                  T.C. Memo. 2007-32



                UNITED STATES TAX COURT



             DAVID BUFFANO, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 11281-06L.           Filed February 8, 2007.




     R filed a motion to dismiss P’s collection review
action directed at R’s effort to levy upon P’s
property. R argued lack of jurisdiction due to P’s
untimely request for an Appeals Office hearing. P
argued that he did not timely receive notice of R’s
intent to levy.

     1. Held: R’s motion to dismiss for lack of
jurisdiction on the ground that P made an untimely
hearing request will be denied.

     2. Held, further: No valid final notice of
intent to levy was issued because the notice was not
mailed to P’s last known address.

     3. Held, further: This case will be dismissed
for lack of jurisdiction because no valid final notice
of intent to levy was issued to P.
                                 - 2 -


     David Buffano, pro se.

     Brian A. Press, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     ARMEN, Special Trial Judge:     This collection review case is

before the Court on respondent’s Motion to Dismiss for Lack of

Jurisdiction.    Respondent moves to dismiss on the ground that no

notice of determination was sent to petitioner for 2000 and 2001,

the taxable years in issue.    In contrast, petitioner contends

that no valid final notice of intent to levy was ever sent to him

at his last known address, nor did he receive one.      In this

context, the Court lacks jurisdiction.      The sole issue for

decision is the basis of the Court’s dismissal of this case.

                           FINDINGS OF FACT

     At the time the petition was filed, petitioner resided at

635 N. 2250 East Road in Milford, Illinois.      He currently lives

in Colfax, Illinois.

     Petitioner has not filed a Federal income tax return since

he filed for the taxable year 1999.      Petitioner’s 1999 return

listed “84 Sterling Circle, Apt. 303, Wheaton, Illinois” as his

mailing address (the Wheaton address).

     After some moving around and having notified the U.S. Postal

Service (Postal Service) of his various changes of address,

petitioner lived in Milford, Illinois, at the aforementioned
                               - 3 -

address for several years.1   As of March 2005, petitioner had

lived at this address in Milford for some time.

     On March 5, 2005, respondent’s Kansas City Service Center

mailed three letters to petitioner.    The letters, however, were

not all sent to the same address.

     Relying on information available to it, the Kansas City

Service Center’s Automated Collection Service (ACS) sent the

first letter to petitioner at “635 N 2250 EAST ROADPT [sic]

303[,] MILFORD IL”.   Despite the errors in the address,

petitioner received this letter not long after it was mailed, and

we shall refer to this address (and its correct counterpart, 635

N. 2250 East Road) as the Milford address.   This first letter was

entitled “We Have No Record of Receiving Your Tax Returns” and

concerned the taxable year 2002.

     The second letter, mailed by respondent’s Kansas City

Service Center’s ACS to petitioner at the (incorrectly typed)

Milford address, was also received not long after it was mailed.

This second letter requested petitioner’s telephone number and




     1
        The Postal Service will forward mail to a new address for
approximately 12 months, though a permanent change of address
form remains on file with the Postal Service for 18 months. See
www.usps.com. The Postal Service’s National Change of Address
database retains change of address information for 36 months.
See www.usps.com; sec. 301.6212-2(b)(2)(i), Proced. & Admin.
Regs.
                               - 4 -

again referenced petitioner’s failure to file his 2002 Federal

income tax return.

     The third letter sent on March 5, 2005 by the Kansas City

Service Center’s ACS to petitioner was mailed to “84 STERLING

PIRCLE [sic] APT 303[,] WHEATON, IL”, an incorrectly typed

version of the Wheaton address.   This third letter was a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing

(final notice) with respect to petitioner’s Federal income tax

liabilities for the taxable years 2000 and 2001.   These

liabilities, determined on the basis of substitutes for return

since petitioner did not file returns for those years, were

assessed after petitioner failed to commence an action for

redetermination pursuant to section 6213(a).2   The final notice

listed outstanding liabilities in the aggregate amount of some

$19,000 and notified petitioner of his right to an administrative

hearing.   Petitioner never received the final notice, and it was

returned to respondent as undeliverable by the Postal Service on

April 8, 2005.

     On June 30, 2005, respondent issued a notice of levy to

petitioner’s employer, Napleton’s River Oaks Cadillac in Chicago,

Illinois, where petitioner was employed as a commission-based




     2
        Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 5 -

automobile mechanic.   It was his employer’s receipt of the notice

of levy that first brought the levy to petitioner’s attention.

     On July 19, 2005, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing (hearing request).

It was received by respondent 136 days after the issuance of the

final notice.   Petitioner’s hearing request listed his address as

the Milford address.

     An Appeals officer scheduled an equivalent hearing by

telephone with petitioner for October 28, 2005, but petitioner

did not appear.3

     In May 2006, the Appeals Office issued a Decision Letter

Concerning Equivalent Hearing Under Section 6320 and/or 6330 of

the Internal Revenue Code (decision letter) to petitioner,

stating that the levy was appropriate and that petitioner did not

have the right to appeal the decision because, not having filed a

timely hearing request, he had been granted only an equivalent

hearing.   That letter was mailed to the Milford address.

