                  T.C. Memo. 2009-146



                UNITED STATES TAX COURT



          MICHAEL JOSEPH BENT, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 28702-08.             Filed June 23, 2009.



     The IRS examined P’s returns for 6 tax years and,
in July 2006, issued a Form 886A as to P’s liability
for those years. Without submitting to the IRS a
request for administrative costs and without receiving
any IRS decision as to costs, P filed a Tax Court
petition for administrative costs for those years in
March 2008 in docket No. 5622-08, under I.R.C.
sec. 7430(f)(2), with an attachment that requested
costs. In August 2008 the Court dismissed the petition
for lack of jurisdiction because no decision denying P
an award of administrative costs had been made by the
IRS. P then orally requested the IRS to consider that
petition as an application for costs, but the IRS took
no action. In November 2008 P filed another Tax Court
petition for administrative costs, alleging that his
petition in docket No. 5622-08, which had been served
on the IRS in March 2008, was a written request for
costs, and that agency non-action for 6 months there-
after constituted a constructive agency decision under
sec. 301.7430-2(c)(6), Proced. & Admin. Regs. R moved
                               - 2 -

     to dismiss for lack of jurisdiction, on the ground that
     no agency decision within the meaning of I.R.C. sec.
     7430(f)(2) had been issued.

          Held: Neither P’s March 2008 filing of his Tax
     Court petition nor his August 2008 oral request
     constituted the filing of an application for
     administrative costs under I.R.C. sec. 7430(b)(4).

          Held, further, in the absence of a written
     application for administrative costs, no constructive
     decision will be considered to have been issued under
     sec. 301.7430-2(c)(6), Proced. & Admin. Regs., as a
     result of the agency’s non-action for 6 months.

          Held, further, R’s motion to dismiss for lack of
     jurisdiction will be granted and this case will be
     dismissed for lack of jurisdiction on the ground that R
     has not issued any decision–-either actual or
     constructive–-denying P’s request for administrative
     costs that would confer jurisdiction on this Court
     under I.R.C. sec. 7430(f)(2).

          Held, further, in the alternative, if P’s
     March 2008 petition in docket No. 5622-08 is treated as
     a request for administrative costs, it was filed more
     than 90 days after the IRS’s final decision as to the
     determination of the tax, so that the application was
     untimely and recovery of costs is barred under I.R.C.
     sec. 7430(b)(4).



     Michael Joseph Bent, pro se.

     Jason M. Kuratnick, for respondent.



                         MEMORANDUM OPINION


     GUSTAFSON, Judge:   Petitioner Michael Joseph Bent seeks this

Court’s review, pursuant to section 7430(f)(2) and
                                 - 3 -

Rules 270-272,1 of an alleged denial, by the Internal Revenue

Service (IRS), of an award of administrative costs.   The case is

now before the Court on respondent’s motion to dismiss for lack

of jurisdiction on the ground that the IRS never issued a

decision denying a request by Mr. Bent for administrative costs.

Mr. Bent filed an opposition to respondent’s motion, and several

other papers that the Court is treating as supplements to his

objection.2   In those papers Mr. Bent contends that he did file a

written request with the IRS, and that the IRS, by non-action for

6 months, is deemed to have made a decision denying his request.

We will grant respondent’s motion.

                            Background

     Some of the facts alleged in respondent’s motion are

disputed, and many of Mr. Bent’s allegations are unsubstantiated.

However, we assume Mr. Bent’s allegations to be true, for

purposes of respondent’s motion, and we therefore assume (but do

not find) the following facts:

     Mr. Bent alleges that the IRS examined his tax returns for

the 6 tax years 1997, 1998, 1999, 2000, 2001, and 2003, and that


     1
      Unless otherwise indicated, all section citations refer to
the Internal Revenue Code of 1986 (26 U.S.C.), as amended. All
Rule citations refer to the Tax Court Rules of Practice and
Procedure.
     2
      Mr. Bent submitted a motion for summary judgment, but since
Rule 121(a) provides that such a motion may not be filed until
30 days after the pleadings are closed, and since respondent has
not yet filed his answer, Mr. Bent’s motion is premature.
                               - 4 -

