                   T.C. Memo. 2003-7



                UNITED STATES TAX COURT



             JOHN J. GREEN, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 13977-01L.            Filed January 8, 2003.



     P filed a timely petition for judicial review
pursuant to sec. 6330(d)(1)(A), I.R.C., in response to
a notice of determination by R to proceed with
collection of assessed tax liabilities for 1996. P
filed a motion to dismiss for lack of jurisdiction.

     Held: We do not look behind a notice of
determination to decide whether the determination is
valid for jurisdictional purposes. The notice of
determination is valid on its face, and we have
jurisdiction pursuant to sec. 6330(d)(1)(A), I.R.C.



John J. Green, pro se.

Robert T. Little, for respondent.
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                         MEMORANDUM OPINION


     NIMS, Judge:   This case is before us on petitioner’s motion

to dismiss for lack of jurisdiction.        Unless otherwise indicated,

all section references are to the Internal Revenue Code as

amended.

     The issue for decision is whether this Court has

jurisdiction to review respondent’s determination to proceed with

collection of assessed Federal income tax liabilities for

petitioner’s taxable year 1996.

                              Background

     Respondent issued a “NOTICE OF DETERMINATION CONCERNING

COLLECTION ACTION(S) UNDER SECTION 6320 and/or 6330” to

petitioner on November 1, 2001.     The notice states:

     Mr. Green was mailed a Statutory Notice of Deficiency
     on 9/7/99. * * *

               *     *    *     *       *     *    *

     The tax assessment was made on 4/10/2000. An initial
     balance due notice was sent to the taxpayer at the same
     address of record on 4/10/2000. * * * the taxpayer did
     not pay the subject assessment within 10 days. The
     three aspects of IRC 6321 were met, thus the statutory
     lien arose.

               *     *    *     *       *     *    *

     On 6/19/2001 a conference was held with Mr. Green at
     the Olympia Fields, Illinois field office. * * * He
     did not propose an alternative to the filed lien. He
     questioned the under-lying assessment and whether or
     not the Service had followed proper procedures in
     making the subject assessment. The Settlement Officer
     explained the Statutory Notice of Deficiency had been
                                - 3 -

     issued to his address of record and he had not
     petitioned the tax court as directed. The taxpayer had
     previously requested a transcript of account and was
     promised one at the conference. A transcript of
     account was provided to the taxpayer on 10/5/2001.

                *   *     *     *       *   *   *

     A review of the case history indicates a valid
     assessment was made, notice and demand was provided and
     a neglect or refusal to pay occurred. * * *

                *   *     *     *       *   *   *

     The Federal Tax Lien is sustained. Proper
     administrative procedures were followed by Service
     personnel. This recommendation balances the need for
     efficient tax administration.

     In response to this notice, petitioner timely filed a

petition with the Tax Court for judicial review pursuant to

section 6330(d)(1)(A).   At the time the petition was filed in

this case, petitioner resided in Steger, Illinois.

     On the same day petitioner filed the petition, he submitted

a “MOTION THAT THE TAX COURT DECLARE INVALID THE IRS

‘DETERMINATION’ AT ISSUE”.    As grounds for this motion,

petitioner asserted that “the appeals officer issued the

‘Determination’ without conducting the CDP [collection due

process] hearing in accordance with the law.”       This motion was

filed by the Court as a motion to dismiss for lack of

jurisdiction.
                               - 4 -

                            Discussion

     At the hearing on petitioner’s motion, petitioner

claimed that he did not intend to challenge the Court’s

jurisdiction in this case and never requested that the Court

dismiss the case for lack of jurisdiction.    Petitioner’s motion

to declare the determination invalid was filed by the Court as a

motion to dismiss for lack of jurisdiction because a valid

determination is a jurisdictional prerequisite for judicial

review pursuant to section 6330(d)(1)(A).    See Lunsford v.

Commissioner, 117 T.C. 159, 161 (2001).     Consequently, if the

Court granted petitioner’s motion to declare the determination

invalid, the Court would be forced to dismiss the case for lack

of jurisdiction.   Therefore, petitioner’s motion was properly

filed as a motion to dismiss for lack of jurisdiction.

     Where the Appeals Office issues a notice of determination to

the taxpayer following an administrative hearing regarding a lien

action, sections 6320(c) (by way of cross-reference) and

6330(d)(1) provide that the taxpayer will have 30 days following

the issuance of the determination to file a petition for review

with the Tax Court or a Federal District Court, as appropriate.

