                        114 T.C. No. 30



                 UNITED STATES TAX COURT



LUCIELLE J. OFFILER, A.K.A. LUCILLE OFFILER, Petitioner v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



 Docket No. 16389-99.                      Filed June 19, 2000.



      On Feb. 1, 1999, R mailed to P a Final Notice-
 Notice of Intent to Levy and Notice of Your Right to a
 Hearing, as required by sec. 6330, I.R.C. The notice
 pertained to P’s unpaid income tax liabilities for 1994
 and 1995. Sec. 6330(a), I.R.C., requires only one such
 notice for the tax period for which R is attempting to
 collect tax. Under sec. 6330, I.R.C., P had 30 days in
 which to request a hearing before the IRS Office of
 Appeals. P did not request a hearing within 30 days of
 Feb. 1, 1999. Had a timely request for hearing been
 made, sec. 6330(c), I.R.C., provides for a hearing and
 “determination” by Appeals regarding the propriety of
 the proposed levy. Sec. 6330(d), I.R.C. permits an
 appeal of such a determination to this Court within 30
 days of the date of such determination. Because P
 failed to make a timely request for hearing pursuant to
 sec. 6330, I.R.C., R was not required to, and did not,
 make a “determination” within the meaning of sec. 6330,
 I.R.C.
                               - 2 -

          Held: Pursuant to sec. 6330(d), I.R.C., our
     jurisdiction is dependent upon the issuance of a
     determination and the filing of a petition within 30
     days of the issuance of such determination. Because R
     did not issue a determination to P, we must dismiss
     this case for lack of jurisdiction.


     Lucielle J. Offiler, pro se.

     Monica J. Miller, for respondent.



                              OPINION


     RUWE, Judge:   The petition in this case is based on

respondent’s alleged failure to hold a meaningful collection due

process hearing as required by section 6330.1   Respondent moved

to dismiss for lack of jurisdiction on the grounds that

petitioner did not make a timely request for a collection due

process hearing by the Internal Revenue Service, Office of

Appeals (Appeals), and therefore respondent was not required to,

and did not, hold a hearing or issue a notice of determination

which is a prerequisite to our jurisdiction under section

6330(d).   At the time the petition was filed, petitioner resided

in Kissimmee, Florida.

                            Background

     Petitioner seeks relief with respect to her 1993, 1994, and

1995 tax years.   On October 13, 1995, a notice of deficiency for


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code applicable to the years in issue.
                              - 3 -

1993 was sent to petitioner’s last known address.    The 90-day

period for timely filing a petition with this Court regarding

this notice of deficiency expired on January 11, 1996.    A notice

of deficiency for 1994 and 1995 was mailed to petitioner’s last

known address on July 25, 1997.    The 90-day period for timely

filing a petition with this Court regarding this notice of

deficiency expired on October 23, 1997.    Petitioner received

these notices of deficiency but did not file timely petitions

with regard to either notice of deficiency.    As a result,

respondent assessed the deficiencies determined in those

notices.2

     On February 1, 1999, a Final Notice-Notice of Intent to Levy

and Notice of Your Right to a Hearing was sent to petitioner

regarding unpaid income taxes for 1994 and 1995.    The notice did

not pertain to petitioner’s 1993 income tax, and petitioner has

no unpaid tax with respect to 1993.    The notice contained the

following pertinent information:

                           FINAL NOTICE
             NOTICE OF INTENT TO LEVY AND NOTICE OF
                     YOUR RIGHT TO A HEARING


     2
      To the extent that the petition in this case could possibly
be construed as a petition to the notices of deficiency, dated
Oct. 13, 1995 (for the taxable year 1993), and July 25, 1997 (for
the taxable years 1994 and 1995), the petition is obviously not
timely. Sec. 6213 generally allows taxpayers 90 days from the
date of the notice of deficiency in which to file a petition.
Our jurisdiction with respect to a notice of deficiency is
dependent upon a timely petition. See sec. 6213; Goza v.
Commissioner, 114 T.C. 176 (2000).
                              - 4 -

                   PLEASE RESPOND IMMEDIATELY

          Your federal tax is still not paid. We previously
     asked you to pay this, but we still haven’t received
     your payment. This letter is your notice of our intent
     to levy under Internal Revenue Code (IRC) Section 6331
     and your right to receive Appeals consideration under
     IRC Section 6330.

          We may file a Notice of Federal Tax Lien at any
     time to protect the government’s interest. A lien is a
     public notice to your creditors that the government has
     a right to your current assets, including any assets
     you acquire after we file the lien.

          If you don’t pay the amount you owe, make
     alternative arrangements to pay, or request Appeals
     consideration within 30 days from the date of this
     letter, we may take your property, or rights to
     property, such as real estate, automobiles, business
     assets, bank accounts, wages, commissions, and other
     income. We’ve enclosed Publication 594 with more
     information, Publication 1660 explaining your right to
     appeal, and Form 12150 to request a Collection Due
     Process Hearing with Appeals.

