                        T.C. Memo. 2011-6



                      UNITED STATES TAX COURT



         RICHARD E. AND MARION B. SNYDER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21267-08.              Filed January 10, 2011.



     Richard E. and Marion B. Snyder, pro sese.

     Harry J. Negro, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   The instant case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction as to

abatement of interest and collection issues and respondent’s

motion for partial summary judgment pursuant to Rule 1211 as to


     1
      Unless otherwise indicated, section references are to the
                                                   (continued...)
                               - 2 -

petitioner wife’s claim for relief from joint and several

liability.2   The issues involve petitioners’ 1988 and 1989 tax

years, and we must decide:   (1) Whether we have jurisdiction to

decide petitioners’ claim for abatement of interest; (2) whether

we have jurisdiction to decide petitioners’ claim for review of

collection action; and (3) whether res judicata bars petitioner

wife from raising a claim for relief from joint and several

liability in this Court.

                             Background

     The facts set forth below3 are based upon examination of the

pleadings, moving papers, responses, and attachments.

     Petitioners are husband and wife (hereinafter referred to

individually as Mr. Snyder and Mrs. Snyder) who resided in

Delaware at the time of filing the petition in the instant case.

     Petitioners filed their first petition in this Court over 10

years ago, on December 23, 1997, at docket No. 24568-97 (prior

Tax Court case).   At that time petitioners resided in Maryland.


     1
      (...continued)
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure.
     2
      Petitioners have also filed a motion for summary judgment,
which, on the basis of our conclusion below, we will deny in the
order addressing the instant motions.
     3
      We set forth only factual and procedural history relevant
to the issues addressed herein. It would be impractical to
attempt to summarize the entire history of petitioners’
bankruptcy case and various adversary proceedings, given their
extent and complexity.
                                 - 3 -

In their petition in the prior Tax Court case, petitioners

disputed respondent’s notice of deficiency for tax years 1988 and

1989.    Mrs. Snyder made no request for relief from joint and

several liability at that time.     It was not until December 16,

1998, that Mrs. Snyder raised a claim for relief under section

6015, when she filed with respondent’s office a Form 8857,

Request for Innocent Spouse Relief (And Separation of Liability

and Equitable Relief).     It does not appear from the record that

petitioners ever received any determination from respondent on

Mrs. Snyder’s claim for innocent spouse relief.

        The proceedings in the prior Tax Court case were stayed when

petitioners filed a bankruptcy petition in the United States

Bankruptcy Court in the District of Maryland (the bankruptcy

court) on March 15, 1999.     On July 21, 1999, petitioners filed an

adversary proceeding against respondent, requesting that the

bankruptcy court determine their tax liabilities for their 1988

and 1989 tax years.     Among the issues that petitioners brought

before the bankruptcy court was Mrs. Snyder’s claim for relief

from joint and several liability.     On July 20, 2001, the

bankruptcy court entered an Order on Remaining Issues (order on

remaining issues) in which, inter alia, it held that Mrs. Snyder

had not established an adequate basis for invoking innocent

spouse relief.     On April 18, 2003, the bankruptcy court entered

an Order Determining Tax Liability (order determining tax
                                   - 4 -

liability).    Snyder v. United States, 91 AFTR 2d 2003-2156

(Bankr. D. Md. 2003).    Petitioners subsequently appealed the

bankruptcy court’s order determining tax liability, and, on

September 30, 2005, the U.S. District Court for the District of

Maryland (the District Court) reversed a portion of the

bankruptcy court’s order determining tax liability and remanded

the case for further consideration.        Snyder v. IRS, 337 Bankr.

542 (D. Md. 2005).

     On October 30, 2006, the bankruptcy court issued an Order on

Remand (order on remand).    Snyder v. United States, Adversary No.

