                  T.C. Summary Opinion 2007-128



                     UNITED STATES TAX COURT



          ZANE D. AND DEBBIE L. WORMAN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4500-06S.                Filed July 26, 2007.


     Zane D. and Debbie L. Worman, pro sese.

     Michael W. Lloyd, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code, as amended, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     This matter is before the Court on respondent’s Motion To

Dismiss For Lack Of Jurisdiction, filed June 1, 2007, and

supplemented June 13, 2007.    In his motion, respondent moves to

dismiss this case for lack of jurisdiction principally on the

ground that “no Notice of Determination Concerning Collection

Actions Under Section 6320 and/or Section 6330, as authorized by

I.R.C. § 6320 and required by I.R.C. § 6330(d) to form the basis

for a petition to this Court, has been sent to petitioners with

respect to taxable years 1995, 1998, 2002 and 2003”.   Respondent

also moves to dismiss on the ground that “as to the IRS filed

Notice of Federal Tax Lien which is attached to the petition,

said lien was released on February 14, 2007, and the liability

fully paid”.   For reasons discussed hereinafter, we shall grant

respondent’s motion, as supplemented, in that we shall dismiss

this case for lack of jurisdiction on the ground that no notice

of determination was sent to petitioners by respondent’s Office

of Appeals for any of the taxable years in issue.

                              Background

     At the time that the petition was filed, Zane D. Worman and

Debbie L. Worman (petitioners) resided in Gillette, Wyoming.

     For 1995, 1998, 2002, and 2003, the taxable years in issue,

petitioners filed Federal income tax returns.   Although
                               - 3 -

petitioners reported tax on those returns, petitioners did not

enclose full payment with any of their returns.

     Upon receipt of petitioners’ returns, respondent assessed

the tax reported thereon, as well as applicable penalties and

statutory interest, and sent petitioners so-called statutory

notices of balance due, i.e., notice and demand for payment.    See

sec. 6303(a).   Petitioners did not immediately pay the

outstanding liabilities.2

     By letter dated February 16, 2006, respondent sent to

petitioners a Notice of Federal Tax Lien Filing and Your Right to

a Hearing Under IRC 6320 (lien notice).   The lien notice

referenced a notice of Federal tax lien filed by respondent with

the Campbell County Clerk in Gillette, Wyoming, regarding

petitioners’ outstanding liabilities for 1995, 1998, 2002, and

2003.

     The lien notice included the following statements:

     You have a right to request a hearing with us to appeal
     this collection action and to discuss your payment
     method options. To explain the different collection
     appeal procedures available to you, we’ve enclosed
     Publication 1660, Collection Appeal Rights.

     If you want to request a hearing, please complete the
     enclosed form 12153, Request for a Collection Due
     Process Hearing and mail it to:



     2
        Subsequently, for 1995, respondent determined a modest
deficiency in, and addition for late filing to, petitioners’
income tax. Upon default of the notice of deficiency, respondent
assessed the determined liability.
                               - 4 -

               Internal Revenue Service
               DP S-661A
               P.O. Box 1064
               Bensalem, PA 19020

     You must request your hearing by 03/20/2006.

     We’ll issue a Certificate of Release of the Federal Tax
     Lien within 30 days after you pay the full amount owed.

     Petitioners received the lien notice.    However, they did not

file with respondent a Form 12153, Request for a Collection Due

Process Hearing, or a written equivalent.    Rather, petitioners

filed with this Court on March 3, 2006, a petition disagreeing

“with the determination contained in the notice issued by the

Internal Revenue Service for the year(s) or period(s) 1995, 1998,

2002, [and] 2003, as set forth in such notice dated 2/16/2006”.3

As an exhibit to the petition, petitioners attached a copy of the

lien notice, as well as a copy of the notice of Federal tax lien

filed with the Campbell County Clerk in Gillette, Wyoming.

     By notice dated January 19, 2007, this case was calendared

for trial at the Court’s trial session scheduled for June 22,

2007, in Cheyenne, Wyoming.

     On February 26, 2007, respondent filed a Certificate of

Release of Federal Tax Lien with the Campbell County Clerk in

Gillette, Wyoming.   The certificate of release recites that

petitioners have satisfied the taxes and all statutory additions


     3
        The petition arrived at the Court by Priority Mail in an
envelope bearing a U.S. Postal Service postmark dated Feb. 27,
2006.
                                 - 5 -

for 1995, 1998, 2002, and 2003 and that, as a consequence, “the

lien provided by Code section 6321 * * * has been released.”

     On June 1, 2007, respondent filed his Motion To Dismiss For

Lack Of Jurisdiction.     By Order dated June 7, 2007, the Court

calendared the motion for hearing at the June 22, 2007 Cheyenne,

Wyoming trial session.4    On June 13, 2007, respondent filed a

Supplement to his motion.

