                  T.C. Memo. 2008-238



                UNITED STATES TAX COURT



             KENNETH DAVIS, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 16540-08.              Filed October 27, 2008.



     On Jan. 24, 2008, R sent P’s employer a “Lock-in
Letter” requiring a prospective adjustment to P’s
withholding. On June 23, 2008, R sent P a notice of
deficiency for 2004. On July 7, 2008, P filed, inter
alia, a motion to restrain assessment and collection.
     Held: In the absence of any assessment or
collection for 2004, there is nothing to restrain as to
that year.
     Held, further, R’s “Lock-in Letter” is not a
collection action within the meaning of secs. 6320 and
6330, I.R.C.
     Held, further, P’s motion to restrain shall be
denied.


     Kenneth Davis, pro se.

     Mark Cottrell and Shannon E. Loechel, for respondent.
                                - 2 -

                        MEMORANDUM OPINION


     ARMEN, Special Trial Judge:    This case is before the Court

on petitioner’s Motion To Restrain Assessment Or Collection And

To Order Refund Of Amount Collected, filed July 7, 2008.   As

explained in greater detail below, we shall deny petitioner’s

motion.

Background

     The facts necessary to a resolution of the motion before us

may be summarized as follows:

     By notice of deficiency dated June 23, 2008, respondent

determined a deficiency in petitioner’s Federal income tax for

2004 of $6,074, together with additions to tax under sections

6651(a)(1), 6651(a)(2), and 6654(a).1

     The deficiency in tax is based principally on respondent’s

determination that petitioner, an employee of the United States

Postal Service, failed to report on an income tax return for 2004

wages received in that year of $45,219.2   The addition to tax

under section 6651(a)(1) is based on respondent’s determination

that petitioner failed to file an income tax return for 2004.



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended; all Rule
references are to the Tax Court Rules of Practice and Procedure.
     2
        The deficiency is also based on respondent’s
determination that petitioner failed to report interest income of
$80 paid to him in 2004 by the Atlanta Postal Credit Union.
                               - 3 -

The addition to tax under section 6651(a)(2) and the addition to

tax under section 6654(a) are based on respondent’s

determinations that petitioner failed to pay income tax and

estimated tax, respectively, except for $284 of tax withheld from

his wages by his employer.3

     On July 7, 2008, petitioner filed a petition with this

Court.4   Petitioner attached only one document to his petition as

an exhibit, namely, a complete copy of the June 23, 2008 notice

of deficiency.   However, petitioner did not check the box

indicating that he was disputing the notice of deficiency.

Rather, petitioner checked the box indicating that he was

disputing an IRS notice of determination concerning collection

action.   In that regard, petitioner referenced (but did not

attach) an IRS notice dated January 24, 2008.   Petitioner then

alleged in paragraphs 5 and 6, the sole substantive paragraphs of

the petition, as follows:

     5. Respondent has issued a withholding order against
     Petitioner without first sending Petitioner a Final
     Notice of Intent to Levy and Notice of Your Right to a
     Hearing (Final Notice). Petitioner is forced to
     petition this Tax Court to restrain this unlawful
     collection. No box was available for [sic] this form


     3
        In the notice of deficiency, respondent credited
petitioner for the amount withheld from his wages insofar as his
ultimate tax liability is concerned. However, we note that the
determination of a statutory deficiency does not take such
withheld amount into account. See sec. 6211(b)(1).
     4
        At the time that the petition was filed, petitioner
resided in the State of Georgia.
                               - 4 -

      for me to check for IRS failure to issue a Final
      Notice, so Petitioner had no choice but to check the
      box that is most closely identifiable with this current
      case. Respondent did not provide Petitioner with no
      [sic] other remedy to resolve this matter.

      Petitioner will be filing a Motion to Restrain
      Collection concurrently with this Petition.

      6. On January 2 [sic], 2008, the IRS sent a levy to
      Petitioner’s employer, United States Postal Service
      without first issuing a Final Notice to Petitioner,
      which would have afforded Petitioner the opportunity to
      request for [sic] a Collection Due Process (CDP)
      Hearing. Respondent NEVER sent Petitioner a Final
      Notice, which would have provided Petitioner the
      opportunity to request for [sic] a Collection Due
      Process Hearing. There is no regulation found in the
      Internal Revenue Code authorizing this unlawful
      collection action. This collection action is in direct
      violation of Section 6330 and 6331 of the Internal
      Revenue Code. [Emphasis in the original.]