Petitioner did not request a collection due process hearing with

Appeals within 30 days of the issuance of the above notice.

Respondent thereafter initiated enforced collection by way of

levy.

     In addition to the notice regarding a taxpayer’s right to a

collection due process hearing pursuant to section 6330,

respondent also provides Form 9423, Collection Appeal Request,

for taxpayers to make requests for Appeals review of collection

action under respondent’s Collection Appeals Program (CAP).    CAP

is an administrative review program not required by statute.    See

5 Administration, Internal Revenue Manual (CCH), sec. 9.4, at
                               - 5 -

15,261.   On June 3, 1999, petitioner sent a Collection Appeal

Request, Form 9423, to respondent regarding her income tax

liabilities for 1993, 1994, and 1995.    In an attachment to the

form requesting a “CAP hearing”, petitioner states that she

accepts the offer of a “Collection Due Process Hearing”.    The

only offer of a collection due process hearing by respondent was

contained in the notice that respondent mailed to petitioner on

February 1, 1999, regarding her unpaid 1994 and 1995 income tax

liabilities.

     In response to petitioner’s Collection Appeals Request of

June 3, 1999, respondent sent a letter to petitioner dated

September 30, 1999, which denied the request.    The denial of the

request pertained only to amounts due with respect to

petitioner’s income tax liabilities for 1994 and 1995.    (As

previously mentioned, there is no unpaid liability for 1993.)

This letter was not, and did not purport to be, a notice of

determination pursuant to section 6330.    The petition that gives

rise to this case was filed on October 29, 1999.

                            Discussion

     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 property belonging to the taxpayer.

In the Internal Revenue Service Restructuring and Reform Act of
                                - 6 -

1998 (RRA 1998), Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746,

Congress enacted new sections 6320 (pertaining to liens)3 and

6330 (pertaining to levies) to provide what have been described

as “due process” protections for taxpayers in tax collection

matters.4   Section 6330 generally provides that the Commissioner

cannot proceed with the collection of taxes by way of a levy on a

taxpayer's property 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 due process hearing) and if

dissatisfied, with judicial review of the administrative

determination.   In pertinent part, section 6330 provides:

     SEC. 6630(a)   Requirement of Notice Before Levy.--

          (1) In general.--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 their
     right to a hearing under this section before such levy
     is made. Such notice shall be required only once for
     the taxable period to which the unpaid tax specified in
     paragraph (3)(A) relates.

          (2) Time and method for notice.--The notice
     required under paragraph (1) shall be--

                 (A) given in person;

                 (B) left at the dwelling or usual place of


     3
      There is nothing in the record to indicate that respondent
issued a notice regarding the filing of a lien or that any
determination was ever made with respect to matters covered by
sec. 6320. The Feb. 1, 1999, notice is a notice of intent to
levy, which is governed by sec. 6330.
     4
      While these provisions have been described in terms of “due
process”, they are legislative enactments.
                          - 7 -

      business of such person; or

           (C) sent by certified or registered mail,
      return receipt requested, to such person’s last
      known address,

not less than 30 days before the day of the first levy
with respect to the amount of the unpaid tax for the
taxable period.

     (3) Information included with notice.--The notice
required under paragraph (1) shall include in simple
and nontechnical terms--

           (A) the amount of unpaid tax;

           (B) the right of the person to request a
      hearing during the 30-day period under paragraph
      (2); and

           (C) the proposed action by the Secretary and
      the rights of the person with respect to such
      action, including a brief statement which sets
      forth--

                (i) the provisions of this title
           relating to levy and sale of property;

                (ii) the procedures applicable to the
           levy and sale of property under this title;

                (iii) the administrative appeals
           available to the taxpayer with respect to
           such levy and sale and the procedures
           relating to such appeals;

                (iv) the alternatives available to
           taxpayers which could prevent levy on
           property (including installment agreements
           under section 6159); and

                (v) the provisions of this title and
           procedures relating to redemption of property
           and release of liens on property.

(b)   Right to Fair Hearing.--

      (1) In general.-–If the person requests a hearing
                               - 8 -

     under subsection (a)(3)(B), such hearing shall be held
     by the Internal Revenue Service Office of Appeals.

          (2) One hearing per period.--A person shall be
     entitled to only one hearing under this section with
     respect to the taxable period to which the unpaid tax
     specified in subsection (a)(3)(A) relates.

          (3) Impartial officer.--The hearing under this
     subsection shall be conducted by an officer or employee
     who has had no prior involvement with respect to the
     unpaid tax specified in subsection (a)(3)(A) before the
     first hearing under this section or section 6320. A
     taxpayer may waive the requirement of this paragraph.
[Emphasis added.]

