                         T.C. Memo. 2007-117



                       UNITED STATES TAX COURT



LYNNE M. SMITH, Petitioner, AND STANLEY J. SMITH, Intervenor v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8644-05.                Filed May 9, 2007.



     Philip J. Vecchio, for petitioner.

     Stanley J. Smith, pro se.

     John R. Mikalchus, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

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

motion).   Respondent filed respondent’s motion after the Court

issued Billings v. Commissioner, 127 T.C. 7 (2006), and before

Congress enacted the Tax Relief and Health Care Act of 2006
                                - 2 -

(Act).   We shall grant respondent’s motion.

                             Background

     In support of respondent’s motion, respondent relies on

Billings v. Commissioner, supra, in which the Court held that it

lacks jurisdiction under section 6015(e)1 to review a determina-

tion under section 6015(f) where no deficiency has been asserted.

     Stanley J. Smith, intervenor in this case, filed a response

to respondent’s motion in which he indicated that respondent’s

motion should be granted.

     Petitioner filed a response to respondent’s motion (peti-

tioner’s response) in which she indicated that respondent’s

motion should be denied.    In support of her position, petitioner

argued in petitioner’s response that “Billings is not wholly

dispositive of this proceeding.”   That is because, according to

petitioner, respondent made a wrongful levy with respect to her

taxable years 1998 and 2002, and “the Tax Court has jurisdiction

to address wrongful levy refund claims and equitable relief under

Internal Revenue Code section 6330.”

     About five months after the Court issued its opinion in

Billings v. Commissioner, supra, Congress passed the Act.   The

Act amended section 6015(e)(1) to provide that the Court may

review respondent’s denial of relief under that section in any



     1
      All section references are to the Internal Revenue Code in
effect before its amendment by the Act.
                               - 3 -

case where an individual requested relief under section 6015(f).

Tax Relief and Health Care Act of 2006, Pub. L. 109-432, div. C,

sec. 408(a), 120 Stat. 2922, 3061.     That amendment applies “with

respect to liability for taxes arising or remaining unpaid on or

after the date of the enactment of this Act.”     Id. sec. 408(c),

120 Stat. 3062.   The date of enactment of the Act was December

20, 2006.

     On January 10, 2007, the Court issued an Order (January 10,

2007 Order) in which it directed each party to address the

Court’s jurisdiction in this case in light of the amendment that

the Act made to section 6015(e)(1).

     Respondent filed a response to the Court’s January 10, 2007

Order (respondent’s response to the Court’s Order) in which

respondent stated in pertinent part:

          4. The balance of tax due for taxable years 1998
     and 2002 was paid on April 27, 2006 pursuant to a levy
     issued to Anthony Arcodia, Jr., an attorney who was
     holding in escrow the proceeds of the sale of the
     former residence of the petitioner and the intervenor.

          5. The tax liabilities, including interest and
     penalties, for which petitioner is seeking relief
     pursuant to I.R.C. § 6015(f) were both fully paid on
     April 27, 2006, which date is prior to the enactment of
     the Act. Thus, the liabilities at issue did not remain
     unpaid as of the date of enactment. As a result, the
     amendments to I.R.C. § 6015(e) made by the Act * * * do
     not apply to the present case. Because the amendments
     do not apply, I.R.C. § 6015(e) as it existed before the
     amendments and the law concerning that statute apply to
     the present case.

          6. Before the amendments, I.R.C. § 6015(e), by its
     terms, only granted the Tax Court jurisdiction “[i]n the
                              - 4 -

     case of an individual against whom a deficiency has been
     asserted.”

        *       *       *       *       *       *       *

          8. In this case respondent has not determined a defi-
     ciency for the years at issue. Therefore, respondent re-
     spectfully states that the Tax Court lacks jurisdiction over
     this case.

     On February 28, 2007, petitioner filed a response to the

Court’s January 10, 2007 Order (petitioner’s response to the

Court’s Order) in which petitioner stated in pertinent part:

     the question in the case at hand is whether or not the
     liability for taxes remains unpaid on the date of
     enactment of the Tax Relief and Health Care Act of
     2006. Petitioner maintains that the liability for
     taxes remains unpaid on the date of enactment because
     Respondent’s levy of escrow funds was wrongful, Peti-
     tioner was denied collection due process, and Peti-
     tioner has timely filed a demand to have the levied
     funds restored to the escrow account * * *

     On April 4, 2007, respondent filed a reply to petitioner’s

response to the Court’s Order (respondent’s reply) in which

respondent stated in pertinent part:

          5. First, respondent was not prohibited from
     pursuing collection action in this case under I.R.C. §
     6015. The restrictions on collection action while a
     claim for relief under I.R.C. § 6015 is pending with
     this Court, imposed by I.R.C. § 6015(e)(1)(B) (as in
     effect at the time of the levy), only apply to requests
     for relief under I.R.C. § 6015(b) or (c). Because
     petitioner was requesting relief pursuant to I.R.C. §
     6015(f), respondent was not prevented from pursuing
     collection action to collect the tax liabilities in
     this case.

          6. Second, in a stand-alone case such as this,
     where jurisdiction is predicated on I.R.C. § 6015(e),
     the only issue is whether petitioner is entitled to
     relief under I.R.C. § 6015. Block v. Commissioner, 120
                         - 5 -

T.C. 62, 64-5 (2003). Therefore, petitioner cannot
raise the validity of the levy in this case.