      Concurrently with the filing of petition on July 7, 2008,

petitioner filed the Motion To Restrain Assessment Or Collection

And To Order Refund Of Amount Collected presently pending before

us.

      We shall describe petitioner’s motion and what lies behind

it, but first we must observe that respondent has not, at any

time, made an assessment against petitioner for either the

deficiency in tax or any of the additions to tax determined in

the June 23, 2008 notice of deficiency.5   Indeed, petitioner’s

account balance plus accruals for 2004, signifying his liability


      5
        Cf. sec. 6861 (permitting jeopardy assessments of income
tax notwithstanding the provisions of sec. 6213(a)). Lest there
be doubt, we repeat: Respondent has made no assessment against
petitioner for 2004.
                                - 5 -

for that year as reflected on respondent’s records, is zero.6

Thus, in the absence of any account balance or accruals for 2004,

respondent has had no reason to attempt, and has not attempted,

to collect any liability for that year as no such liability has

arisen to date.   Similarly, in the absence of any account balance

or accruals for 2004, respondent has had no reason to file, and

has not filed, a notice of Federal tax lien for that year.   In

short, respondent has taken no collection action whatsoever in

respect of whatever potential liability petitioner may ultimately

have for 2004 as determined by respondent in the notice of

deficiency.

     Returning now to petitioner’s motion to restrain, we observe

that petitioner’s motion is solely focused on a letter dated

January 24, 2008, that was sent by respondent to petitioner’s

employer.   The letter directed the employer to henceforth

disregard the information on petitioner’s Form W-4, Employee’s

Withholding Allowance Certificate, and instead withhold income

tax on the basis of a specified marital status and a specified

number of withholding allowances.   This type of letter is

popularly known either as a “Lock-in Letter” or (reflecting its

form number) as Letter 2800C.

     6
        Respondent has placed a “520” code on petitioner’s
account for 2004. This code serves both as an alert to
respondent’s personnel of petitioner’s pending Tax Court case and
as a bar to a premature assessment of the determined deficiency
and additions to tax.
                              - 6 -

     Although petitioner’s motion purports to include as an

exhibit a copy of the January 24, 2008 Lock-in Letter, the motion

does not include any such exhibit, and a copy of the Lock-in

Letter is not otherwise part of the record.   However, the Lock-in

Letter would have included paragraphs such as the following:

     Dear

     WHY ARE WE WRITING TO YOU?

     Our records show that your employee, named above, is
     not entitled to claim a complete exemption from
     withholding or more than a specified number of
     withholding allowances.

     WHAT ACTIONS DO YOU NEED TO TAKE?

     Please disregard the information on this employee’s
     Form W-4, Employee’s Withholding Allowance Certificate,
     and withhold income tax based on the following marital
     status and withholding allowances:

               Marital Status:
               Withholding Allowances:

     Do not honor any new Form W-4 from your employee that
     results in less income tax withholding than at the
     status and allowances shown above. * * *

     Please give the attached Employee’s Copy [Letter 2801C]
     of this letter [Letter 2800C] to the employee named
     above within ten business days from the date of this
     letter. * * *

     WHEN DO YOU ADJUST YOUR EMPLOYEE’S WITHHOLDING?

         ** FIRST PAY PERIOD ENDING ON OR AFTER [date] * *

     You must begin withholding income tax at the marital
     status and specified number of withholding allowances
     shown above starting with the first pay period ending
     on or after 60 days from the date of this letter, AND
     NOT BEFORE. This time period will provide your
     employee with an opportunity to dispute our
                               - 7 -

     determination before you adjust the employee’s
     withholding.

     HOW DOES THE LAW SUPPORT THESE ACTIONS?

     Internal Revenue Code (IRC) Section 3402 requires
     employers to withhold federal income tax. Under
     section 31.3402(f)(2)-1T(g)(2) of the Temporary
     Employment Tax Regulations, we may issue this letter to
     notify you that your employee is not entitled to claim
     a complete exemption from withholding or claim more
     than the maximum number of withholding allowances shown
     above.

Internal Revenue Manual (IRM) Exhibit 5.19.11-2 (May 1, 2006);

emphasis in the original.7

     As applicable to petitioner, the commencement of initial

withholding, or the commencement of increased withholding,

pursuant to the January 24, 2008 Lock-in Letter would necessarily

have begun in 2008.   At the earliest, the withholding would

necessarily have been in respect of potential liability for the

taxable year 2008 and not for any prior taxable year.