The taxpayer may appeal the determination to the Tax Court,

rather than a Federal District Court, if the Tax Court generally

has jurisdiction over the type of tax involved in the case.    Sec.

6330(d)(1)(A); Downing v. Commissioner, 118 T.C. 22, 26 (2002);
                               - 5 -

Landry v. Commissioner, 116 T.C. 60, 62 (2001).    The type of tax

involved in this case is Federal income tax.    The Tax Court has

jurisdiction over Federal income tax.     Downing v. Commissioner,

supra at 28; Landry v. Commissioner, supra at 62.

     Since we have jurisdiction over the type of tax involved,

the only remaining requirements for jurisdiction pursuant to

section 6330(d)(1)(A) are a valid notice that embodies a

determination to proceed with collection and a timely filed

petition for review.   Lunsford v. Commissioner, supra at 164.

Both parties agree that the petition in this case was timely

filed.   The only remaining issue is whether a valid notice of

determination was issued.

     Petitioner argues that the determination is invalid because

the Appeals officer issued the determination without conducting a

hearing in accordance with the law.    However, our jurisdiction

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, supra at 164.     Both of these

preconditions have been met in this case.    In determining the

validity of a determination for jurisdictional purposes, the

Court will not look behind the notice of determination in order

to ascertain whether the taxpayer was afforded an appropriate

hearing with the Commissioner’s Appeals Office.     Id.
                               - 6 -

Accordingly, we hold that this Court has jurisdiction in this

case and deny petitioner’s motion to dismiss for lack of

jurisdiction.

     Because our denial of petitioner’s motion to dismiss will

serve to allow petitioner to proceed in this case, we take this

opportunity to advise petitioner of the provisions of section

6673(a)(1).   As relevant herein, that section authorizes the

Court to require a taxpayer to pay to the United States a penalty

not in excess of $25,000 whenever it appears that proceedings

have been instituted or maintained by the taxpayer primarily for

delay or that the taxpayer’s position in such proceeding is

frivolous or groundless.   The Court has repeatedly indicated its

willingness to impose such penalties in lien and levy review

cases.   See, e.g., Roberts v. Commissioner, 118 T.C. 365, 372-373

(2002); Pierson v. Commissioner, 115 T.C. 576, 580-581 (2000).

The Tax Court has in fact imposed a penalty in a number of such

cases.   See, e.g., Roberts v. Commissioner, supra at 373

(imposing a penalty pursuant to section 6673 of $10,000); Crow v.

Commissioner, T.C. Memo. 2002-149 (imposing a penalty pursuant to

section 6673 of $1,500); Newman v. Commissioner, T.C. Memo. 2002-

135 (imposing a penalty pursuant to section 6673 of $1,000).

     Petitioner advances some of the same arguments that led to

the imposition of a penalty in Roberts v. Commissioner, supra

(the taxpayer argued that since IRS used a computer-generated
                               - 7 -

form to make an assessment, it did not constitute a signed

summary record of assessment); Crow v. Commissioner, supra (the

taxpayer argued that:   (1) The Appeals officer failed to obtain

verification from the Secretary that the requirements of any

applicable law or administrative procedure were met; (2) the

Appeals officer failed to identify the statutes making the

taxpayer liable for Federal income tax; (3) the taxpayer was

denied the opportunity to challenge (a) the appropriateness of

the collection action, and (b) the existence or amount of his

underlying tax liability; and (4) the determination at issue was

invalid because the Appeals officer failed to establish due

process); and Newman v. Commissioner, supra (the taxpayers argued

that:   (1) The Appeals officer failed to obtain verification from

the Secretary that the requirements of any applicable law or

administrative procedure were met; (2) the Appeals officer failed

to identify the statutes making the taxpayers liable for Federal

income taxes; (3) the taxpayers were denied the opportunity to

challenge (a) the appropriateness of the collection action, and

(b) the existence or amount of their underlying tax liabilities;

and (4) the determination at issue was invalid because the

Appeals officer issued the determination without conducting a
                                 - 8 -

hearing in accordance with the law).       Petitioner might therefore

care to review those cases and consider whether it is in his best

interest to persist in advancing such arguments.

     To reflect the foregoing,


                                         An appropriate order denying

                                 petitioner’s motion to dismiss for

                                 lack of jurisdiction will be

                                 issued.
