Doris Lee Newsome, Petitioner

T .C . Memo . 2007-11 1 UNITED STATES TAX COUR T DORIS LEE NEWSOME, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Respondent Filed April 30, 2007 .

MEMORANDUM OPINION

SWIFT,

Judge : This matter is before us on respondent's motions to ismiss for lack of jurisdiction under Rule 53 and for summary ju d ment under Rule 121 .

Unless otherwise indicated, all section references are to the Interna Revenue Code, as amended, and all Rule references are to the ax Court Rules of Practice and Procedure .

SERViD APR 3 0 2007 Respondent's motion to dismiss is based on the contentio n that petitioner's request for a section 6320 Appeals Office hearing was untimely .

Respondent's motion for summary judgment is based on the contention that petitioner has not raised in her petition any appropriate issue .

Background At the time the petition was filed, petitioner resided in Staten Island, New York .

On December 14, 1995, a nontax judgment of foreclosure was entered relating to petitioner's home, and in March of 1996 a foreclosure sale of petitioner's home occurred . On June 10, 1998, petitioner was evicted from a subsequent home and later moved to her current address . At the time, petitioner did not inform respondent of her current address .

For 1996, petitioner did not timely file an individual Federal income tax return .

With wage and discharge of indebtedness income (relating to the above foreclosure sale) reported to respondent by third parties, respondent prepared for petitioner a substitute 1996 individual Federal income tax return reflecting a total tax liability of $24,629 .

Based on the substitute return prepared by respondent, on December 22, 1998, respondent mailed to petitioner (at the home address Irom which petitioner had been evicted in June of 1998) a notice o deficiency relating to petitioner's 1996 Federal income tax liability reflecting the $24,629 tax deficiency . Petitioner states th t she did not receive this notice of deficiency unti l years la t On M y 31, 1999, respondent assessed against petitioner the above $24 629 1996 tax deficiency .

On N vember 16, 1999, respondent mailed to petitioner (again at the ho e address from which petitioner had been evicted in June of 1 98) a section 6330 levy notice relating to the 1996 tax deficienc that respondent had assessed . On November 29, 1999, respondent's levy notice was returned as undeliverable .

On Ju e 17, 2002, respondent mailed to petitioner at petitioner s current address, and petitioner received, a second section 63 0 levy notice relating to petitioner 's 1996 assessed and unpaid $24,629 tax deficiency . In response thereto , petitioner contacted respondent and requested a copy of respondent's notice of deficiency to petitioner for 1996 .

At so e point in June or July of 2002, respondent remailed to petition r, and petitioner received, a copy of respondent's above notic of deficiency to petitioner for 1996 .

On Jun 30, 2002, in response to respondent's June 17, 2002, second levy notice relating to petitioner's 1996 unpaid above tax 4 - deficiency, petitioner requested a section 6330 hearing with respondent's Appeals Office .

Respondent's Appeals Office denied petitioner's request as untimely, but petitioner and respondent's Appeals Office nevertheless conducted what respondent treated as an equivalent hearing wherein petitioner and respondent's Appeals officer discussed the issue as to the taxability of discharge of indebtedness income relating to the 1996 foreclosure sale of petitioner's home and petitioner's 1996 Federal income tax liability . At this hearing, respondent's Appeals Office invited petitioner to file her own 1996 individual Federal income tax return .

On December 23, 2003, respondent mailed to petitioner's current address an adverse decision letter relating to the above hearing . In the letter, the Appeals Office sustained respondent's proposed levy and explained that petitioner had been given an opportunity during the equivalent hearing, and had been requested, to submit to respondent's Audit Reconsideration Program an individual Federal income tax return for 1996 (as well as other overdue individual Federal income tax returns that petitioner had not yet filed) .

Petitioner did not file an action in this Court or in a District Court with regard to respondent's December 23, 2003, adverse decision letter, in which petitioner might have argued that the decision letter should be treated as a notice of determin tion with respect to which judicial review of the underlyi g tax deficiency might have been available . ' ovember 4, 2004, respondent filed a notice of Federa l tax lien (NFTL) relating to the $24,629 tax deficiency agains t petitione for 1996 that respondent had assessed . On Novembe r 2004, re s ondent mailed to petitioner at petitioner's curren t address a section 6320 lien notice relating to the above NFTL, i n which res receipt f om petitioner of a section 6 .320 Appeals Office hearin g request .

In re ponse to respondent's November 5, 2004, lien notice , on Decemb e 8, 2004, petitioner mailed to respondent by overnight mail a r e est for an Appeals Office hearing . On December 9, 2004, resp ndent received petitioner ' s above request .