Petitioner’s account balance plus accruals for 2008, as reflected

on respondent’s records, is zero.   This is not surprising, given


     7
        The regulatory citation appearing in the last paragraph
of IRM Exhibit 5.19.11-2 (May 1, 2006) as quoted above has not
been updated to reflect the final regulation, namely, sec.
31.3402(f)(2)-1(g), Employment Tax Regs. The final regulation is
generally effective Apr. 14, 2005, except that certain parts
thereof (which do not appear to be relevant to the instant case)
apply on Oct. 11, 2007. Sec. 31.3402(f)(2)-1(g)(5), Employment
Tax Regs. The final regulation continues to authorize the
Commissioner to issue a Lock-in Letter to an employer notifying
the employer that the employee is not entitled to claim a
complete exemption from withholding or claim more than a
specified maximum number of withholding allowances.
                               - 8 -

the fact that the taxable year 2008 is still open and yet to

close.   Moreover, respondent has not made any termination

assessment against petitioner for any part of 2008.    See secs.

441, 6851.

     Nevertheless, petitioner contends that respondent’s January

24, 2008 Lock-in Letter constitutes a collection action because

it subjects him to income tax withholding by his employer.

Petitioner contends further that because the Lock-in Letter was

not preceded by a final notice of intent to levy offering him an

administrative hearing and judicial review, he was denied the

protections afforded by sections 6320 and 6330.    Accordingly, in

petitioner’s view, injunctive relief is warranted.    Not

surprisingly, respondent takes a different view.

Discussion

     As is plainly apparent, petitioner has no assessed liability

(and no liability for unassessed accruals) for either 2004 or

2008 (or for any part of 2008).   But petitioner has been made

subject to income tax withholding (or increased withholding)

through respondent’s action in serving petitioner’s employer with

the January 24, 2008 Lock-in Letter.   Essentially, then, we must

decide whether respondent’s action constitutes a prohibited

collection action that should be (or can be) enjoined by this

Court.
                                - 9 -

     A.   Tax Withholding

     In 1943, Congress required the withholding of income taxes

at the source on wages, see Current Tax Payment Act of 1943, ch.

120, 57 Stat. 126, and this pay-as-you-go system for employees

has been in place ever since.   Withholding alleviates the burden

on wage earners of having to make large payments of tax at one

time, and it benefits the Government not only by providing a more

constant stream of receipts but also by protecting “against

deaths, disappearances, and insolvencies, and to catch the

itinerants who were moving from place to place with incomes

taxable in the aggregate but with whom the Treasury could not

keep pace.”   13 Mertens, Law of Federal Income Taxation, sec.

47A.02, at 47A-8 (2005 rev.).

     The Commissioner has described income tax withholding as

other than a tax in itself.   Rev. Rul. 60-220, 1960-1 C.B. 399;8

see sec. 3402; sec. 31.3402(a)-1, Employment Tax Regs.   During



     8
        More fully, the Commissioner has described the
withholding system as follows:

           The system of withholding income tax from wages
     was adopted as a means of collecting income tax on a
     pay-as-you-go basis. Its object is to collect
     currently the approximate tax liability on wages by
     requiring the employer to withhold a specified amount
     or percentage from each wage payment. Such amount is
     to be paid over to the Federal Government for the
     employee’s income tax account. Thus, income tax
     withholding is a system or method of tax collection and
     not a tax in itself. [Rev. Rul. 60-220, 1960-1 C.B.
     399.]
                              - 10 -

the taxable year, a taxpayer’s liability is inchoate and not

precisely determinable.   After the close of the year, however,

the taxpayer determines his or her liability, reports it on a

return, and offsets the tax withheld against that liability.    If

there is excess withholding, it may be claimed as an overpayment,

and in most instances it is promptly refunded to the taxpayer.

     There are those who may seek to avoid withholding by

claiming to be exempt therefrom or by overstating their

withholding allowances on Form W-4.    The Commissioner’s

Withholding Compliance Program is designed to deal with such

situations:

          The mission of the Withholding Compliance Program
     is to ensure that taxpayers who have serious under-
     withholding problems are brought into compliance with
     federal income tax withholding requirements. The
     program uses Form W-2 Wage and Tax Statement (W-2)
     information to identify taxpayers with insufficient
     withholding. The goal is to correct withholding to
     ensure that taxpayers have enough income tax withheld
     to meet their tax obligations. [IRM 5.19.11.1(1) (May
     1, 2006).]

