                  T.C. Memo. 2003-29



                UNITED STATES TAX COURT



     MARY LOU AND ALLEN E. JONES, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3965-02L.               Filed February 6, 2003.



     On Dec. 18, 2001, R mailed to Ps separate,
identical Notices of Determination Concerning
Collection Action(s) Under Sec. 6320 and/or 6330,
I.R.C. In addition to the Dec. 18, 2001, date stamped
next to the word “Date”, each notice was stamped “FEB
16 2002", in the immediate proximity of the words “in
re: Due Process Appeal (Tax Court)”. More than 30
days after the Dec. 18, 2001, mailing date of the
notices, Ps filed a petition with the Tax Court seeking
judicial review of the determination. R moved to
dismiss the petition for lack of jurisdiction on the
ground that the petition was not filed within the 30-
day period prescribed in sec. 6330(d)(1)(A), I.R.C.

     Held: Because Ps failed to file their petition
within 30 days of the notices of adverse determination,
the petition is dismissed for lack of jurisdiction.
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     Allen E. Jones, for petitioners.

     A. Gary Begun, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION

     HALPERN, Judge:   This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction (the

motion).   Petitioners object.   Respondent’s grounds are that the

petition was not filed within the time prescribed by section

6330(d)(1)(A).   An evidentiary hearing was held in Detroit,

Michigan, on June 10, 2002, at which testimony was taken and

other evidence was received.     On the basis of the evidence, and

for the reasons that follow, we shall grant the motion.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code presently in effect, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

                         FINDINGS OF FACT

     At the time the petition was filed, petitioners, husband and

wife, resided in Deckerville, Michigan.

     On December 18, 2001, the Internal Revenue Service Appeals

Office in Detroit, Michigan, mailed to each petitioner a “Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330", which notices (the notices) are identical

except for name and salutation.    The notices concern petitioners’

unpaid joint Federal income tax liabilities for 1995 and 1996.
                                 - 3 -

The notices were sent to petitioners by certified mail, and

petitioner wife signed for each on December 20, 2001.

      Each notice was date stamped “DEC 18 2001" in the upper left

hand corner next to the word “Date”.     Vertically listed in the

upper right hand corner of each notice were various items of

information, including information regarding the person to

contact at the Internal Revenue Service and a telephone number to

call.   The last item was the subject matter of the notice:    “In

Re:   Due Process Appeal (Tax Court)”.    Each notice bore a second

date stamp, “FEB 16 2002", immediately under or next to that last

information item.   Each notice also contained the following

sentence (comprising a separate paragraph) in the body of the

notice:

      If you want to dispute this determination in court, you
      must file a petition with the United States Tax Court
      for a redetermination within 30 days from the date of
      this letter.

Each notice also contained the following language:

      The time limit for filing your petition is fixed by
      law. The courts cannot consider your case if you file
      late. * * *

      Petitioners waited until January 23, 2002, to inquire about

the significance of the two dates stamped on the notices.     On

that date, petitioner husband inquired of Appeals Officer Dianne

Villa about such significance.    Ms. Villa informed him that he

had only 30 days from the date of the notices to appeal to the

Tax Court and that the February 16 date was probably an internal
                               - 4 -

follow up date inadvertently placed on the notices by

respondent’s records unit (which fact Ms. Villa later confirmed).

      On February 19, 2002, the Court received and filed a

petition dated February 15, 2002, in which petitioners seek

review of respondent’s determination, which they identify in the

petition as “the Notice of Determination dated 2-16-2002".

                              OPINION

I.   Introduction

      Section 6330 accords taxpayers the right to notice and the

opportunity for a hearing before the Commissioner can proceed

with the collection of taxes by way of a levy on property or

rights to property.   Sec. 6330(a).    The hearing is to be held by

the Internal Revenue Service Appeals Office.    Sec. 6330(b)(1).

When the Appeals Office issues a determination letter to the

taxpayer following the required hearing, section 6330(d)(1)

provides that the taxpayer has 30 days following the issuance of

such determination letter to file a petition for review with the

Tax Court or, if the Tax Court lacks jurisdiction over the

underlying tax liability, with a Federal District Court.     This

Court’s jurisdiction under section 6330(d) is dependent upon the

issuance of a valid determination letter and the filing of a

timely petition for review.   Rule 330(b); Offiler v.

