                  T.C. Summary Opinion 2006-19



                     UNITED STATES TAX COURT



             LYNDA DIANE SAMPSON-GRAY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7689-04S.            Filed February 6, 2006.



     Lynda Diane Sampson-Gray, pro se.

     Joseph J. Boylan, for respondent.



     THORNTON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code.1     The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.




     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended.
                                 - 2 -

     Pursuant to section 6330(d), petitioner seeks review of an

Appeals Office determination sustaining a levy on petitioner’s

State income tax refund.   The issue for decision is whether

respondent abused his discretion in issuing the notice of

determination.

                             Background

     Petitioner filed her 1991, 1992, and 1997 Federal income

tax returns late.   Respondent assessed the taxes shown on the

returns and related additions to tax for failure to timely file

returns and pay taxes due.

     On or about October 1, 2002, respondent levied $537.32 of

petitioner’s State tax refund.    Respondent recorded this amount

as a payment on petitioner’s 1991 account, along with various

other payments, generating overpayment credits which respondent

transferred to petitioner’s 1992 and 1997 accounts.

      On February 3, 2003, respondent issued to petitioner a

notice indicating that the IRS had levied $537.52 of her State

tax refund to pay her unpaid Federal tax (no year specified).

Petitioner timely mailed to respondent a request for a hearing

under section 6330 as to the levy.

     Following exchanges of correspondence and a conference

between petitioner and representatives of respondent’s Appeals

Office, on April 5, 2004, the Appeals Office issued a Notice of

Determination, which states that it relates to petitioner’s 1997
                               - 3 -

tax year.2   On the same date, the Appeals Office also issued to

petitioner a “Decision Letter Concerning Equivalent Hearing

Under Section 6320 and/or 6330 of the Internal Revenue Code”

(the decision letter), which states that it relates to

petitioner’s 1991 tax year but is otherwise essentially

identical to the Notice of Determination.3   The Notice of

Determination and the decision letter conclude identically that

the required procedures had been followed for the levy on the

State tax refund.   The Notice of Determination and the decision

letter state identically:

     Although the liability is fully satisfied, you did not
     agree with our assessments, yet offered no substantive
     evidence, arguments, or legal authority, to support
     your position. I advised you to file * * * [a Form]
     843 [Claim for Refund and Request for Abatement]
     claim, since there are no other collection
     alternatives necessary. The action by Compliance to
     levy has been sustained.




     2
       An attachment to the Notice of Determination states that
because petitioner never received a Notice of Intent to Levy for
1992, “that year is not part of this hearing”.
     3
       Apparently, the decision letter was issued for 1991,
rather than a notice of determination, on the ground that
petitioner had timely failed to request a hearing with respect to
collection action relating to her 1991 tax year. Respondent
alleges that on Oct. 21, 2002, he issued to petitioner, with
respect to her 1991 tax liability, a Notice of Intent to Levy and
Notice of Your Right to Request a Hearing Under Section 6330 and
that petitioner did not request a hearing with respect to this
notice.
                              - 4 -

     Petitioner timely filed her petition in this Court,

indicating that she disagreed with respondent’s determinations

for 1991 and 1997.   She requested a refund of $537.52.4

                            Discussion

     If a person neglects or refuses to make payment of any

assessed Federal tax liability within 10 days of notice and

demand, the Secretary is authorized to collect the assessed tax

by levy on the person’s property.     Sec. 6331(a).   Section

6330(a) provides, however, that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a fair

hearing before making the levy.   The person has 30 days after

issuance of the notice to request the hearing.     Sec.

6330(a)(3)(B); sec. 301.6330-1(b)(1), Proced. & Admin. Regs.

     Under section 6330(f)(2), if the Secretary has served a

levy on a State to collect a Federal tax liability from a State

tax refund, the requirement of notice and opportunity for

hearing before levy under section 6330 shall not apply.