     Integral to the Withholding Compliance Program is the “Lock-

in Letter”:

     Letters 2800C and 2801C, mailed to the employer and the
     taxpayer, respectively, are commonly known as the
     “lock-in letters”. Letter 2800C instructs the employer
     to disregard the Form W-4 submitted by the taxpayer and
     withhold at the marital status and the number of
     allowances determined by the Service. Letter 2801C
     advises the taxpayer that the employer has been
     instructed to disregard the Form W-4 submitted by the
     taxpayer and withhold at the rate specified in Letter
     2800C. [IRM 5.19.11.3.2(1) (May 1, 2006).]
                              - 11 -

     Internal Revenue Manual provisions contemplate taxpayer

responses to “Lock-in Letters” and provide for redeterminations,

specifically including a release of the “lock-in”.   E.g., IRM

5.19.11.3.9 (May 1, 2006); IRM 5.19.11.3.10 (May 1, 2006).   These

provisions are based on authority granted by regulations.    See

sec. 31.3402(f)(2)-1(g), Employment Tax Regs.9


     9
        A taxpayer’s contention with regard to the alleged
invalidity of the regulation has been held to be without merit.
Bennett v. United States, 361 F.Supp.2d 510, 516 (W.D. Va. 2005),
affd. in part and dismissed in part by unpublished per curiam
order 155 Fed.Appx. 716 (4th Cir. 2005). In discussing the
matter, the District Court stated that

     the administration and enforcement of the Internal
     Revenue Code is delegated by statute to the Secretary
     of the Treasury who may prescribe regulations in
     furtherance of the purposes of the Code. See 26 U.S.C.
     § 7801(a)(1). Furthermore, all persons liable for any
     tax or the collection of any tax under the terms of the
     Internal Revenue Code are required to comply with the
     rules and regulations prescribed by the Secretary. 26
     U.S.C. § 6001. One of those requirements is that an
     employer must deduct and withhold from its employees’
     wages the tax determined in accordance with the
     provisions of the Code. 26 U.S.C. § 3402. In fact,
     the employer itself can be liable to the government for
     the amount of the tax that must be withheld in
     accordance with the Code. 26 U.S.C. § 3403.

          In furtherance of these purposes, regulations
     specify that the IRS may find that a withholding
     exemption certificate is defective and may instruct the
     employer to withhold taxes from the employee on the
     basis of instructions from the IRS rather than in
     accordance with the W-4 furnished by the employee. 26
     C.F.R. § 31.3402(f)(2)-1(g)(5). [The citation is to a
     version of the regulation earlier than the one
     currently in effect.] Courts have noted that an
     employer is obligated to comply with the instructions
     of the IRS in withholding sums from the paychecks of
                                                    (continued...)
                               - 12 -

     B.    Jurisdiction to Enjoin: Deficiency Action

     In the context of an action for redetermination of

deficiency, this Court’s authority to restrain assessment or

collection is found in the penultimate sentence of section

6213(a):

     The Tax Court shall have no jurisdiction to enjoin any
     action or proceeding or order any refund under this
     subsection unless a timely petition for a
     redetermination of the deficiency has been filed and
     then only in respect of the deficiency that is the
     subject of such petition.

     In the present case, it is not clear that petitioner

intended to commence an action for redetermination of the 2004

deficiency.    After all, there are no assignments of error nor

allegations of fact, as required by Rule 34(b)(4) and (5), in

respect of respondent’s deficiency determination; rather, the

petition is styled as a collection action, and the substantive

allegations found in paragraphs 5 and 6 focus exclusively on

respondent’s January 24, 2008 Lock-in Letter and matters related

thereto.    If petitioner did not commence an action for




     9
     (...continued)
     its employees, even when those directions conflict with
     the information provided by the employee on his
     withholding certificate, because the employer is simply
     complying with applicable IRS code sections and
     regulations governing withholding. See, e.g., Chandler
     v. Perini Power Constructors, Inc., 520 F.Supp. 1152,
     1153 (D.C.N.H. 1981); McFarland v. Bechtel Petroleum,
     Inc., 586 F.Supp. 907, 910 (N.D.Cal. 1984).
                              - 13 -

redetermination, we lack jurisdiction to enjoin assessment or

collection under section 6213(a).