he incurred costs in that process.     He claims that in the audit

for 1999, the IRS determined that no changes were necessary to

Mr. Bent’s tax as reported.3   He states that thereafter, on

July 14, 2006, the IRS concluded the audits for the other 5 years

by issuing a Form 886A, Explanation of Items, that likewise made

no change in the liabilities as reported for those years.4

     On March 5, 2008 (i.e., more than a year and a half after

the IRS allegedly issued the Form 886A), Mr. Bent attempted to

obtain an award of these costs by filing a petition for costs in

this Court.   A four-page attachment to Mr. Bent’s petition in

docket No. 5622-08 contained at least some of the information

required by section 301.7430-2(c)(3), Proced. & Admin. Regs. (26

C.F.R.) to be included in applications for administrative costs.

The attachment was notarized and was made “under penalty of

law”.5   For purposes of this opinion, we assume that the contents


     3
      In his objection to respondent’s motion, Mr. Bent alleges
that the audit of the other 5 tax years “followed” a “1999 audit
which determined there were no reporting nor tax changes
necessary”, so that any 1999 audit determination must have pre-
dated July 2006.
     4
      The petition cites (but does not submit) an “IRS Form 886A
dated 7/14/06”, and suggests that this form was issued in
conjunction with the conclusion of “closed, resolved audits for
T[ax] Y[ears] 1997, 1998, 2000, 2001 and 2003 [that] have
resulted in no reporting nor tax changes in any petitioner filed
personal or business returns”.
     5
      Cf. sec. 301.7430-2(c)(3)(i)(E), (ii), Proced. & Admin.
Regs. (requiring an affidavit from the taxpayer). Mr. Bent’s
invocation of the “penalty of law” was arguably in substantial
                                                   (continued...)
                                 - 5 -

of the attachment were substantially in compliance with the

requirements for an application for costs.    However, the

attachment bore the name and address of the Tax Court, in the

manner of an inside address on a business letter, and bore the

title “Petition under Rule 230-231(b) Statements”.    That case was

assigned docket No. 5622-08, and on March 18, 2008, the Clerk of

Court served the petition (with its attachment) on respondent

pursuant to Rule 21(b)(1).6

     In that prior case respondent moved to dismiss the petition

for lack of jurisdiction.     The Court granted that motion by its

order entered August 18, 2008.    The order held that Mr. Bent had

failed to show that the IRS ever issued a decision denying

administrative costs, as required by section 7430(f)(2).     The

order also observed that Mr. Bent had failed to show that he ever




     5
      (...continued)
compliance with 28 U.S.C. section 1746 (2006), which provides for
unsworn declarations “under penalty of perjury” to be used in
lieu of affidavits.
     6
      We take judicial notice of the record in docket
No. 5622-08, pursuant to Fed. R. Evid. 201. Mr. Bent’s petition
also alleges facts about his filing a petition in docket
No. 17338-07L (a collection due process case under
section 6330(d))--i.e., that it was filed August 3, 2007, and was
served on respondent on August 7, 2007. However, that
August 2007 petition makes no mention of administrative costs and
could not possibly be construed as a request for such costs.
Moreover, the August 2007 petition was filed more than 90 days
after the Form 886A was allegedly issued in July 2006. An August
2007 filing would not have complied with the deadline of
section 7430(b)(4).
                                   - 6 -

submitted to the IRS a written request for administrative costs,

as required by section 7430(b)(4).

        Interpreting his submissions in the manner most favorable to

him, we infer that on August 22, 2008, Mr. Bent asked the IRS to

treat his petition in docket No. 5622-08 as a written request for

administrative costs.7      He does not attach a copy of, nor even

allege, a written request to this effect, so we assume it was

oral.       The IRS never responded to this request.   Mr. Bent filed

his petition in this case on November 25, 2008.        Respondent moved

to dismiss this case for the same reasons that the prior case was

dismissed--i.e., that Mr. Bent failed to submit to the IRS a

written request for administrative costs, as required by

section 7430(b)(4), and that the IRS never issued a decision

denying administrative costs, as required by section 7430(f)(2)

before such a suit can be maintained.

                                Discussion

I.      This Court’s jurisdiction over a petition for
        administrative costs depends on an IRS decision denying a
        request for such costs.

