10 -

     We have reviewed the October 16, 2006 Notice CP 504, respon-

dent’s May 22, 2007 letter, and the 2002 transcript of account

that respondent sent to petitioners by letter dated May 31, 2007.

We conclude that respondent did not intend any of those documents

to be a notice of deficiency with respect to petitioners’ taxable

year 2002.    We further conclude that the October 16, 2006 Notice

CP 504, respondent’s May 22, 2007 letter, and the 2002 transcript

of account that respondent sent to petitioners by letter dated

May 31, 2007, are not, and do not purport to be, notices of

deficiency.

     Petitioners do not claim that respondent issued to them any

other type of determination with respect to their taxable year

2002 that would confer jurisdiction on the Court.   However, for

the sake of completeness, we shall consider whether respondent

issued to petitioners any such determination.

     Petitioners did not timely file a petition with the Court in

response to the notice of deficiency with respect to their

taxable year 2002 that respondent issued to them on February 15,

2005.   As a result, on July 25, 2005, respondent assessed a

deficiency in, and additions to, petitioners’ tax, as well as

interest as provided by law, for that year.   On February 20,

2006, respondent issued to petitioners a notice of intent to levy

with respect to their taxable year 2002.   Petitioners do not

claim that they filed a request for a hearing with respondent’s
                              - 11 -

Appeals Office with respect to that notice.    On the record before

us, we conclude that respondent did not issue to petitioners a

determination under section 6330 with respect to their taxable

year 2002.   See Moorhous v. Commissioner, 116 T.C. 263, 270

(2001); Kennedy v. Commissioner, 116 T.C. 255, 263 (2001);

Offiler v. Commissioner, 114 T.C. 492, 497 (2000).

     On the record before us, we further conclude that respondent

did not issue to petitioners any other type of determination with

respect to their taxable year 2002 that would confer jurisdiction

on the Court.

     We hold that we do not have jurisdiction over this case.

     We have considered all of the parties’ contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,


                                      An order granting respondent’s

                                 motion as supplemented and

                                 dismissing this case for lack of

                                 jurisdiction will be entered.