From anuary to October 2005 , in connection wit h respondent ' s November 4, 2004, NFTL, respondent held an Appeal s 'Argua not maile d 8, 2002, re treated as should have 301 .6330-1( equivalen t ly, if respondent's Nov . 16, 1999, levy notice wa s o petitioner's last known address, petitioner's July uest for an Appeals Office hearing should have been imely, and a regular sec . 6330 Appeals Office hearing been held, not an equivalent hearing . See sec . ), Proced . & Admin . Regs . (explaining when an earing is to be held) .

In Cra decision le been treate determinati Appeals Off g v . Commissioner , 119 T .C . 252 (2002), we treated a ter from an equivalent hearing, which should hav e as a regular sec . 6330 hearing, as a notice o f n for purposes of allowing our review of respondent's ce determination .

6 - Office hearing with petitioner in which petitioner raised only the issue as to the includability in her income of alleged discharge of indebtedness income .

On September 13, 2005, petitioner untimely filed with respondent her 1996 individual Federal income tax return showing a refund due to petitioner .

On October 21, 2005, respondent mailed to petitioner a notice of determination sustaining respondent's NFTL . In the notice of determination, however, respondent's Appeals office explained that respondent's Audit Reconsideration Program is willing to examine petitioner's untimely filed 1996 individual Federal income tax return and to make appropriate adjustments, if any, to petitioner's tax liability as previously determined by respondent .

On November 18, 2005, petitioner timely filed the instant action challenging only respondent's notice of determination sustaining respondent's NFTL relating to the $24,629 1996 tax deficiency respondent had assessed against petitioner . in her petition, petitioner raises only the issue as to the includability in her income for 1996 of discharge of indebtedness income relating to the foreclosure sale of her home .

Discussio n Motion Dismiss for Lack of Juri sdiction Be c a se we may proceed only if we have jurisdiction, Raymond Commis Toner , 119 T .C . 191, 193 (2002), we first addres s responden s motion to dismiss for lack of jurisdiction .

Responden s motion to dismiss is based on alleged untimelines s of petiti ner's request for an Appeals Office hearing relating to responde n 's November 4, 2004, NFTL .

Gene ally, our jurisdiction to review respondent's collectio activity under section 6320 is predicated upo n respondent 's issuance of a notice of determination, a taxpayer's timely fil d petition, and our jurisdiction over the underlying type of to involved .

Andre v . Commissioner , 127 T .C . 68, 7 0 (2006) ; In . Research Associates v . Commissioner, 126 T .C . 183, 187, 191 ( 006) ; Lunsford v . Commissioner , 117 T .C . 159, 161 (2001) ; Of filer v . Commissioner, 114 T .C . 492, 497-498 (2000) ; sec . 301 .6 20-1(f)(1), Proced . & Admin . Regs . 2 Respo ent argues that petitioner on December 8, 2004, more than 30 day after respondent's November 5 lien notice to petitioner, untimely requested the section 6320 Appeals Office hearing and that, due to petitioner's untimely hearing request , 2After and 6330 ar underlying t ype of tax involved . Pension Protection Act of 2006, Pub . L . 109- 280, sec . 855 , 120 Stat . 1019 .

ct . 16, 2 006, determinations made under secs . 6320 appealable only to the Tax Court regardless of the the hearing that was held with . petitioner relating to respondent's NFTL should be treated as an equivalent hearing and that the Court should now treat respondent's October 21, 2005, notice of determination only as a nonreviewable decision letter from an equivalent hearing .

Respondent's argument confuses the period in which a taxpayer may timely request an Appeals Office hearing under section 6320 with the period in which a taxpayer may timely request an Appeals Office hearing under section 6330 . Both periods are 30 days long . However, the start dates for the two 30-day periods are different .

Under section 6320 relating to an NFTL, the 30-day period in which a taxpayer may timely request an Appeals Office hearing begins on the day after the 5th business day after the date on which the NFTL was filed . Sec . 6320(a)(2) and ( 3)(B) ; sec .

301 .6320-1(c)(1) and (2), Q&A-C³, Proced . & Admin . Regs .

Under section 6330 relating to a proposed levy on a taxpayer's property, the 30-day period in which a taxpayer may timely request an Appeals Office hearing begins on the day after the date of mailing by respondent of the proposed levy notice .

Sec . 6330(a)(3)(B) ; Andre v . Commissioner , 127 T .C . at 71 .

Section 301 .6320-1(c)(2), Q&A-C³, Proced . & Admin . Regs ., explains the distinction in these 30-day periods as follows :

Q-C³ . When must a taxpayer request * * * [a n Appals Office] hearing with respect to a * * * [lien not ce] issued under section 6320 ?