99-5583 (Bankr. D. Md. Oct. 30, 2006).       The order on remand ruled

that petitioners’ unpaid tax liability for their 1988 tax year

was $60,214.94 and that they were liable for $3,010 in penalties,

plus interest, and that their unpaid tax liability for their 1989

tax year was $46,795 and that they were liable for $9,359 in

penalties, plus interest.    Id.     After the bankruptcy court denied

their motion to reconsider the order on remand, petitioners filed

another appeal with the District Court on January 16, 2007.4

With their appeal, petitioners also filed a Designation of Items

and Statement of Issues, noting that issues raised on appeal

included all those remanded by the District Court in its



     4
      At   the time of this appeal, petitioners had already filed
at least   13 bankruptcy appeals in the U.S. District Court for the
District   of Maryland. Snyder v. IRS, No. 1:07-CV-00255-BEL (D.
Md. Mar.   8, 2007).
                                 - 5 -

September 30, 2005, opinion, as well as Mrs. Snyder’s claim for

relief under section 6015(f).5    The District Court issued an

unpublished opinion on March 8, 2007, affirming the bankruptcy

court’s order on remand.    Snyder v. IRS, No. 1:07-CV-00255 (D.

Md. Mar. 8, 2007).    Petitioners subsequently appealed to the U.S.

Court of Appeals for the Fourth Circuit (the Court of Appeals),

which affirmed the District Court in an unpublished opinion on

September 18, 2007.    Snyder v. IRS, 241 Fed. Appx. 984 (4th Cir.

2007).

     At the same time petitioners were pursuing the above appeals

in the District Court, they were disputing the bankruptcy court’s

orders in this Court in the prior Tax Court case.    At a hearing

in the prior Tax Court case on January 11, 2006, to report on the

ongoing bankruptcy court proceedings, Mr. Snyder indicated that

he believed issues not resolved in petitioners’ favor by the

bankruptcy court could still be considered by the Tax Court.

Specifically, Mr. Snyder stated that he believed this Court could

hear Mrs. Snyder’s claim for relief under section 6015.    After

the bankruptcy court issued its order on remand, this Court

issued an order, on November 17, 2006, that the parties submit a



     5
      It is unclear from the record whether the Jan. 16, 2007,
appeal was the first time petitioners had appealed the bankruptcy
court’s order on remaining issues, entered July 20, 2001, in
which the bankruptcy court had ruled against Mrs. Snyder’s sec.
6015 claim, or whether that issue had already been raised in one
of petitioners’ other appeals to the District Court.
                               - 6 -

proposed decision in the prior Tax Court case (prior Tax Court

case order).   In the prior Tax Court case order, we noted Mrs.

Snyder’s claim for relief under section 6015 and stated that

there was nothing for this Court to decide regarding that claim

because the issue “had been raised in the bankruptcy court but,

apparently, not decided in her favor.”

     On May 11, 2007, we issued an order and decision in the

prior Tax Court case, deciding petitioners’ tax liabilities and

penalties consistent with the bankruptcy court’s order on remand.

After we denied their motion for reconsideration, petitioners

appealed, and, on June 3, 2008, the Court of Appeals in an

unpublished opinion affirmed this Court’s order and decision in

the prior Tax Court case.   Snyder v. IRS, 280 Fed. Appx. 260 (4th

Cir. 2008).

     On August 28, 2008, petitioners filed their petition with

this Court in the instant case, seeking:   (1) An abatement of

interest; (2) relief from joint and several liability pursuant to

section 6015 for Mrs. Snyder; and (3) a review of respondent’s

determination concerning collection action.   Petitioners concede

that they have not received a final determination regarding their

request for abatement, and respondent contends that no such

determination was issued.   Likewise, petitioners admit that they

never received a Notice of Determination Concerning Collection
                                - 7 -

Action, and respondent contends that no such notice was mailed to

petitioners.

                              Discussion

I.   Abatement of Interest

     The Tax Court is a court of limited jurisdiction, and we may

exercise jurisdiction only to the extent authorized by Congress.

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).   We lack

jurisdiction pursuant to section 6404(h) unless and until the

Secretary has mailed the “final determination not to abate such

interest.”   Sec. 6404(h)(1); Rule 280; Williams v. Commissioner,

131 T.C. 54, 57 (2008); Bourekis v. Commissioner, 110 T.C. 20, 27

(1998).   Like a notice of deficiency under section 6213(a), a

notice of final determination not to abate interest under section

6404(h) is a prerequisite to the Court’s jurisdiction and serves

as a taxpayer’s “ticket” to the Tax Court.   Bourekis v.