     In June 2006, petitioner filed a petition with this Court

seeking to commence a lien or levy action under section




     3
        Petitioner did write to respondent’s Appeals Office to
reschedule the Oct. 28 telephone conference but, despite the fact
that he had almost a month in which to accomplish the task, chose
to wait until Oct. 25 to draft a letter requesting the
rescheduling of the conference. The letter did not reach the
Appeals officer until Nov. 2.
                                 - 6 -

6330(d)(1).   Respondent filed a Motion to Dismiss for Lack of

Jurisdiction on August 7, 2006.

     An evidentiary hearing took place in Chicago, Illinois.

                                OPINION

     The Tax Court is a court of limited jurisdiction, and we may

exercise that jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 85 T.C. 527, 529 (1985).     The

Court’s jurisdiction under sections 6320 and 6330 depends upon

the issuance of a valid notice of determination and the filing of

a timely petition for review.     See Orum v. Commissioner, 123 T.C.

1 (2004), affd. 412 F.3d 819 (7th Cir. 2005); 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).    Thus, in the absence of a

notice of determination, this Court lacks jurisdiction.

Respondent did not issue a notice of determination in respect of

petitioner’s outstanding tax liabilities for 2000 and 2001.      A

decision letter resulting from an equivalent hearing concerning a

collections issue is insufficient to invoke the Court’s

jurisdiction under section 6320 or 6330.     Moorhous v.

Commissioner, supra at 270-271; Kennedy v. Commissioner, 116 T.C.

255, 263 (2001); Cowan v. Commissioner, T.C. Memo. 2006-255, on

appeal (9th Cir., Jan. 29, 2007); cf. Craig v. Commissioner, 119

T.C. 252 (2002).   However, as relevant herein, a necessary
                               - 7 -

predicate for the issuance of a notice of determination is the

issuance of a final notice of intent to levy sent to the taxpayer

at the taxpayer’s last known address.    See sec. 6330(a)(2)(C).

Accordingly, in this context, the Court does not have

jurisdiction to hear petitioner’s case, and only the proper basis

for dismissal is to be decided.

      Respondent argues that the Court lacks jurisdiction because

petitioner filed his hearing request outside the 30-day time

period permitted by statute; dismissal on this ground would allow

respondent to levy upon petitioner’s property to satisfy his

long-outstanding Federal tax liabilities.    On the other hand,

petitioner argues that he never received a valid final notice of

intent to levy; dismissal on that ground would invalidate the

notice of levy.   See Kennedy v. Commissioner, supra at 261.

A.   Petitioner’s Hearing Request

      Taxpayers must submit a written request for an

administrative hearing with respect to a final notice issued

under section 6330 within the 30-day period commencing the day

after the date of the final notice.    Sec. 6330(a)(3)(B); sec.

301.6330-1(b)(1), Proced. & Admin. Regs.    A taxpayer who makes an

untimely request for a hearing is not entitled to one but rather

receives an “equivalent hearing” instead.    See Kennedy v.

Commissioner, supra at 263; sec. 301.6330-1(i)(1), Proced. &

Admin. Regs.
                               - 8 -

      Because his hearing request was made beyond the 30-day

period, petitioner was granted an equivalent hearing for the

taxable years 2000 and 2001.   See sec. 301.6330-1(i)(1), Proced.

& Admin. Regs.   The result of an equivalent hearing is a decision

letter, not a notice of determination, and the distinction is

critical; a decision letter does not constitute a notice of

determination under section 6330(d)(1) which would provide a

basis for petitioner to invoke the Court’s jurisdiction.   See

Moorhous v. Commissioner, supra at 270; Kennedy v. Commissioner,

supra at 263.

B.   The Final Notice of Intent To Levy Was Not Sent to Petitioner
     at His Last Known Address

      Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by way of a levy upon the person’s property.

Section 6331(d) provides that, at least 30 days before proceeding

with enforced collection by way of a levy on a person’s property,

the Secretary is obliged to provide the person with a final

notice of intent to levy, including notice of the administrative

appeals available.   See sec. 6330; Davis v. Commissioner, 115

T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179

(2000).

      The notice of intent to levy must be given in person, left

at the person’s dwelling or usual place of business, or sent by
                                   - 9 -

certified or registered mail to the person’s last known address.

Secs. 6330(a)(2), 6331(d)(2); secs. 301.6330-1(a),

301.6331-2(a)(1), Proced. & Admin. Regs.       Here, the final notice

was not sent to petitioner at his last known address, nor did he

receive it, and therefore it is invalid.

        Section 301.6212-2(a) and (b) of the Proced. & Admin. Regs.

applies to all notices and documents whenever the term “last

known address” is used.4      Sec. 301.6212-2(c), Proced. & Admin.

Regs.       The regulation provides the general rule:

     a taxpayer’s last known address is the address that appears
     on the taxpayer’s most recently filed and properly processed
     Federal tax return, unless the Internal Revenue Service
     (IRS) is given clear and concise notification of a different
     address.

Sec. 301.6212-2(a), Proced. & Admin. Regs; see also Kennedy v.