     The Tax Court is a court of limited jurisdiction.       We may

exercise jurisdiction only to the extent expressly provided by

statute.       Breman v. Commissioner, 66 T.C. 61, 66 (1976).   The

statutory grant of jurisdiction for petitions for administrative



        7
      See petitioner’s second supplement to objection, filed
March 3, 2009.
                               - 7 -

costs is section 7430(f)(2), which provides that a “decision[8]

granting or denying (in whole or in part) an award for reasonable

administrative costs under subsection (a) by the Internal Revenue

Service shall be subject to the filing of a petition for review

with the Tax Court”.   (Emphasis added.)   That is, our

jurisdiction depends upon “a decision * * * by the Internal

Revenue Service” that rules on a taxpayer’s request for costs,

and upon the filing of a timely petition with this Court.   See

Salazar v. Commissioner, T.C. Memo. 2002-157.

     A.   A taxpayer may submit to the IRS a request for
          “administrative costs” incurred during agency
          consideration of the taxpayer’s liability.

     In section 7430 Congress has provided that a taxpayer may

recover from the IRS certain costs relating to administrative

proceedings in which the taxpayer substantially prevails.

Section 7430(a) provides as follows:

          SEC. 7430(a). In General.--In any administrative
     or court proceeding which is brought by or against the
     United States in connection with the determination,
     collection, or refund of any tax, interest, or penalty
     under this title, the prevailing party may be awarded a
     judgment or a settlement for--




     8
      Under section 7430(f)(2) this Court’s jurisdiction depends
on the IRS’s having issued a “decision granting or denying * * *
administrative costs”. The IRS’s decision as to costs under
section 7430(f)(2) should be distinguished from a “decision”
as to tax under section 7430(b)(4), i.e., “the final decision of
the Internal Revenue Service as to the determination of the tax”,
which starts the 90-day period within which the application for
costs must be filed.
                              - 8 -

               (1) reasonable administrative costs incurred
          in connection with such administrative proceeding
          within the Internal Revenue Service * * *.

Section 7430(b)(4) provides the means by which a taxpayer must

request administrative costs and provides a 90-day deadline by

which he must make that request:

          (4) Period for applying to IRS for administrative
     costs.--An award may be made under subsection (a) by
     the Internal Revenue Service for reasonable
     administrative costs only if the prevailing party files
     an application with the Internal Revenue Service for
     such costs before the 91st day after the date on which
     the final decision of the Internal Revenue Service as
     to the determination of the tax, interest, or penalty
     is mailed to such party.

That is, the request for administrative costs must be submitted

within 90 days of a “final decision” by the IRS regarding the

taxpayer’s tax, interest, or penalties.   The regulations define a

“final decision” as--

     the document which resolves the tax liability of the
     taxpayer with regard to all tax, additions to tax and
     penalties at issue in the administrative proceeding
     (such as a Form 870 or closing agreement), or a notice
     of assessment for that liability (such as the notice
     and demand under section 6303), whichever is earlier
     mailed, or otherwise furnished, to the taxpayer. * * *

Sec. 301.7430-2(c)(5), Proced. & Admin. Regs.   Mr. Bent seems to

contend that the Form 886A issued to him in July 2006 (which is

not in the record before us) was such a “final decision”.9    We


     9
      Mr. Bent puts forth the Form 886A as the final decision for
5 of the tax years, and says that it “followed” the agency’s
resolution of his 1999 year. Thus, the “final decision” for 1999
must have been even earlier than July 2006. See supra note 3.
                                                   (continued...)
                               - 9 -

assume that a “final decision” was rendered on Mr. Bent’s tax

liability in July 2006 and that Mr. Bent therefore had an

occasion to submit a request for administrative costs.

     B.   A taxpayer may petition this Court to review an adverse
          IRS decision--either an actual decision or a construct-
          ive decision--on a request for administrative costs.

     A taxpayer dissatisfied with the IRS’s action on a request

for administrative costs may petition this Court for relief

pursuant to section 7430(f)(2), which provides:

     A decision granting or denying (in whole or in part) an
     award for reasonable administrative costs under
     subsection (a) by the Internal Revenue Service shall be
     subject to the filing of a petition for review with the
     Tax Court * * *. If the Secretary sends by certified
     or registered mail a notice of such decision to the
     taxpayer, no proceeding may be initiated under this
     paragraph unless a petition is filed before the 91st
     day after the date of such mailing.

