John M. & Patricia M. Lane, Petitioner

IJO

RECORDE D

SERVICE

STAT .

JUDGE

F I T .C . Summary Opinion 2009-1 1

UNITED STATES TAX COURT

JOHN M . AND PATRICIA M . LANE, Petitioners v . COMMISSIONER OF INTERNAL REVENkJE, Respondent Docket No . 15949-07S . Filed January 13, 2009 .

John M . and Patricia M . Lane, pro sese .

Gordon P . Sanz, for respondent .

VASQUEZ, Judge :

This case was heard pursuant to the provisions of section 74631 of the Internal Revenue Code in effect when the petition was filed . Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court, and this opinion shall not be treated as 'precedent for any othe r

I SEW D JAN 13 2[1 W.

case . This case is before the Court, pursuant to Rule 53, on respondent's motion to dismiss on the ground of mootness (respondent's motion) .

Background On August 15, 2005, respondent mailed petitioners a Notic e of Intent to Levy and Your Right to a Hearing Under IRC 6330 regarding their income tax liability for 2002 (levy notice) . On August 18, 2005, the levy notice was delivered to petitioners .

Petitioners submitted to respondent an untimely Form 12153, Request for a Collection Due Process Hearing ., regarding the levy notice . Respondent gave petitioners an equivalent hearing regarding the levy, and respondent issued a Decision Letter Concerning Equivalent Hearing Under Section 6320 and/or 6330 of the Internal Revenue Code (decision letter) to petitioners sustaining the levy for 2002 .

On November 8, 2006, respondent mailed petitioners a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 regarding their income tax liability for 2002 . On November 18, 2006, petitioners timely submitted their hearing reques t regarding the notice of Federal tax lien (NFTL) . Respondent held a section 6330 hearing regarding the NFTL . Respondent's Office of Appeals (Appeals) issued petitioners a Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330 (notice of determination) determining that all legal and procedural requirements were followed prior to filing the NFT L regarding 2002, and that the filing of the NFTL was appropriate .

Petitioners have paid the 2002 tax liability in full , including all penalties and interest . On February 26, 2007 , respondent released the lien .

Petitioners timely filed their petition . At the time the petition was filed, petitioners resided in Texas .

Discussion Section 6320(a)(1) provides that the Secretary shall furnish the person described in section 6321 with written notice (i .e ., the hearing notice) of the filing of a notice of lien under section 6323 . Section 6320(a) and (b) further provides that the taxpayer may request administrative review of the matter (in the form of a hearing) within a 30-day period . The hearing generally shall be conducted consistent with the procedures set forth in section 6330(c), (d), and ( e) . Sec . 6326(c) .

Section 6330(a) provides that the Secretary shall furnish taxpayers with written notice of their right to a hearing before any property is levied upon . Section 63j⁰ further provides that the taxpayer may request administrative review of the matter (i n the form of a hearing) within a prescribed 30-day period . Sec .

6330 (a) and (b) .

Like the taxpayers in Orum v . Commi$sioner , 123 T .C . 1, 11 (2004), affd . 412 F .3d 819 (7th Cir . 2005), petitioners did not timely request a collection hearing in response to the levy notice .

Under the circumstances , respondent was not obliged to conduct a collection hearing pursuant to section 6330 . See Orum v . Commissioner , supra at 11 . As a result , we conclude that the decision in the decision letter is not a determination fo r purposes of section 6330 ( d)(1) . See Orum v . Commissioner , supra at 12 ; cf . Craig v . Commissioner , 119 T . C . 252, 259 (2002) (holding that a decision letter contained a "determination" such that the taxpayer could invoke the Court's jurisdiction because the taxpayer timely requested a section 6330 hearing) .

In place of a section 6330 hearing regarding the levy for 2002, Appeals granted petitioners an equivalent hearing .

Thereafter , Appeals issued a decision letter to petitioners stating that the proposed collection action was sustained . The decision letter does not constitute a notice of determination under section 6330 ( d)(1) that would provide a basis for petitioners to invoke the Court ' s jurisdiction with respect to the levy notice .

See Moorhous v . Commissioner , 116 T .C . 263, 270 (2001 ) ; Kennedy v . Commissioner , 116 T .C . 255, 263 (2001) .

Petitioners timely requested a hearing regarding the NFTL, respondent held a section 6330 hearing regarding the NFTL, and Appeals issued petitioners a notice of determination determining that the filing of the NFTL was appropriate . However, petitioners paid the 2002 tax liability in full ( including all penalties and interest), and on February 26, 2007, responden t released the lien .

Accordingly, this issue is moot . See Greene- Thapedi v . Commissioner , 126 T .C . 1, 7 ( 12006) .

In conclusion , we shall grant respondent's motion . To reflect the foregoing, An appropriate order o f dismissal will be entered .