                        T.C. Memo. 2003-167



                      UNITED STATES TAX COURT



                  THOMAS HERRICK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11330-01L.               Filed June 9, 2003.



     Thomas Herrick, pro se.

     Karen Lynne Baker and Louise R. Forbes, for respondent.



                        MEMORANDUM OPINION

     ARMEN, Special Trial Judge:   This matter is before the Court

on respondent’s Motion To Dismiss For Lack Of Jurisdiction, as

supplemented.   Respondent contends that the Court lacks

jurisdiction over the petition on the ground that respondent did

not issue a notice of determination to petitioner pursuant to
                               - 2 -

sections 6320 or 6330.1

     As explained in detail below, we shall dismiss this case for

lack of jurisdiction on the ground that petitioner failed to make

a timely request for an administrative hearing and, therefore,

respondent was not obliged to (and did not) issue a notice of

determination to petitioner.

Background

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

following:

     On October 13, 2000, respondent issued to petitioner (by

certified mail) a Final Notice Of Intent To Levy And Notice Of

Your Right To A Hearing (final notice of intent to levy)

concerning petitioner’s unpaid income tax liabilities for the

years 1993, 1994, 1995, and 1996.   There is no dispute that the

final notice of intent to levy was mailed to petitioner at his

last known address.   Sec. 6330(a)(2)(C).   Petitioner actually

received the final notice of intent to levy on October 14, 2000.

The final notice of intent to levy stated in pertinent part: “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”.

     On November 10, 2000, petitioner attempted to contact


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

Revenue Officer Boyd Chivers, the individual identified as the

“Person to Contact” on the final notice of intent to levy, for

the purpose of requesting a 30-day extension of time to file a

request for an Appeals Office hearing.    Federal Government

offices were closed on November 10, 2000, in observance of the

Veterans Day holiday.    Consequently, petitioner left a voice mail

message for Revenue Officer Chivers requesting a 30-day

extension.   On November 13, 2000, Revenue Officer Chivers called

petitioner and informed him that he would be granted a 30-day

extension of time to respond to the final notice of intent to

levy.

     On or about December 14, 2000, respondent’s Appeals Office

received from petitioner a Form 12153, Request For A Collection

Due Process Hearing.    Petitioner’s request was dated December 12,

2000.   The Appeals Office initially informed petitioner that he

would be afforded a “collection due process” hearing under

section 6330.   However, the Appeals Office subsequently concluded

that petitioner had failed to file his request for a hearing

within the time prescribed in section 6330, and, therefore, the

Appeals Office granted petitioner an “equivalent hearing”.      See

sec. 301.6330-1(i), Proced. & Admin. Regs.

     On August 8, 2001, the Appeals Office issued a “decision

letter” to petitioner stating that respondent would proceed with

collection by levy.    Respondent’s decision letter stated in
                               - 4 -

pertinent part:

     Your due process hearing request was not filed within
     the time prescribed under Section 6320 and/or 6330.
     However, you received a hearing equivalent to [a] due
     process hearing except that there is no right to
     dispute a decision by the Appeals Office in court under
     IRC §§ 6320 and/or 6330.

     On September 10, 2001, despite the above-quoted statement in

respondent’s decision letter, petitioner filed with the Court a

Petition For Levy Action Under Code Section 6330(d).   In response

to the petition, respondent filed a Motion To Dismiss For Lack Of

Jurisdiction.   Respondent asserted that the petition should be

dismissed on the ground that the decision letter that respondent

issued to petitioner does not constitute a notice of

determination sufficient to invoke the Court’s jurisdiction

pursuant to section 6330(d).   Petitioner filed an objection to

respondent’s motion to dismiss in which he asserted that his

request for an Appeals Office hearing was timely inasmuch as it

was made within the 30-day extension of time granted by Revenue

Officer Chivers.   Respondent filed a Response to petitioner’s

Objection in which he argued that section 6330 does not authorize

respondent to extend the 30-day period within which a taxpayer

may request an Appeals Office hearing.   Therefore, respondent

asserted that Appeals Officer Chiver’s statement to petitioner

that he would be granted an extension was ineffective to render

timely petitioner’s request for an Appeals Office hearing.

     Pursuant to prior notice, this matter was called for hearing
                              - 5 -

at the Court’s motions session in Washington, D.C.   There was no

appearance by or on behalf of petitioner at the hearing, nor did

petitioner file a written statement with the Court pursuant to

Rule 50(c), the provisions of which were explained by the Court

in its Order calendaring respondent’s motion for hearing.

Counsel for respondent appeared at the hearing and offered

argument in support of respondent’s motion to dismiss.