Thus, a decision rendered in a formal notice starts the running

of a 90-day period for filing suit.    However, if a taxpayer makes

a written request for administrative costs but the IRS simply

fails to mail any notice of a decision, then after 6 months that

agency non-action can “be considered” an adverse decision,

pursuant to the regulations.   Section 301.7430-2(c)(6), Proced. &

Admin. Regs., provides:


     9
      (...continued)
Since an agency act as late as July 2006 was too early (as we
show below), and an even earlier decision as to 1999 would
therefore be even more disadvantageous to the petitioner here,
our discussion treats the July 2006 action as the relevant “final
decision” and does not make a separate analysis for an earlier
“final decision” for 1999.
                               - 10 -

     The Internal Revenue Service is authorized, but not
     required, to notify the taxpayer of its decision to
     grant or deny (in whole or in part) an award for reas-
     onable administrative costs under section 7430 and this
     section by certified mail or registered mail. If the
     Internal Revenue Service does not respond on the merits
     to a request by the taxpayer for an award of reasonable
     administrative costs filed under paragraph (c)(1) of
     this section within 6 months after such request is
     filed, the Internal Revenue Service's failure to
     respond may be considered by the taxpayer as a decision
     of the Internal Revenue Service denying an award for
     reasonable administrative costs. [Emphasis added.]

That is, if a taxpayer files a written request “under para-

graph (c)(1)” of the regulation, then IRS non-action for 6 months

is considered an adverse decision that may be petitioned under

section 7430(f)(2) to the Tax Court.    See Salazar v.

Commissioner, supra.   On the other hand, if the taxpayer fails to

file a written request “under paragraph (c)(1)”, then IRS non-

action could not constitute a constructive decision that could be

petitioned to the Tax Court.

     C.   A constructive agency decision on a taxpayer’s request
          for administrative costs arises from agency non-action
          only after the proper filing of such a request.

     As we have already noted, an IRS “decision” conferring

jurisdiction on this Court may be either a notice sent by

certified or registered mail (which starts the running of a

90-day deadline for the taxpayer to file a petition, under

section 7430(f)(2)) or a constructive decision (under

section 301.7430-2(c)(6), Proced. & Admin. Regs.) arising from

6 months of agency non-action.   As we understand his contentions,
                              - 11 -

Mr. Bent alleges no actual denial of his request for

administrative costs but does allege that the IRS constructively

denied his request by allowing 6 months to pass without taking

action on his request.   In order for IRS non-action to be

considered a decision denying an award of costs, there must first

have been (in the words of section 301.7430-2(c)(6), Proced. &

Admin. Regs.) “a request by the taxpayer for an award of

reasonable administrative costs filed under paragraph (c)(1)”

(emphasis added) of the regulation.

II.   Mr. Bent failed to file an application for administrative
      costs, so there has been no constructive decision on such a
      request, and this Court therefore lacks jurisdiction over
      his petition.

      A.   Mr. Bent’s filing of his petition in docket No. 5622-08
           did not constitute the filing of an application for
           costs.

      Mr. Bent contends that his prior Tax Court petition that he

filed in docket No. 5622-08 itself constitutes his written

request to the IRS for costs, pursuant to section 7430(b)(4) and

section 301.7430-2(c)(6), Proced. & Admin. Regs., and that the

IRS’s failure to respond to his request within 6 months is

considered a decision to deny the award of costs, under

paragraph (c)(6) of the regulation.

      However, under paragraph (c)(6) that 6-month period begins

to run only after “a request * * * [is] filed under

paragraph (c)(1)”.   Paragraph (c)(1)) in turn calls for “a

written request to recover reasonable administrative costs in
                              - 12 -

accordance with the provisions of this section” (emphasis

added)--i.e., section 301.7430-2, Proced. & Admin. Regs.--and

paragraph (c)(2) thereof provides as follows:

          (2) Where request must be filed.--A request
     required by paragraph (c)(1) of this section must be
     filed with the Internal Revenue Service personnel who
     have jurisdiction over the tax matter underlying the
     claim for the costs * * *. However, if those persons
     are unknown to the taxpayer making the request, the
     taxpayer may send the request to the Internal Revenue
     Service office that considered the underlying matter.

