ALD-078                                                         NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-2895
                                      ____________

                                EDWARD T. KENNEDY,
                                               Appellant

                                             v.

                     COMMISSIONER OF INTERNAL REVENUE
                       __________________________________

                               On a Petition For Review of
                                an Order of the Tax Court
                         (United States Tax Court No. 18-11586)
                      U.S. Tax Court Chief Judge: Maurice B. Foley
                        __________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 17, 2019

                Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

                             (Opinion filed January 28, 2019)
                                     ____________

                                        OPINION
                                      ____________





  This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Edward T. Kennedy petitions for review of an order of the United States Tax

Court dismissing his petition for lack of subject matter jurisdiction. For the reasons that

follow, we will summarily deny the petition for review.

       Kennedy filed a petition pro se in the United States Tax Court against the

Commissioner of Internal Revenue, alleging “trespass” and other causes of action by

high-ranking Government “Bandits” who had without jurisdiction “imprisoned” him

financially. Kennedy alleged that said Bandits, under color of law and starting in 2001,

took “ill-considered actions,” charging him with debts and injuring him with liens.

Kennedy sought money damages and the removal of all liens and claims of debt. His

petition did not identify a tax year at issue nor did he seek review of an agency Notice of

Determination. The Commissioner moved to dismiss the petition for lack of subject

matter jurisdiction, because of the absence of a reviewable Notice of Determination. The

Tax Court then gave Kennedy another opportunity to respond to the question of subject

matter jurisdiction and, in his response, Kennedy contended without support that he could

dispute a tax deficiency in Tax Court. The Tax Court, in an order filed and served on

August 8, 2018, dismissed Kennedy’s petition for lack of subject matter jurisdiction

because no reviewable Notice of Determination had been issued to him by the Internal

Revenue Service (“IRS”) for any conceivable tax year at issue.

       Kennedy petitions for review. We have jurisdiction pursuant to 26 U.S.C. §

7482(a)(1). We exercise plenary review over the Tax Court’s conclusions of law and

review its factual findings for clear error. See PNC Bancorp, Inc. v. Commissioner of
                                               2
Internal Revenue, 212 F.3d 822, 827 (3d Cir. 2000). Our Clerk granted Kennedy leave to

appeal in forma pauperis and advised him that the appeal was subject to summary

dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR

27.4 and I.O.P. 10.6. Kennedy has submitted an Informal Brief, which we will construe

as a document in support of the appeal.

       We will summarily deny the petition for review because no substantial question is

presented by it, Third Circuit LAR 27.4 and I.O.P. 10.6. The Tax Court may exercise

jurisdiction only to the extent provided by statute. 26 U.S.C. § 7442. The Internal

Revenue Code directs the Secretary of the Treasury -- acting through the IRS -- to

determine, assess, and collect federal taxes. 26 U.S.C. §§ 6201(a), 6301. If the IRS finds

that a person has unpaid taxes for a given year, it must notify him of the deficiency before

it can collect the debt. Id. at §§ 6212(a). Once the IRS mails notice, the taxpayer may

petition the Tax Court to redetermine the correct amount of the deficiency. Id. at §§

6213(a), 6214(a), but if he does not seek a redetermination, then the deficiency “shall be

assessed, and shall be paid upon notice and demand.” Id. at § 6213(c).

       The Commissioner of Internal Revenue is authorized to levy against property

where a taxpayer fails to pay taxes after notice and demand for payment is made. Id. at §

6331(a). No levy may be made, however, unless the Commissioner has notified the

taxpayer of his right to Collection Due Process hearing before an impartial IRS Appeals

officer before such levy is made. Id. at § 6330(b); § 6320(b)(1) (requiring opportunity

for fair hearing by Internal Revenue Service Office of Appeals). Section 6330(a) requires

the Commissioner to send a written notice to the taxpayer of his right to the hearing, id.

Once the taxpayer requests the hearing, the Appeals officer takes into consideration the
                                            3
issues raised by the taxpayer, id. at § 6330(c)(2), and renders a Notice of Determination

containing his or her findings and conclusions. 26 C.F.R. § 301.6330-1(e)(3). Section

6330(d)(1) then provides that the taxpayer, “within 30 days of a determination under this

section, may petition the Tax Court for review of such determination (and the Tax Court

shall have jurisdiction with respect to such matter).” 26 U.S.C. § 6330(d)(1).

       In its motion to dismiss, the Commissioner argued that no Notice of Determination

by an IRS Appeals officer was sent to Kennedy with respect to any taxable year between

2001 and 2017, suggesting that Kennedy had never requested a Collection Due Process

hearing. The Government asserted that it pulled transcripts for taxable years 2001

through 2017, and found that Kennedy did in fact have balances owed for the taxable

years 2006 and 2007; that liens were filed for taxable years 2006 and 2007; that liens

were placed on Kennedy’s assets due to the balances owed; and that, on April 12, 2011,

the IRS issued a Notice of Lien Filing and right to Collection Due Process hearing as to

taxable years 2006 and 2007. Kennedy, however, did not request a Collection Due

Process hearing, and since no hearing was requested, no Notice of Determination was

made by an Appeals Officer that might have conferred jurisdiction on the Tax Court for

taxable years 2006 and 2007.

       The Tax Court is a court of limited jurisdiction. See Sunoco v. Commissioner of

Internal Revenue, 663 F.3d 181, 187 (3d Cir. 2011). In view of the Commissioner’s

argument and search of his records and Kennedy’s failure to identify any reviewable

Notice of Determination made by the Internal Revenue Service Office of Appeals, or

even assert that he had requested a Collection Due Process hearing, it is apparent that

Kennedy never filed a request for a Collection Due Process hearing and that the IRS
                                            4
Appeals Office never issued a reviewable Notice of Determination. We uphold the Tax

Court’s conclusion that no Notice of Determination under 26 U.S.C. §§ 6320 or 6330 was

ever issued to Kennedy for taxable years 2001 through 2017, and thus that subject matter

jurisdiction over his petition was lacking.

       For the foregoing reasons, we will summarily deny the petition for review.




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