     7. Thus, as argued in detail in Respondent’s
Response to the Court’s Order dated January 10, 2007,
the Court does not have jurisdiction in this case
because (1) the amendments made by the Act do not apply
to this case because the liabilities at issue were
full[y] paid prior to the effective date; and (2) the
Court lacks jurisdiction under former I.R.C. § 6015(e)
because respondent did not determine a deficiency
against petitioner. * * *

     8. Even assuming, arguendo, that the Court can
consider the validity of the levy, the levy was valid.

   *       *       *       *       *       *       *

     11. More specifically, on February 7, 2006,
Revenue Officer Ebenhoch issued Letter 1058A, “Final
Notice - Notice of Intent to Levy and Notice of Your
Right to a Hearing” (hereinafter referred to as the
“CDP notice”), by certified mail to petitioner at 12
Oxford Road, Slingerlands, New York 12159. * * *
This letter constituted petitioner’s Collection Due
Process notice for a proposed levy action to collect
the outstanding joint tax liabilities for the 1998
* * * and 2002 tax years. Revenue Officer Ebenhoch
also mailed a copy of the CDP notice to petitioner’s
attorney, Philip J. Vecchio. * * *

      12. On February 15, 2006, Revenue Officer
Ebenhoch received the return receipt from the CDP
notice indicating that the notice had been accepted for
delivery. According to the return receipt, it was
signed by Lynn [sic] M. Smith on February 14, 2006.
* * *

     13. On March 28, 2006, Revenue Officer Ebenhoch
issued a Notice of Levy to Anthony Arcodia, Jr. to levy
on the escrow funds. * * *

     14. On April 27, 2006, Revenue Officer Ebenhoch
received two checks from Anthony Arcodia, Jr. totaling
$68,597.57. Of this amount, $50,537.97 was applied to
fully pay the joint balances due for the 1998, 2001,
and 2002 tax years of the petitioner and the inter-
venor. * * *
                              - 6 -


          15. In Petitioner’s Response [to the Court’s
     Order], petitioner states in paragraph 5 that respon-
     dent issued a “notice of levy” against an escrow ac-
     count on February 7, 2006. As evidenced by the preced-
     ing discussion, the CDP notice was issued on this date
     while the Notice of Levy was issued on March 28, 2006.

          16. Petitioner had 30 days from the issuance of
     the CDP notice in which to request in writing a collec-
     tion due process hearing with respondent’s Office of
     Appeals. I.R.C. §§ 6330(a)(2) and (b)(1); Treas. Reg.
     § 301.6330-1(c)(2)(Answer C-1).

          17. Respondent has no record of petitioner filing
     Form 12153 or any other written request with respondent
     requesting a collection due process hearing within 30
     days after the mailing of the CDP notice. Exhibit D to
     Petitioner’s Response [to the Court’s Order] indicates
     that counsel for petitioner first contacted Revenue
     Officer Ebenhoch on March 29, 2006, which date was more
     than 30 days after the issuance of the CDP notice.
     Moreover, counsel for petitioner states in paragraph 9
     to Petitioner’s Response [to the Court’s Order] that he
     contacted respondent’s Appeals Officer Estelle Gottlieb
     on March 30, 2006. He states in paragraph 10 that “by
     virtue of this latter request of Ms. Gottlieb, Peti-
     tioner’s Counsel intended that a hearing be held with
     respect to the Notice of Levy.” Again, this contact
     date occurred more than 30 days after the mailing of
     the CDP notice. Thus, even if petitioner is construed
     to have informally made a request for a collection due
     process hearing pursuant to this contact, said request
     was not timely and petitioner was not entitled to a
     hearing.

                           Discussion

     The amendment to 6015(e)(1) that the Act made applies only

“with respect to liability for taxes arising or remaining unpaid

on or after”, Tax Relief and Health Care Act of 2006, Pub. L.

109-432, div. C, sec. 408(c), 120 Stat. 2922, 3062, December 20,

2006, the date of the enactment of the Act.   Petitioner admits
                               - 7 -

that, pursuant to a levy issued to Anthony Arcodia, Jr. (Mr.

Arcodia), an attorney who was holding in escrow the proceeds of

the sale of the former residence of petitioner and the inter-

venor, Mr. Arcodia paid on April 27, 2006, the liability for tax

with respect to, inter alia, each of petitioner’s taxable years

1998 and 2002.   Although petitioner makes various claims in

petitioner’s response to the Court’s Order that that levy was

unlawful, the fact remains that there was no liability for tax

for petitioner’s taxable year 1998 or her taxable year 2002 that

remained unpaid on or after December 20, 2006, the date of the

enactment of the Act.2

     We hold that the amendment to section 6015(e)(1) that the

Act made does not apply in the instant case.   We further hold

that we do not have jurisdiction over the instant case to deter-

mine whether petitioner is entitled to relief under section

6015(f) where no deficiency has been asserted with respect to

petitioner’s taxable year 1998 or her taxable year 2002.   Bill-

ings v. Commissioner, 127 T.C. 7 (2006).



     2
      Assuming arguendo (1) that we had the authority in the
instant case to determine whether the levy issued to Mr. Arcodia
was valid and (2) that we were to determine that that levy was
invalid, the fact nonetheless remains that there was no liability
for tax for petitioner’s taxable year 1998 or her taxable year
2002 that remained unpaid on or after Dec. 20, 2006, the date of
the enactment of the Act. That would be true even if petitioner
were entitled to a refund of the amount that Mr. Arcodia paid on
Apr. 27, 2006, with respect to the tax liability for each of
those years.
                            - 8 -

To reflect the foregoing,


                                    An order granting respondent’s

                            motion to dismiss for lack of ju-

                            risdiction will be entered.