This regulation obviously does not name the Clerk of the Tax

Court as a proper recipient of an application for costs, and he

could not be the IRS’s agent for receiving such applications.

     It is true that the IRS is served with a copy of all

petitions by the Clerk of the Court, pursuant to Rule 21(b)(1).

However, in Tax Court litigation the IRS is represented by

litigating attorneys from the Office of Chief Counsel, sec. 7452,

who are neither “the Internal Revenue Service personnel who have

jurisdiction over the tax matter underlying the claim for the

costs” nor “the Internal Revenue Service office that considered

the underlying matter.”   We cannot treat the IRS’s litigating

personnel as the equivalent of its administrative personnel and

ignore the specific requirements of the regulation.10


     10
      Cf. Agri Fin. Servs., Inc. v. State Tax Commn., No. 2:93-
CV-04568, 1997 WL 1047940 (W.D. Mo., Feb. 18, 1997) (filing of
complaint in court, which was “served upon the attorney
representing the State Tax Commission, a division of the
[Missouri] Department of Revenue * * * constituted a proper claim
                                                   (continued...)
                               - 13 -

     Moreover, no IRS attorney receiving the petition could have

supposed that the attachment to the petition in docket

No. 5622-08 was intended to serve as an administrative

application for costs.    The attachment did not claim to be an

application, but instead was identified as a submission to the

Tax Court under Tax Court Rules.    And whether or not Mr. Bent

understood it, the petition to which it was attached presupposed

the prior submission of an application and thus implicitly

contradicted the notion that an attachment to that petition could

somehow constitute the application on which the petition must be

based.

     A taxpayer who wants to claim administrative costs must

first file an application with the IRS and then file a petition

with the Tax Court, and he may not instead treat the lawsuit as

an indirect mechanism for filing his application with the agency.

     B.   Mr. Bent’s oral request that the IRS consider his
          petition in docket No. 5622-08 did not constitute the
          filing of an application for costs.

     Mr. Bent’s petition in docket No. 5622-08 was dismissed in

August 2008.   If thereafter Mr. Bent orally requested that his

petition be treated as an application, then that oral request did

not constitute a proper application for costs under section

7430(b)(4).    In enacting section 7430(b)(4), Congress provided


     10
      (...continued)
for refund under” State law requiring only that such a claim “be
filed with the director of revenue”).
                              - 14 -

that costs can be awarded “only if the prevailing party files an

application”.   (Emphasis added.)    This terminology requires an

application that can be “filed”--i.e., something in writing.11

An oral request cannot be “filed”.     Moreover, an oral request

made to the IRS’s litigating attorney would be misdirected, for

the reasons explained above (in part II.A).     Thus, Mr. Bent’s

oral request did not constitute an application for costs.12




     11
      Cf. Sicanoff Vegetable Oil Corp. v. United States, 149
Ct. Cl. 278, 286, 181 F. Supp. 265, 269 (1960) (the predecessor
to section 7422(a) “says that no suit may be maintained in any
court for the refund of taxes ‘* * * until a claim for refund or
credit has been duly filed with the Commissioner, according to
the provisions of law in that regard, and the regulations of the
Secretary established in pursuance thereof.’ We have no doubt
that the statute contemplates claims filed in writing. * * *
Conversations between the plaintiff’s accountant and the agent of
the Internal Revenue Service may not serve as a substitute for a
written claim for refund”).
     12
      If, contrary to our holding in part II.B, the attachment
to Mr. Bent’s prior petition did become an application in
August 2008 when he made an oral request that it be so treated,
then the 6-month period of section 301.7430-2(c)(6) did not begin
to run until that time. A deemed denial of the application would
not have arisen until February 2009--but his petition in the
instant suit was filed in November 2008. Our jurisdiction over a
given case is determined at the time the suit is filed, see
Charlotte’s Office Boutique, Inc. v. Commissioner, 425 F.3d 1203,
1208 (9th Cir. 2005), affg. 121 T.C. 89 (2003) and T.C. Memo.
2004-43; and when this suit was filed in November 2008 it would
have been premature: The 6 months had not yet run; no
constructive decision had yet arisen; and the Court therefore
lacked jurisdiction over the case.
                              - 15 -

     C.   The lack of a written application precludes the
          existence of a deemed decision denying costs, and the
          Court therefore lacks jurisdiction.