                              Discussion

     The Tax Court is a court of limited jurisdiction.     See sec.

7442.    Accordingly, we may exercise jurisdiction only to the

extent expressly authorized by statute.     Breman v. Commissioner,

66 T.C. 61, 66 (1976).     In addition, jurisdiction must be proven

affirmatively, and a party invoking our jurisdiction bears the

burden of proving that we have jurisdiction over the party’s

case.    See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975);

Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177,

180 (1960); Natl. Comm. to Secure Justice, Etc. v. Commissioner,

27 T.C. 837, 839 (1957).     In order to meet this burden, the party

must establish affirmatively all facts giving rise to our

jurisdiction.    See Wheeler’s Peachtree Pharmacy, Inc. v.

Commissioner, supra at 180; Consol. Co. v. Commissioner, 15

B.T.A. 645, 651 (1929).



     4
        Telephone conference calls with the parties were
conducted prior to the scheduled hearing.
                               - 6 -

     The Internal Revenue Service Restructuring and Reform Act of

1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 685, was enacted into

law on July 22, 1998.   RRA 1998 section 3401, 112 Stat. 746,

grants this Court jurisdiction to review the Commissioner’s

determination as to the propriety of filing a notice of Federal

tax lien under section 6320 or a proposed levy on property under

section 6330.

     In a collection review action, this Court’s jurisdiction

under sections 6320 and 6330 depends, in part, on the issuance of

a notice of determination by the Commissioner Office of Appeals

after the taxpayer has requested an administrative hearing

following the issuance by the Commissioner’s collection division

of either a final notice of intent to levy, see sec. 6330(a), or

a notice of filing of Federal tax lien, see sec. 6320(a).    See

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

Commissioner, 116 T.C. 263, 269 (2001); Offiler v. Commissioner,

114 T.C. 492, 498 (2000); see also Rule 330(b).

     Petitioners received the lien notice in February 2006, but

they never requested an administrative hearing by filing with

respondent a Form 12153 or an equivalent written request.

Instead, they responded to the lien notice by filing a petition

with this Court.   Thus, because petitioners never requested an

administrative hearing as mandated by section 6320, respondent’s

Office of Appeals had no occasion to, and therefore did not,

issue a notice of determination.   In short, the petition in this
                               - 7 -

case was filed in response to the lien notice and not in response

to a notice of determination as mandated by statute.   Therefore,

we may not, as we lack jurisdiction, address the propriety of the

filing of the lien in this case.

     The foregoing is dispositive of the matter before us.

However, even if petitioners had filed with the Court a petition

appealing from a notice of determination issued by respondent’s

Office of Appeals following a timely request for an

administrative hearing, we would still be obliged to grant

respondent’s motion, as supplemented, and dismiss this case.

Thus, in Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006), the

Court held:   (1) The taxpayer’s challenges to the Commissioner’s

collection action (a proposed levy) were moot because there was

no unpaid tax liability upon which a levy could be based and the

Commissioner would not take any further collection action; (2)

this Court lacks jurisdiction in a lien or levy case (collection

review case) to determine an overpayment or to order a refund or

credit of taxes; and (3) the taxpayer’s case should be dismissed

as moot.

     In the present case, petitioners’ unpaid assessed liability

is zero for each of the 4 years in issue.   Although a few cents

of accrued interest may remain for 1998 and 2003, respondent’s

counsel has represented that respondent has, as a matter of

policy, written off such amounts as de minimis and does not seek

to collect them.   This representation is confirmed by the fact
                                - 8 -

that in February 2007, respondent filed with the Campbell County

Clerk in Gillette, Wyoming, a Certificate of Release of Federal

Tax Lien reciting that petitioners had satisfied the taxes and

“all statutory additions” for 1995, 1998, 2002, and 2003.

     Finally, we note that if petitioners think that they have

overpaid their liability for any of the years in issue, then

petitioners may have a judicial remedy in the form of a civil

action for refund in the appropriate U.S. District Court or the

U.S. Court of Federal Claims.   See sec. 7422; see also 28 U.S.C.

secs. 1346(a)(1), 1402(a).5   Because such actions are governed by

strict procedural rules, petitioners may care to consult a

competent tax professional familiar with such matters.




     5
        Civil actions for refund under sec. 7422 are not
cognizable in the Tax Court. Indeed, our jurisdiction to even
determine overpayments is narrowly circumscribed. E.g., sec.
6512(b)(1).
                         - 9 -

To give effect to the foregoing,



                                 An order granting

                         respondent’s motion, as

                         supplemented, will be entered

                         dismissing this case for lack

                         of jurisdiction on the ground

                         that no notice of determination was

                         sent to petitioners by respondent’s

                         Office of Appeals for any of

                         the taxable years in issue.