Commissioner, 114 T.C. 492, 498 (2000).
                                - 5 -

      There is no question that the petition was not filed within

the 30-day period prescribed by section 6330(d)(1) for requesting

judicial review of an adverse determination made under section

6330.   On that basis, respondent asks that we grant the motion.

Petitioners object, and they ask us to deny the motion on the

basis that they “justifiably relied upon the [February 16] date

clearly marked on Respondent’s Notice of Determination”.    In

support of their objection, petitioners argue that the February

16 date is “located in the same general area and format as other

letters and notices issued by Respondent”.    To illustrate their

point, they attach to their brief a copy of a notice of

deficiency where, in the upper right hand corner, a date appears

under the words “Last Date to Petition Tax Court”.

II.   Discussion

      While we question our authority to lengthen the period fixed

by section 6330(d)(1), see discussion infra, we first address

petitioners’ claim that the equities of the situation favor them.

      The notices were mailed and clearly dated December 18, 2001,

and were received by petitioners on December 20, 2001.    Moreover,

the notices specifically warned that any petition for a

redetermination must be filed “within 30 days from the date of

this letter” and that “[t]he courts cannot consider your case if

you file late.”    Although, on a notice of deficiency, a second

date (in addition to the “Letter Date”) appears under the words
                               - 6 -

“Last Date to Petition the Tax Court”, here the second date

appeared in close proximity to the words “In Re:    Due Process

Appeal (Tax Court)”.   A determination letter triggering a

taxpayer’s right to appeal to the Tax Court pursuant to section

6330(d)(1), unlike a notice of deficiency triggering a taxpayer’s

right to petition the Tax Court to redetermine a deficiency

pursuant to section 6213(a), need not show the last day on which

the taxpayer may file an appeal.   Cf. Rochelle v. Commissioner,

116 T.C. 356 (2001), affd. 293 F.3d 740 (5th Cir. 2002).

Although the appearance of the February 16 date may have been

confusing to the petitioners, we disagree with their

characterization of such date as demonstrating that “[t]he Notice

on its face clearly states that the Due Process Appeal to the Tax

Court is [due] February 16, 2002.”     The Notices do no such thing,

particularly in light of their clear admonition that, to be

effective, the petition must be filed with the Tax Court within

30 days “from the date of this letter.”

     When they received the notices, on December 20, 2001,

petitioners had 28 days in which to either clarify that the 30-

day period ran from December 18, or file a protective petition

with this Court pending later clarification of the due date.

Instead, they waited until January 23, 6 days after the 30-day

period had expired, to seek clarification.    Under the

circumstances, the equities of the situation do not favor them.
                               - 7 -

We agree with respondent that “petitioners’ allegations that they

relied upon the second date stamp of ‘February 16, 2002' are

self-serving and lack merit when viewed under the totality of

circumstances”.

     Moreover, statutory periods are jurisdictional and cannot be

extended.   McCune v. Commissioner, 115 T.C. 114, 117 (2002);

Joannou v. Commissioner, 33 T.C. 868, 869 (1960).    See also In re

Smith v. United States, 96 F.3d 800, 802 (6th Cir. 1996), in

which the Court of Appeals for the Sixth Circuit (the court to

which an appeal from this decision would lie) noted that it has

been “rather consistent in denying ‘equitable’ pleas to disregard

the strict timing rules of the Tax * * * [Code]”, and United

States v. Brockamp, 519 U.S. 347 (1997), in which the Supreme

Court refused to permit equitable tolling of the limitations

period on income tax refund claims.    Here, there is no basis to

even consider whether equitable relief might be appropriate.    The

notices were clearly dated December 18, 2001, and were received

by petitioners on December 20, 2001.   Petitioners could have

resolved any confusion that might have been caused by the

February 16, 2002, date stamp simply by contacting the Internal

Revenue Service upon their receipt of the notices, or during the

ensuing 28-day period, at the contact telephone number provided

on the notices themselves.   Their failure to do so has resulted
                                   - 8 -

in an untimely petition and a resulting inability to invoke the

jurisdiction of this Court under section 6330(d).

III.    Conclusion

       Because of petitioners’ failure timely to file a petition,

we have no jurisdiction to review the notices.

       To reflect the foregoing,


                                                An appropriate order of

                                           dismissal for lack of

                                           jurisdiction will be entered.