     Assuming arguendo that petitioner did intend to commence an

action for redetermination of deficiency, section 6213(a) makes

plain that we may only enjoin “in respect of the deficiency that

is the subject of such petition.”   The only deficiency that could

be the subject of the petition is the deficiency for 2004.   But

for that year there is no assessed liability (nor unassessed

accruals), and the record is clear that respondent is taking, and

has taken, no collection action whatsoever with regard to

respondent’s deficiency determination for that year.   Indeed,

even petitioner has not argued to the contrary, for his sole

focus is on the January 24, 2008 Lock-in Letter, which letter

concerns only current withholding and has no effect on 2004.

     In short, if the present action represents (in whole or in

part) an action for redetermination of deficiency, there is no

basis upon which we might grant petitioner’s motion to enjoin

assessment and collection.   Sec. 6213(a); see Dover Corp. v.

Commissioner, T.C. Memo. 1997-339, affd. 148 F.3d 70 (2d Cir.

1998).

     C.   Jurisdiction to Enjoin: Collection Action

     In the context of a lien or levy action (collection action),

this Court’s authority to restrain assessment or collection is

found in the last sentence of section 6330(e)(1):
                               - 14 -

     The Tax Court shall have no jurisdiction under this
     paragraph to enjoin any action or proceeding unless a
     timely appeal has been filed under subsection (d)(1)
     and then only in respect of the unpaid tax or proposed
     levy to which the determination being appealed relates.

     Thus, section 6330(e)(1) contemplates that we first have

plenary jurisdiction in a lien or levy action before we can

enjoin “any action or proceeding” and then only “in respect of

the unpaid tax or proposed levy to which the determination being

appealed relates.”    Accordingly, we must consider the conditions

to be satisfied before we have plenary jurisdiction in a lien or

levy action.

     In a lien or levy action (collection action) under sections

6320 and 6330, this Court’s jurisdiction depends on (1) the

issuance of a notice of determination by the Commissioner’s

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), and (2) the timely filing of

a petition by the taxpayer, 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).10


     10
        We note that this Court is a court of limited
jurisdiction. See sec. 7442. Accordingly, we may exercise
jurisdiction only to the extent expressly authorized by statute.
                                                   (continued...)
                              - 15 -

     In the instant case, respondent’s Appeals Office has not

issued any notice of determination for 2004.    Indeed, as we have

already discussed, petitioner has no outstanding (i.e., assessed

but unpaid) liability for that year.    Likewise, respondent’s

Appeals Office has not issued any notice of determination for

2008, as that year is still open and has yet to close.

Petitioner might say that respondent’s January 24, 2008 Lock-in

Letter constitutes a notice of determination within the meaning

of sections 6320 and 6330, but it does not.     Ballard v.

Commissioner, T.C. Memo. 2007-159.     Thus, lacking any notice of

determination, we are left without jurisdiction to enjoin

anything.

     Ignoring the foregoing, and relying heavily on Buffano v.

Commissioner, T.C. Memo. 2007-32, petitioner argues that

respondent’s January 24, 2008 Lock-in Letter constitutes a

species of collection action and that “ALL collection activity is

governed under IRC §6330.”   We disagree.

     We begin with Buffano v. Commissioner, supra.     That case was

a levy action involving the Commissioner’s efforts to collect a

taxpayer’s outstanding (i.e., assessed but unpaid) liabilities

for 2000 and 2001.   The only motion before us there was the

Commissioner’s motion to dismiss for lack of jurisdiction.     In

that regard, the Commissioner argued that the case should be


     10
      (...continued)
Breman v. Commissioner, 66 T.C. 61, 66 (1976).
                              - 16 -

dismissed on the ground that no notice of determination had been

issued to the taxpayer because the taxpayer had not requested an

administrative hearing following the issuance of a final notice

of intent to levy.   In contrast, the taxpayer argued that the

final notice of intent to levy had not been mailed to him at his

last known address (and had not been received), thereby depriving

him of the opportunity of pre-levy review.   The Court agreed with

the taxpayer, held that the final notice was invalid, and denied

the Commissioner’s motion; the Court then dismissed the case on

the alternative ground that the final notice was invalid.   In

short, petitioner’s reliance on Buffano v. Commissioner, supra,

is misplaced; that case is simply irrelevant to the matter before

us.

      We also flatly reject petitioner’s contention that

respondent’s January 24, 2008 Lock-in Letter is a collection

action within the meaning of sections 6320 and 6330.   As we said

in Ballard v. Commissioner, supra:

      There is nothing in the legislative history of the
      Internal Revenue Service Restructuring and Reform Act
      of 1998, Pub. L. 105-206, 112 Stat. 685, that would
      indicate that Congress intended to include withholding
      of income tax as the type of collection action for
      which a hearing must be offered to the taxpayer.

