                       T.C. Memo. 2005-25


                     UNITED STATES TAX COURT



             RICHARD AND MABEL KELBY, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13268-03L.            Filed February 16, 2005.

          P appealed a sec. 6330,1 I.R.C., determination
     from R’s Appeals Office. R filed a motion for remand
     to Appeals and a motion for continuance of trial. The
     Court granted both of R’s motions and retained
     jurisdiction over the case. P objected to the
     retention of jurisdiction by the Court and requested
     that the Notice of Determination be vacated.

          Held: The Court may retain jurisdiction over the
     case while on remand.

          Held, further, we shall not invalidate the Notice
     of Determination.


     William E. Taggart, Jr., for petitioners.

     Rebecca Duewer-Grenville and Paul R. Zamolo, for respondent.


     1
        All section references are to the Internal Revenue Code
in effect for the years in issue.
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                          MEMORANDUM OPINION

     VASQUEZ, Judge:     The controversy before us arises out of

petitioners’ opposition to respondent’s motion to remand the case

to the Appeals Office.

Background

     On July 30, 2002, respondent issued a Notice of Federal Tax

Lien filing to petitioners.    The lien covered unpaid income tax

for the taxable years 1989, 1993, 1995, 1996, and 1999.        On

September 9, 2002, petitioners filed a Form 12153, Request for a

Collection Due Process Hearing, in which they indicated that they

did not believe they owed all of the assessed tax liabilities and

they wanted to file an Offer in Compromise.      A Notice of

Determination was sent to petitioners by the Appeals Office which

sustained the lien.    On August 11, 2003, petitioners filed a

petition to the Tax Court.

     On April 30, 2004, respondent moved that the case be

remanded to the Appeals Office to consider “Petitioners’ Offer in

Compromise and allegations that * * * [petitioners] do not owe a

portion of the assessed tax liabilities.”      Respondent

concurrently moved for continuance of trial, removal of the case

from the scheduled trial session, and restoration of the case to

the general trial docket.

     On May 5, 2004, the Court granted respondent’s motion for

continuance and motion for remand to the Appeals Office.
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Furthermore, jurisdiction was retained by this Division of the

Court.

     In numerous subsequent pleadings, petitioners objected to

the retention of jurisdiction by the Court and requested that the

Notice of Determination be vacated.      Petitioners, however, did

not object to remanding the case to the Appeals Office.

Discussion

     The power of this Court to remand a case to the Appeals

Office is well established.    For example, if a taxpayer is not

afforded a proper opportunity for a hearing under section 6330,

the Court can remand the case to the Appeals Office to hold a

hearing if we “believe that it is either necessary or

productive”.     Lunsford v. Commissioner, 117 T.C. 183, 189 (2001)

(Lunsford II).

     Petitioner, inter alia, argues that the Court cannot retain

jurisdiction over the case upon remanding the case to the Appeals

Office.   We have jurisdiction to determine whether we have

jurisdiction at any time, either before or after a final decision

is entered.    Brannon’s of Shawnee, Inc. v. Commissioner, 71 T.C.

108, 111-112 (1978).    The jurisdiction of this Court under

“section 6330(d)(1)(A) is established when there is a written

notice that embodies a determination to proceed with the

collection of the taxes in issue, and a timely filed petition.”

Lunsford v. Commissioner, 117 T.C. 159, 164 (2001) (Lunsford I).
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The Court may retain jurisdiction over the case upon remand to

the Appeals Office.

     The Court’s retention of jurisdiction upon remand does not

adversely affect the ability of the taxpayer to receive a fair

section 6330 hearing.   The Court may include instructions and

explain the purpose of a remand to the Appeals Office.    See,

e.g., Keene v. Commissioner, 121 T.C. 8, 19 (2003); Cooley v.

Commissioner, T.C. Memo. 2004-49.    Upon remand, the Appeals

Office may further consider the taxpayer’s arguments.     See sec.

6330(d)(2); Lunsford II, supra at 189.

     Petitioner also argues that the Notice of Determination

should be vacated.    We interpret petitioners’ argument that the

Notice should be vacated as a request to invalidate the Notice.

Whether petitioner had:

     an appropriate hearing opportunity, or whether the
     hearing was conducted properly, or whether the hearing
     was fair, or whether it was held by an impartial
     Appeals Officer, or whether any of the other
     nonjurisdictional provisions of section 6330 were
     properly followed, will all be factors that we must
     take into consideration under section 6330 in deciding
     such cases. But none of these factors should preclude
     us from exercising our jurisdiction under section
     6330(d), in order to resolve the underlying dispute in
     a fair and expeditious manner.

Lunsford I, supra at 164.    In this case the Notice of

Determination embodies a determination to proceed with the

collection of the taxes in issue, and the petition was timely.

Accordingly, we shall not invalidate the Notice of Determination.
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     In reaching our holding herein, we have considered all

arguments made, and to the extent not mentioned above, we

conclude them to be moot, irrelevant, or without merit.

     To reflect the foregoing,

                                              An appropriate order

                                         will be issued.