Section 6330(c) specifies the matters to be considered at the

hearing and in the determination by the Appeals officer.5


     5
      SEC. 6330(c) provides:

          (c) Matters Considered at Hearing.--In the case of
     any hearing conducted under this section--

          (1) Requirement of investigation.-–The appeals
     officer shall at the hearing obtain verification from
     the Secretary that the requirements of any applicable
     law or administrative procedure have been met.

          (2) Issues at hearing.--

               (A) In general.-–The person may raise at the
          hearing any relevant issue relating to the unpaid
          tax or the proposed levy, including–-

                    (i) appropriate spousal defenses;

                    (ii) challenges to the appropriateness
               of collection actions; and

                    (iii) offers of collection alternatives,
               which may include the posting of a bond, the
               substitution of other assets, an installment
               agreement, or an offer-in-compromise.

                                                   (continued...)
                               - 9 -

Section 6330 applies to collection actions initiated more than

180 days after July 22, 1998 (January 19, 1999, and thereafter).

See RRA 1998 sec. 3401(d), 112 Stat. 750.

     Section 6330(a)(1) entitles a taxpayer to only one notice

for a specific tax liability due for a taxable period.   Section

6330(a) and (b) restricts a taxpayer’s statutory right to request

a collection due process hearing before the Office of Appeals to

the 30-day period following the date of the notice.   See also

sec. 301.6330-1T(b) and (c), Temporary Proced. & Admin. Regs., 64

Fed. Reg. 3405 (Jan. 19, 1999).   On February 1, 1999, petitioner

was notified in writing of her right to request a collection due


     5
      (...continued)
               (B) Underlying liability.-–The person may
          also raise at the hearing challenges to the
          existence or amount of the underlying tax
          liability for any tax period if the person did not
          receive any statutory notice of deficiency for such
          tax liability or did not otherwise have an
          opportunity to dispute such tax liability.

          (3) Basis for the determination.-–The
     determination by an appeals officer under this
     subsection shall take into consideration–-

               (A) the verification presented under
          paragraph (1);

                (B) the issues raised under paragraph (2);
          and

               (C) whether any proposed collection action
          balances the need for the efficient collection of
          taxes with the legitimate concern of the person
          that any collection action be no more intrusive
          than necessary.
                               - 10 -

process hearing before Appeals under section 6330.   The notice

specified that petitioner had 30 days from the February 1, 1999,

notice to request a hearing.   Petitioner made no request for a

hearing within 30 days of the February 1, 1999, notice.   Because

no section 6330 hearing was requested, Appeals made no

determination pursuant to section 6330(c).

     Section 6330(d) provides for judicial review of an Appeals

determination.   Section 6330(d) provides:

     (d) Proceeding After Hearing.--

          (1) Judicial review of determination.-–The person
     may, within 30 days of a determination under this
     section, appeal such determination–-

               (A) to the Tax Court (and the Tax Court shall
          have jurisdiction to hear such matter); or

               (B) if the Tax Court does not have
          jurisdiction of the underlying tax liability, to a
          district court of the United States.

     If a court determines that the appeal was to an incorrect
     court, a person shall have 30 days after the court
     determination to file such appeal with the correct court.
     [Emphasis added.6]

The determination by Appeals is the focus of any review in this

Court under section 6330(d), and that section specifies that a


     6
      A taxpayer may file a petition with the Tax Court for
review of an Appeals’ determination where the underlying tax is
the type of tax over which the Court normally has jurisdiction.
See Moore v. Commissioner, 114 T.C. 171 (2000) (dismissing
petition for review of collection action on the ground that the
underlying trust fund taxes were not the type of tax over which
the Court normally has jurisdiction). The tax in question in
this case is income tax, over which we normally have
jurisdiction.
                              - 11 -

petition must be filed within 30 days of such a determination.

     The notice of determination provided for in section 6330 is,

from a jurisdictional perspective, the equivalent of a notice of

deficiency.   We have held that the absence of a valid notice of

deficiency is a basis for dismissal for lack of jurisdiction.

See Savage v. Commissioner, 112 T.C. 46, 48 (1999); Monge v.

Commissioner, 93 T.C. 22, 27 (1989).    This Court's jurisdiction

under section 6330(d) is dependent on the issuance of a valid

notice of determination and a timely petition for review.    It

therefore follows that the absence of an Appeals determination

under section 6330 is grounds for dismissal of a petition that

purports to be based on section 6330.    Because there was no

Appeals determination for this Court to review, there is simply

no basis for our jurisdiction under section 6330(d).    We shall

therefore dismiss this case for lack of jurisdiction.

     To reflect the foregoing,



                                 An appropriate order

                          will be entered.