Nonetheless, the taxpayer shall be given the opportunity for the

hearing described in section 6330 within a reasonable period of



     4
       After a hearing in which petitioner questioned
respondent’s computations for her liability, respondent reported
to the Court that a review by an IRS revenue officer had
determined that petitioner had overpaid the interest due on her
1991 income tax liability by $139.02 and that respondent had
abated this amount of interest.
                              - 5 -

time after the levy.   Sec. 6330(f) (flush language).   We have

jurisdiction under section 6330(d) to review respondent’s

determination regarding the levy upon petitioner’s State tax

refund.   See Clark v. Commissioner, 125 T.C. 108 (2005).

     Respondent has filed a motion to dismiss for lack of

jurisdiction and to strike as to petitioner’s 1991 tax year, on

the ground that petitioner failed to timely request a hearing

within 30 days after the alleged issuance on October 21, 2002, of

a notice of intent to levy with respect to petitioner’s 1991 tax

liability.   There is no dispute, however, that petitioner timely

requested a hearing with respect to the February 3, 2003, notice

of levy upon her State tax refund, and that the levied funds were

recorded as a payment against petitioner’s 1991 tax liability,

generating overpayment credits that respondent applied against

her 1992 and 1997 tax liabilities.    On the same date that

respondent issued the Notice of Determination relating to

petitioner’s 1997 tax year, respondent also issued an “Equivalent

Hearing” decision letter concerning petitioner’s 1991 tax year.

That decision letter, coupled with petitioner’s timely petition

to this Court, serves to invoke this Court’s jurisdiction as to

petitioner’s tax year 1991 under section 6330(d)(1).    See Craig

v. Commissioner, 119 T.C. 252 (2002).    Accordingly, we shall deny

respondent’s motion.
                               - 6 -

     There is no dispute that petitioner’s 1991 and 1997 tax

liabilities have been fully satisfied and that respondent is no

longer pursuing any collection action with respect to those tax

liabilities.   The only relief petitioner has sought in this

proceeding is a refund of $537.52, on the ground that the levy

has resulted in overpayment of her 1991 and 1997 taxes by that

amount.   Although neither party has contested our jurisdiction to

consider petitioner’s refund claim in this section 6330

proceeding, jurisdiction may not be conferred upon the Court by

agreement or through equitable principles such as estoppel.

Clark v. Commissioner, supra at 109.     This Court can, sua sponte,

question its jurisdiction at any time.     Id.; Smith v.

Commissioner, 124 T.C. 36, 40 (2005).

     This Court has recently held that it lacks jurisdiction in

section 6330 collection proceedings to determine the amount of an

overpayment or to order a refund or credit of taxes.       Greene-

Thapedi v. Commissioner, 126 T.C. 1 (2006).    Accordingly, this

Court lacks jurisdiction to consider petitioner’s claim for a

refund in this collection proceeding.    Petitioner has not

alleged, and the record does not suggest, any procedural defect

in the levy upon her State tax refund such as might warrant the

Court’s exercise of its inherent equitable powers to order the
                                - 7 -

Commissioner to return petitioner’s State tax refund to her.5

Cf. Zapara v. Commissioner, 124 T.C. 223 (2005) (requiring the

Commissioner to provide the taxpayer a credit with respect to

property that the Commissioner had seized pursuant to a jeopardy

levy but had improperly refused to sell in compliance with the

taxpayer’s request made pursuant to section 6335(f)); Chocallo v.

Commissioner, T.C. Memo. 2004-152 (requiring the Commissioner to

return to the taxpayer, with interest, the amount collected by

levy where the levy had been made without following the hearing

procedures required under section 6330(b)).

       Although petitioner cannot pursue her claim for a refund in

this Court, she is not without a remedy, as she may file a claim

for refund with the IRS (as suggested in the Notice of

Determination and in the decision letter), and if the claim is

denied, sue for a refund in the Federal District Court or the

U.S. Court of Federal Claims.    See McCormick v. Commissioner, 55

T.C. 138, 142 (1970); Koerner v. Commissioner, T.C. Memo. 1997-

144.

       In light of the foregoing,


                                             Decision will be entered

                                        for respondent.



       5
       We expect respondent, however, to give petitioner proper
credit for the $139.02 of interest that respondent admits
petitioner overpaid for 1991.