Commissioner, supra at 260 n.4; Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. 367, 374 (1974), affd. without published

opinion 538 F.2d 334 (9th Cir. 1976); Taylor v. Commissioner,

T.C. Memo. 1990-559 (citing Abeles v. Commissioner, 91 T.C. 1019,

1025 (1988)).       With this definition alone, it would seem as if

the Wheaton address, the one on petitioner’s last-filed and

properly processed return, were petitioner’s last known address.

However, the regulation goes on to explain that the Internal



        4
        As any appeal of this case lies to the Court of Appeals
for the Seventh Circuit, it is that court’s interpretation of the
rules that we use as a guidepost when interpreting the regulation
and relevant caselaw.
                               - 10 -

Revenue Service will update the taxpayer addresses in its records

by using information retrieved from the Postal Service’s National

Change of Address database and will use the Postal Service

database address until a taxpayer either files a return with a

different address or provides the IRS with clear and concise

notice of a change of address.    See sec. 301.6212-2(b)(2),

Proced. & Admin. Regs.   Petitioner notified the Postal Service of

his move to the Milford address.    In light of all of the facts

and circumstances present in this case, we find that his last

known address was the Milford address.

     A ‘last known address’ is precisely that; if * * * [the
     Commissioner] * * * knows of one address for a taxpayer and
     is then notified of another address for the same taxpayer,
     such other address supersedes the previous address and
     becomes, as far as [the Commissioner] is concerned, that
     taxpayer’s ‘last known address’ * * *.

Abeles v. Commissioner, supra at 1030.     A taxpayer can have only

one last known address on a given date.     Id.   On March 5, 2005,

that address for petitioner was the Milford address.

     An inquiry into a taxpayer’s last known address is based on

the relevant facts and circumstances.    See O’Brien v.

Commissioner, 62 T.C. 543, 550 (1974); Lifter v. Commissioner, 59

T.C. 818, 821 (1973).    If the Government has become aware of a

change of address, the Commissioner may not rely on the address

listed on the last-filed tax return but must exercise reasonable

care to discern the taxpayer’s correct address.     See, e.g., Pyo

v. Commissioner, 83 T.C. 626 (1984).     It is important to examine
                               - 11 -

what information was available to the Commissioner at the time

the notice was mailed.    See Eschweiler v. United States, 946 F.2d

45, 48 (7th Cir. 1991).    In other words, what is significant is

what respondent knew at the time the notice was issued,

attributing “to respondent information which respondent knows, or

should know, with respect to a taxpayer’s last known address,

through the use of its computer system.”      Abeles v. Commissioner,

supra at 1035.   Here, respondent and his representatives sent

mail concerning petitioner’s taxes to the Milford address on the

very same day they sent the final notice to the Wheaton address.

Respondent clearly had the correct information.

     In McPartlin v. Commissioner, 653 F.2d 1185 (7th Cir. 1981),

the Seventh Circuit found the Commissioner had not mailed a

notice of deficiency to the taxpayers’ last known address

because, inter alia, other correspondence from the IRS had gone

to the taxpayers’ correct address.      The Court of Appeals for the

Seventh Circuit wrote, in 1981, that we live in the age of

“sophisticated computer information storage and retrieval

systems” such that asking the Commissioner to make use of them

“can hardly be deemed to impose an unreasonable burden”.      Id. at

1190 n.8; see also Alta Sierra Vista, Inc. v. Commissioner, 538

F.2d 334 (9th Cir. 1976); Delman v. Commissioner, 384 F.2d 929

(3d Cir. 1967), affg. T.C. Memo. 1966-59; O’Brien v.

Commissioner, supra at 550.    The Court can only imagine that if
                              - 12 -

computer systems 25 years ago were sufficiently robust for the

Seventh Circuit to require some due diligence on the part of the

IRS, any such requirement would be more than applicable today.

See also Abeles v. Commissioner, supra at 1033 (acknowledging, 18

years ago, that “the state of the IRS’s computer capabilities is

such that a computer search of the information retained with

respect to a certain taxpayer, including his or her last known

address, may be performed by respondent’s agent without

unreasonable effort or delay” and would take less than a minute).

     The Seventh Circuit noted that “[a]n innocent taxpayer

should not be penalized because the tax collector neglects to

tell his right hand what his left hand is doing.”   McPartlin v.

Commissioner, supra at 1191 (quoting Crum v. Commissioner, 635

F.2d 895, 900 (D.C. Cir. 1980)).   Although petitioner may not be

the “innocent taxpayer” the Seventh Circuit envisioned, he should

have the benefit of the same procedural safeguards offered to

cooperative taxpayers.

     We hold that the final notice of intent to levy with respect

to petitioner’s 2000 and 2001 outstanding tax liabilities was not

mailed to petitioner’s last known address and is therefore

invalid.   For this reason, this case will be dismissed for lack

of jurisdiction.
                        - 13 -

To reflect the foregoing,


                                 An appropriate order will

                            be entered denying respondent’s

                            motion and dismissing this case

                            for lack of jurisdiction instead on

                            the ground that the final notice

                            was not sent to petitioner at his

                            last known address and is therefore

                            invalid.