Commissioner, supra at 26.

     In the instant case, petitioners acknowledge that they have

not received from respondent a notice of final determination not

to abate interest, but they contend that respondent’s silence in

reply to their requests is tantamount to a denial and confers

jurisdiction on this Court.

     We have consistently held that the Commissioner’s failure to

respond to a taxpayer’s request for abatement of interest within
                                 - 8 -

a reasonable time does not constitute a final determination under

section 6404(h).    See Gilmer v. Commissioner, T.C. Memo.

2009-296; Ward v. Commissioner, T.C. Memo. 2007-374; Cho v.

Commissioner, T.C. Memo. 1998-363.

      Accordingly, we hold that this Court lacks jurisdiction to

consider petitioners’ request for an abatement of interest, and

we shall grant respondent’s motion to dismiss for lack of

jurisdiction and to strike as to petitioners’ claim for abatement

of interest.

II.   Collection Notice

      In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide specified protections for

taxpayers in tax collection matters.     Sections 6320 and 6330

generally provide that the Commissioner cannot proceed with the

collection of taxes by way of a lien or 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, judicial review of the administrative

determination.     Section 6330(d) provides for judicial review of

the administrative determination in the Tax Court.     To obtain

judicial review, the taxpayer must file a petition within 30 days
                                - 9 -

of such determination.   Sec. 6330(d)(1); Offiler v. Commissioner,

114 T.C. 492, 498 (2000).

     From a jurisdictional perspective, the Appeals Office

determination provided for in section 6330 is the equivalent of a

notice of deficiency.    Offiler v. Commissioner, supra at 498.

The Tax Court’s jurisdiction depends upon the issuance of a valid

notice of determination and the filing of a timely petition for

review.   Rule 330(b); Sarrell v. Commissioner, 117 T.C. 122, 125

(2001); Offiler v. Commissioner, supra at 498.

     In the instant case, petitioners admit that they have not

received a notice of determination.     In the absence of a

determination from respondent’s Appeals Office, there is no basis

for this Court’s jurisdiction under section 6330(d).

Accordingly, we shall grant respondent’s motion to dismiss for

lack of jurisdiction and to strike as to petitioners’ claim for

review of collection action.

III. Relief From Joint and Several Liability

     Mrs. Snyder requests relief from joint and several liability

pursuant to section 6015(f).   Respondent contends that summary

judgment is proper as to Mrs. Snyder’s section 6015 claim because

of res judicata on the basis of the bankruptcy court’s prior

decision in petitioners’ adversary proceeding.
                                - 10 -

     Rule 121(a) allows a party to move “for a summary

adjudication in the moving party’s favor upon all or any part of

the legal issues in controversy.”     Rule 121(b) directs that a

decision on such a motion shall be rendered “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law.”     The moving

party bears the burden of demonstrating that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law.     Sundstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).

Facts are viewed in a light most favorable to the nonmoving

party.    Id.   However, where a motion for summary judgment has

been properly made and supported, the opposing party may not rest

upon mere allegations or denials contained in that party’s

pleadings but must by affidavits or otherwise set forth specific

facts showing that there is a genuine issue for trial.     Rule

121(d).

     Under the doctrine of res judicata, when a court of

competent jurisdiction enters a final judgment on the merits of a

cause of action, the parties to the action are bound by that

decision as to all matters that were or could have been litigated

and decided in that proceeding.     Commissioner v. Sunnen, 333 U.S.
                               - 11 -

591, 597 (1948); see also Gustafson v. Commissioner, 97 T.C. 85,

91 (1991).    The doctrine “serves to promote judicial economy and

the repose of disputes” by precluding repetitious lawsuits.