Thus, respondent’s issuance of a Lock-in Letter need not be

preceded by the issuance of a final notice offering the taxpayer
                                 - 17 -

an administrative hearing followed by judicial review.     Stated

otherwise, a Lock-in Letter is not a levy.11

     Petitioner’s assertion that “ALL collection activity is

governed under IRC §6330” is also wrong.     Here we need only

mention the common-law right of “offset” or “set-off”, codified

in section 6402(a), that permits the Commissioner to credit an

overpayment for one taxable year against a taxpayer’s liability

for another taxable year.     In that regard, this Court has

expressly held that an offset, made pursuant to section 6402(a),

does not constitute a levy and is therefore not subject to the

provisions of section 6330.     Bullock v. Commissioner, T.C. Memo.

2003-5, affd. without published opinion 206 Fed.Appx. 164 (3rd

Cir. 2006); accord Boyd v. Commissioner, 451 F.3d 8 (1st Cir.

2006), affg. 124 T.C. 296 (2005).

     Finally, petitioner baldly asserts, without citation of

authority, that “It is a fundamental principle of law that there

is always a remedy.”     But, there is no “fundamental principle of

law” that the “remedy” to a Lock-in Letter is necessarily found

in section 6330.12     And, further, there are both administrative


     11
        Petitioner’s reliance on Bennett v. United States, 361
F.Supp.2d 510 (W.D.Va. 2005), affd. in part and dismissed in part
by unpublished per curiam order 155 Fed.Appx. 716 (4th Cir.
2005), is misplaced. That case involved an action brought by the
taxpayer under sec. 7433. The District Court’s opinion did not
even cite, much less discuss, sec. 6330 or the Tax Court’s
authority to enjoin assessment and collection.
     12
          See, e.g.,    Bullock v. Commissioner, supra, (holding
                                                       (continued...)
                              - 18 -

and judicial remedies available to a taxpayer who feels put-upon

by the Commissioner’s Withholding Compliance Program.    Thus, by

its very terms, a Lock-in Letter does not contemplate that an

employer immediately adjust the employee’s withholding, but

rather wait a stipulated period of time in order to permit the

employee an opportunity to substantiate his or her withholding.

See, e.g., IRM 5.19.11.3.10 (May 1, 2006); see also sec.

31.3402(f)(2)-1(g)(2)(v), Employment Tax Regs.; sec.

31.3402(f)(2)-1(g)(4), Example 5, Employment Tax Regs.   Further,

an employee still not satisfied may (and should) file a return,

claim the amount withheld as a credit against his or her tax

liability, and request a refund.13   That approach failing, the

employee may institute a refund suit pursuant to section 7422

with either the appropriate United States District Court or the

United States Court of Federal Claims.   See McCormick v.

Commissioner, 55 T.C. 138, 142 n.5 (1970).




     12
      (...continued)
that an offset made pursuant to sec. 6402(a) does not constitute
a levy and is therefore not subject to the provisions of sec.
6330).
      13
        See Bennett v. United States, supra at 517, wherein the
District Court stated that the taxpayer

      does have a legal remedy to reclaim any excess amount
      of income tax withheld. He can simply file his income
      tax return for the year and receive a full refund of
      any overpayment.
                                - 19 -

     D.   Conclusion

     If the instant action is viewed as an action for

redetermination, then our jurisdiction to enjoin is limited to

the deficiency that is the subject of the action.    Sec. 6213(a).

The deficiency that is arguably the subject of the instant action

involves only 2004.    But, to date, respondent has not assessed

and is not attempting to collect anything for that year.     Thus,

there is nothing to restrain.    In this context, petitioner’s

motion is without merit and must be denied.

     If the instant action is viewed as one for collection

review, then our jurisdiction to enjoin is subject to section

6330(e)(1).   However, the only “collection” action identified by

petitioner is respondent’s January 24, 2008 Lock-in Letter.      But

because that letter is not a collection action within the meaning

of the collection review provisions of sections 6320 and 6330,

respondent’s Appeals Office had no occasion to, and did not,

issue a notice of determination.    Absent a notice of

determination and a timely appeal in respect thereof, this Court

lacks jurisdiction to enjoin.    In this context, petitioner’s

motion must therefore be denied.

     To give effect to the foregoing,



                                     An appropriate order will be

                                entered.