A-C³ . A taxpayer must submit a written request for * * * [an Appeals Office hearing under section 632 within the 30-day period that commences the day aft r the end of the five business day period following the filin of the NFTL . Any request filed during the five business day period * * * will be deemed to be file on the first day of the 30-day period . Th e peri d for submitting a written request .for * * * [an Appe is Office] hearing with respect to a [notice] issued under section 6320 is slightly diff rent from the period for submitting a written requ st for * * * [an Appeals Office] hearing * * * unde section 6330 . For a * * * [notice] issued unde r section 6330, the taxpayer must submit a writte n requ st for [an Appeals Office] hearing within the 30- day eriod commencing the day after the date of the [le notice] . [Emphasis added . ] Becau0e respondent filed its NFTL on November 4, 2004, an d because t h 5th business day after November 4, 2004, wa s Novembe r 2004 (not taking into account Saturday, November 6, Sunday, No ember 7, and Veteran's Day November 11, 2004), the 30- day period for petitioner to request an Appeals Office hearing under sect on 6320 began the day after November 12, 2004, an d ended on M day, December 13, 2004 (not taking into account Sunday, Dec mber 12, 2004) . Accordingly, petitioner's December 8, 2004, request for an Appeals Office hearing in connection ith respondent's November 4, 2004, NFTL was timely by 5 days .

Based In the above, we need not address the question as to whether res ndent's Appeals Office's adverse October 21, 2005, notice of determination relating to petitioner's appeal of respondent's NFTL would authorize our jurisdiction to review respondent's adverse determination even if petitioner's request for an Appeals Office hearing were untimely . 3 We deny respondent's motion to dismiss petitioner's petition relating to respondent's November 4, 2004, NFTL .

Motion for Summary Judgmen t When no material fact remains at issue, we may grant summary judgment for the party entitled to judgment as a matter of law .

Rule 121(b) ; Fla . Country Clubs, Inc . v . Commissioner , 122 T .C .

73, 75-76 (2004), affd . on other grounds 404 F .3d 1291 (11th Cir .

2005) .

In deciding whether respondent is entitled to judgment as a matter of law, we view factual inferences in the light most favorable to petitioner .

Speltz v . Commissioner , 124 T .C . 165 (2005), affd . on other grounds 454 F .3d 782 (8th Cir . 2006) .

Generally, a taxpayer who received a valid notice of deficiency for the year in issue or who otherwise had a prior opportunity to dispute the underlying tax liability may not, in a subsequent section 6320 Appeals office hearing and in subsequen t 'In Kim V . Commissioner , T .C . Memo . 2005-96, respondent's improper issuance of a notice of determination, instead of a decision letter that should have been issued in connection with an untimely request for a sec . 6330 hearing, served as the basis for our jurisdiction .

related 1 tigation in . this Court, challenge the underlying tax liability . Secs . 6320(c), 6330(c)(2)(B) ; Lewis v . Commissioner , 128 T .C . , - (2007) (slip op . at 24) ; Sego v . Commissioner , 114 T .C . 04, 610-611 (2000) ; Goza v . Commissioner , 114 T .C . 176, 182-183 (2000) ; sec . 301 .6320-1(e)(1), Proced . & Admin . Regs .

Thus, where a taxpayer has received a prior lien or levy notice and r section 6320 or section 6330 which could have been appealed t respondent's Appeals Office, relating to the same year and t e same underlying tax liability as is involved in a subsequent lien or levy notice, the taxpayer is treated with regard to he subsequent lien or levy notice as already having had a prio opportunity to dispute the underlying tax liability .

Sec . 301 .6 20-1(e)(3), Q&A-E², Q&A-E⁷, Proced . & Admin . Regs .

Secti n 301 .6320-1(e)(3), Q&A-E², Proced . & Admin . Regs ., explains a follows :

An op rtunity to dispute a liability includes a prior opportunity for a conference with Appeals that was offere either before or after the assessment of the liability .

After equesting and receiving a copy of respondent's notice of deficien y, at petitioner's equivalent hearing with respondent' Appeals office relating to respondent's June 17, 2002, secon levy notice, petitioner discussed and disputed with respondent' Appeals Office her alleged discharge of indebtedness income and her underlying 1996 individual Federal income tax liability .

Petitioner argues that she did not receive respondent's notice of deficiency in December of 1998 and therefore that she now should be able to contest her 1996 underlying Federal income tax liability . Even if respondent improperly mailed the notice of deficiency, and even if petitioner did not receive the notice of deficiency when it originally was mailed to her, when petitioner participated in the Appeals Office equivalent hearing relating to respondent's June 17, 2002, second levy notice, petitioner did have an opportunity to, and in fact did, discuss and dispute with respondent's Appeals Office her underlying tax liability . Accordingly, petitioner may not now, in connection with respondent's November 4, 2004, NFTL, contest that underlying tax liability .

Because petitioner raises no other arguments relating to the NFTL, we shall grant summary judgment in favor of respondent relating to respondent's November 4, 2004, NFTL and respondent's October 21, 2005, notice of determination .

For the reasons stated, we shall deny respondent's motion to dismiss, and we shall grant respondent's motion for summary judgment .

An appropriate order wil l be entered .