Gustafson v. Commissioner, supra at 91.    Because Federal income

taxes are determined annually, each year is a separate cause of

action, and res judicata is applied to bar subsequent proceedings

involving the same tax year.    Commissioner v. Sunnen, supra at

597-598; Calcutt v. Commissioner, 91 T.C. 14, 21 (1988).

     Under common law principles of res judicata, a taxpayer who

was a party to a prior proceeding for the same tax year would be

barred from seeking relief from joint and several liability

regardless of whether the claim had been raised in the prior

proceeding.   Vetrano v. Commissioner, 116 T.C. 272, 280 (2001).

However, section 6015(g)(2) provides an exception to res judicata

where relief from joint and several liability was not an issue in

the prior proceeding, unless the court determines that the

taxpayer seeking such relief participated meaningfully in that

prior proceeding.6   Consequently, res judicata will bar a


     6
      Sec. 6015(g)(2) provides:

     Res judicata.--In the case of any election under subsection
     (b) or (c) or of any request for equitable relief under
     subsection (f), if a decision of a court in any prior
     proceeding for the same taxable year has become final, such
     decision shall be conclusive except with respect to the
     qualification of the individual for relief which was not an
     issue in such proceeding. The exception contained in the
     preceding sentence shall not apply if the court determines
                                                   (continued...)
                              - 12 -

taxpayer from requesting relief from joint and several liability

under section 6015(b), (c), or (f) only if:   (1) Such relief was

an issue in the prior proceeding; or (2) the Court decides that

the taxpayer participated meaningfully in the prior proceeding

and could have raised relief under section 6015.   See Deihl v.

Commissioner, 134 T.C. 156, 162 (2010); Vetrano v. Commissioner,

supra at 278; sec. 1.6015-1(e), Income Tax Regs.

     There is no question that Mrs. Snyder was a party to prior

litigation before the bankruptcy court regarding her tax

liabilities for the years in issue or that a valid final judgment

on the merits was entered in the bankruptcy court case.

Consequently, the only issues we need consider are whether Mrs.

Snyder’s claim for relief under section 6015 was an issue in the

bankruptcy court case or, in the alternative, whether she

participated meaningfully in that proceeding and could have

raised such a claim.   We first consider the question of whether

relief from joint and several liability was an issue in the prior

proceeding.

     We have held that relief from joint and several liability is

an issue in a prior proceeding only when it is raised in the

pleadings for the tax year in question.   Deihl v. Commissioner,



     6
      (...continued)
     that the individual participated meaningfully in such prior
     proceeding.
                               - 13 -

supra at 167.    The bankruptcy court’s order on remaining issues

makes it clear that Mrs. Snyder’s section 6015 claim was raised

as an issue in the bankruptcy court case pleadings.      The order on

remaining issues labels the section 6015 claim “Issue No. 19”,

and it states that the bankruptcy court ruled that petitioners

“had not established an adequate basis for invoking the innocent

spouse doctrine.”    Mrs. Snyder now attempts to attack the

reasoning underlying the bankruptcy court’s order on remaining

issues.   However, it is not our place to review the decisions of

the bankruptcy court.    Petitioners had the opportunity to, and

did, appeal the bankruptcy court’s orders to the District Court.

Indeed, petitioners filed at least 13 separate appeals from the

bankruptcy court in the District Court.      Petitioners also

appealed the District Court’s decision to the Court of Appeals.

Petitioners have been given the opportunity to fully litigate

their tax liability, including Mrs. Snyder’s claim for innocent

spouse relief.    Because Mrs. Snyder’s section 6015 claim was an

issue in the bankruptcy court case and because a final judgment

has been entered in that case, we conclude that res judicata

prohibits Mrs. Snyder from again raising section 6015 relief

before this Court.    See sec. 6015(g)(2).

     We need not consider whether Mrs. Snyder actively

participated in the Bankruptcy Court case since we conclude that
                             - 14 -

section 6015 relief was an issue in that litigation.   See sec.

6015(g)(2).

     Accordingly, we shall grant respondent’s motion for partial

summary judgment on Mrs. Snyder’s claim for section 6015 relief.

     To reflect the foregoing,



                                        An appropriate order and

                                   decision will be entered.
