                        T.C. Memo. 2007-176



                     UNITED STATES TAX COURT



                   JAMES GROVER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23598-06L.             Filed July 3, 2007.



     James Grover, pro se.

     John R. Mikalchus, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   This case is before us on respondent’s

motion to dismiss for lack of jurisdiction.    As discussed below,

we must grant respondent’s motion.
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                            Background

     On November 17, 2006, petitioner filed an imperfect

petition, along with a motion to restrain assessment or

collection, seeking to enjoin the Internal Revenue Service (IRS)

from levying upon petitioner’s property.1   When he filed his

petition, petitioner resided in Rhode Island.

     Pursuant to the Court’s order dated November 17, 2006, on

December 1, 2006, petitioner filed an amended petition.    In his

amended petition, petitioner alleged that on October 9, 2006, the

IRS had issued a notice that it was proceeding with a levy with

respect to his 2002 income tax; a copy of the notice accompanied

the amended petition.   By way of assignment of error, the amended

petition alleged that petitioner had never received any final

notice of intent to levy and notice of his right to a hearing, as

required under sections 6330 and 6331, and had never received any

other request or demand for payment from respondent.2

     Respondent filed an objection to petitioner’s motion to

restrain assessment or collection and concurrently moved to

dismiss this case for lack of jurisdiction.   As grounds for his

motion, respondent stated that no notice of determination under

section 6320 or 6330 was sent to petitioner and that respondent


     1
       The envelope containing the imperfect petition bears a
postmark of Nov. 16, 2006.
     2
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
                                 - 3 -

had made no other determination with respect to taxable year 2002

that would confer jurisdiction on this Court.

     In his objection to respondent’s motion to dismiss for lack

of jurisdiction, petitioner agrees that no notice of

determination was issued, laying the blame on respondent’s

failure to provide petitioner the opportunity for a hearing under

section 6330.   Asserting that he should not be “left at the mercy

of the Respondent”, petitioner urges this Court to “intervene and

enjoin the erroneous and premature levy action taken by the

Respondent”.

     In his response to petitioner’s objection to respondent’s

motion to dismiss for lack of jurisdiction, respondent contends

that a final notice of intent to levy and notice of the right to

a hearing was mailed to petitioner’s last known address on August

16, 2006.3

                            Discussion

     Section 6330 provides for notice and opportunity for a

hearing before the IRS may levy upon the property of any person.

Upon request, the person is entitled to an administrative hearing

before the IRS Appeals Office.    Sec. 6330(b)(1).   If dissatisfied



     3
       By order dated April 27, 2007, respondent’s motion to
dismiss for lack of jurisdiction was set for hearing at the
Court’s trial session scheduled to commence Sept. 17, 2007, in
Hartford, Conn. We conclude that because respondent’s motion may
be decided on the basis of the undisputed facts in the record, no
hearing is necessary.
                                 - 4 -

with the Appeals Office determination, the person may seek

judicial review in this Court within 30 days of the

determination.   Sec. 6330(d).   Generally, any proposed levy

action is suspended for the pendency of the hearing and any

judicial appeals therein.   Sec. 6330(e)(1).

     Our jurisdiction in this action for injunctive relief

arises, if at all, under section 6330(e)(1), which permits

proceedings in the “proper court”, including the Tax Court, to

enjoin the “beginning of a levy or proceeding” during the period

the levy action is suspended.    With respect to such proceedings

brought in the Tax Court, however, the Court has no jurisdiction

to enjoin a levy unless a timely appeal has been filed under

section 6330(d)(1) and then only in respect of the unpaid tax or

proposed levy to which the determination being appealed relates.

Sec. 6330(e)(1).   Hence, our jurisdiction under section

6330(e)(1) to enjoin a levy depends on both a section 6330

determination and an appeal to this Court within 30 days of that

determination.   Sec. 6330(d)(1), (e)(1); Boyd v. Commissioner,

124 T.C. 296, 303 (2005), affd. 451 F.3d 8 (1st Cir. 2006).

     The parties agree that respondent issued no notice of

determination.   Petitioner does not contend that respondent

otherwise made any section 6330 determination.    Cf. Chocallo v.

Commissioner, T.C. Memo. 2004-152 (describing an order denying a

motion to dismiss for lack of jurisdiction predicated on the
                              - 5 -

nonissuance of any notice of determination, where the Court had

found that the taxpayer had received a “‘determination’ within

the contemplation of section 6330” on the basis of “various

discrepancies” in the transcripts of account).      But as suggested

in Boyd v. Commissioner, supra at 303, even if we were to

conclude that the notice of levy was “evidence of a concurrent

section 6330 determination”, we would be required to dismiss this

case for lack of jurisdiction because petitioner did not file his

petition until November 17, 2006, which was more than 30 days

after the October 9, 2006, notice of levy.4

     Accordingly, we must grant respondent’s motion to dismiss

for lack of jurisdiction.


                                           An order of dismissal

                                      for lack of jurisdiction will

                                      be entered.




     4
       The notice at issue in Boyd v. Commissioner, 124 T.C. 296
(2005), affd. 451 F.3d 8 (1st Cir. 2006), was a notice of refund
offset, which the taxpayers contended was a levy subject to the
provisions of sec. 6330. This Court concluded that it need not
decide whether a refund offset constituted a levy subject to sec.
6330, because in any event the taxpayers had failed to satisfy
the prerequisites for invoking the Court’s jurisdiction under
sec. 6330. Affirming this Court’s decision, the Court of Appeals
for the First Circuit went on to decide that an offset is not a
levy, to dispel any concern that “arbitrary administrative
action” had wrongfully deprived the taxpayers of “pre-seizure
procedural protections Congress sought to provide through section
6330.” Boyd v. Commissioner, 451 F.3d at 11.