     Following the hearing, respondent filed a Supplement, a

Second Supplement, and a Third Supplement to his motion to

dismiss.

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, then the Secretary is authorized

to collect such tax by levy upon the person’s property.    Section

6331(d) provides that, at least 30 days prior to enforcing

collection by way of a levy on the person's property, the

Secretary is obliged to provide the person with a final notice of

intent to levy, including notice of the administrative appeals

available to the person.

     Section 6330(a) provides in pertinent part that the

Secretary shall notify a person in writing of his or her right to

an Appeals Office hearing regarding a proposed levy by mailing

such notice by certified or registered mail to such person at his
                                - 6 -

or her last known address.

     Section 6330(a)(2) provides that the prescribed notice shall

be provided 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.   Further, section 6330(a)(3)(B) provides that the

prescribed notice shall explain that the person has the right to

request an Appeals Office hearing during the 30-day period under

paragraph (2).

     Where the Appeals Office issues a notice of determination to

the taxpayer following an administrative hearing regarding a levy

action, section 6330(d)(1) provides that the taxpayer will have

30 days following the issuance of such determination letter to

file a petition for review with the Tax Court or Federal District

Court, as may be appropriate.   See Offiler v. Commissioner, 114

T.C. 492, 498 (2000).   We have held that the Court’s jurisdiction

under section 6330 depends on the issuance of a valid

determination letter and the filing of a timely petition for

review.   See Sarrell v. Commissioner, 117 T.C. 122, 125 (2001);

Offiler v. Commissioner, supra at 498.

     On October 13, 2000, respondent mailed to petitioner a final

notice of intent to levy with regard to his unpaid taxes for

1993, 1994, 1995, and 1996.   Petitioner received the final notice

of intent to levy on October 14, 2000.   Consequently, the 30-day

period within which petitioner was required to file with
                                 - 7 -

respondent a request for an Appeals Office hearing expired on

Monday, November 13, 2000.   See sec. 7503 (dealing with time for

performance of acts where last day falls on Saturday, Sunday, or

legal holiday); see also sec. 301.6330-1(c)(2), Q&A-C3 and Q&A-

C4, Proced. & Admin. Regs.; cf. sec. 301.6320-1(c)(2), Q&A-C3 and

Q&A-C4, Proced. & Admin. Regs.

     Petitioner contends that the 30-day period did not expire on

November 13, 2000, because he was granted an extension by Revenue

Officer Chivers.   Respondent concedes that on November 13, 2000,

Revenue Officer Chivers informed petitioner that he was granted a

30-day extension of time to file a request for an Appeals Office

hearing.   Petitioner subsequently filed his request for an

Appeals Office hearing with respondent on December 14, 2000.

     In Kennedy v. Commissioner, 116 T.C. 255, 262 (2001), we

held that the Commissioner is not authorized to waive the time

restrictions imposed in section 6330.    Consistent with Kennedy v.

Commissioner, supra, Revenue Officer Chivers was not authorized

to extend the period within which petitioner was authorized to

file a request for an Appeals Office hearing.   It follows that

petitioner’s request for an Appeals Office hearing, filed with

respondent on December 14, 2000, was not timely.   See Schake v.

Commissioner, T.C. Memo. 2002-262 (taxpayer’s allegation that he

was given a grace period by Court personnel to file collection

review petition would not serve to extend statutory period for
                               - 8 -

filing petition); Grama v. Commissioner, T.C. Memo. 1985-608

(“even if the Commissioner himself had given petitioners a

written agreement purporting to extend the time within which to

file a petition, he has no authority to do so”).

     Under the circumstances, the Appeals Office was not obliged

to conduct an administrative hearing as contemplated under

section 6330(b).   In lieu of an Appeals Office hearing under

section 6330(b), the Appeals Office granted petitioner a so-

called equivalent hearing.   Thereafter, the Appeals Office issued

a decision letter to petitioner stating that respondent would

proceed with collection.   The decision letter does not constitute

a notice of determination under section 6330(d), and it does not

provide a basis for petitioner to invoke the Court’s

jurisdiction.   See Kennedy v. Commissioner, supra at 263; see

also Moorhous v. Commissioner, 116 T.C. 263, 270 (2001); cf.

Craig v. Commissioner, 119 T.C. 252, 258-259 (2002).

     Consistent with the preceding discussion, we hold that the

petition in this case was not filed in response to a notice of

determination sufficient to confer jurisdiction on the Court

under section 6330.   Accordingly, we shall grant respondent’s

motion to dismiss, as supplemented.
                            - 9 -

To reflect the foregoing,



                                    An appropriate Order Of

                            Dismissal For Lack Of Jurisdiction

                            will be entered.