     In the absence of a request “filed” (as required by section

7430(b)(4) of the statute and section 301.7430-2(c)(1) of the

regulations), there is no event that could begin the running of

the 6-month period of paragraph (c)(6) of the regulation.

Therefore, no deemed or constructive decision denying costs ever

occurred under that subsection; and, as we have already observed,

there was no actual decision denying costs.    The grant of

jurisdiction in section 7430(f)(2) provides that a “decision

* * * shall be subject to the filing of a petition for review

with the Tax Court”.   (Emphasis added.)   In this case there is no

decision to review; and as a result, this Court lacks

jurisdiction to entertain Mr. Bent’s petition.

III. In the alternative, Mr. Bent’s petition fails to state a
     claim as to which relief can be granted.

     If we did have jurisdiction to proceed to the merits of

Mr. Bent’s petition for costs, we would have to hold that he has

failed to state a claim as to which relief could be granted.

Under section 7430(b)(4), an award can be made by the IRS “only

if the prevailing party files an application with the Internal

Revenue Service for such costs before the 91st day after the date

on which the final decision of the Internal Revenue Service as to

the determination of the tax, interest, or penalty is mailed to

such party.”   If (as Mr. Bent alleges) by a Form 886A issued in
                                 - 16 -

July 2006 the IRS did make a “final decision” as to taxes,

interest, or penalties that gave rise to the administrative costs

he now seeks, then Mr. Bent’s written request for those costs was

due 90 days after that July 2006 determination, i.e., in

October 2006--not in March 2008 when his prior Tax Court petition

was in fact filed and served.     Mr. Bent’s petition in this case

and his papers filed in opposition to respondent’s motion do

mention additional agency actions,13 but none of them was recent

enough to render timely a March 2008 request for administrative

costs.

     Mr. Bent did not file with the IRS any written request for

administrative costs other than his Tax Court petition in docket

No. 5622-08.     Considered as a request for costs, that petition

was untimely under section 7430(b)(4)); and for that reason at

least14 his application for fees would have to be denied.


     13
      For example, Mr. Bent alleges in his supplement filed
March 27, 2009: that “an examination report [for unidentified
years was] closed 10/8/02”; a “6/9/03 determination by the 2002
examination that no taxes were owed”; that “the 1998 return had
been examined by Holtsville and closed with no changes as entered
on my Transcript 10/08/02”; that “Ogden Tax Technician Brown’s
Form 4549 and 886A [was] dated 11/13/03”; that a “Notice of
Deficiency for 1998 [was issued] on 3/31/04”; and that “T[ax]
Y[ear] 2001 was accepted as filed 3/19/04 and 3/15/05”. All
these alleged acts took place more than 90 days before Mr. Bent’s
petition in docket No. 5622-08 was served in March 2008. Neither
his petition nor his motion papers allege any agency event as
having occurred in the period beginning December 18, 2007, and
ending March 18, 2008.
     14
          We cannot tell whether Mr. Bent actually incurred any
                                                       (continued...)
                              - 17 -

                            Conclusion

     Because there is no IRS decision that denies a request for

the administrative costs that Mr. Bent’s petition seeks--neither

an actual decision, nor a constructive decision deemed to have

been made under section 301.7430-2(c)(6)--this Court lacks

jurisdiction under section 7430(f)(2) over the petition, and it

must be dismissed.   Therefore, respondent’s motion to dismiss for

lack of jurisdiction will be granted.

     To reflect the foregoing,


                                      An appropriate order of

                                 dismissal for lack of

                                 jurisdiction will be entered.




     14
      (...continued)
“reasonable administrative costs” within the meaning of
section 7430(c)(2), which defines administrative costs to include
costs incurred on or after the earliest of the following:
(1) the date on which the taxpayer receives from respondent’s
Appeals Office a notice of decision, (2) the date of respondent’s
notice of deficiency, or (3) the date respondent mails a first
letter of proposed deficiency giving the taxpayer a right to
protest to respondent’s Appeals Office (commonly referred to as a
30-day letter). See Kwestel v. Commissioner, T.C. Memo.
2007-135. On the modest record now before us, we cannot tell
whether Mr. Bent ever received any such notices.
