Kenneth Davis, Petitioner

T .C . Memo . 2008-23 8 UNITED STATES TAX COUR T KE NETH DAVIS, Petitioner v . COMMISSION R OF INTERNAL REVENUE, Responden t Docket No . 1654 0 -08 .

Filed October 27, 2008 .

On Jan . 24, Letter" requirin withholding . On deficiency for 2 alia, a motion t Held : In t collection for 2 that year .

2008, .R sent P's employer a "Lock-in g a prospective adjustment .to P' s June 23, 2008, R sent P a notice of 004 . On July 7, 2008, P filed, inter o restrain assessment and collection . he absence of any ass'essment .or 004, there is nothing to restrain as t o Held , further, R's "Lock-in Letter " is not a collection actio 6330, I .R .C .

n within the meaning of secs . 6320 an d Held , furt er, P's motion to restrain shall be denied .

Kenneth Da~ is, pro se .

Mark Cottrell and Shannon E . Loechel , for respondent .

SERVED OCT 2 7 2000

MEMORANDUM OPINION

ARMEN, Special Trial Judge : This case is before'the Cour t on petitioner's Motion To Restrain Assessment Or Collection An d To Order Refund Of Amount Collected, filed July 7, 2008 . As explained" in greater detail below, we shall deny petitioner's motion .

Background The facts necessary to a resolution of the motion before us may be summarized as follows :

By notice of deficiency dated June 23, 2008, respondent determined a deficiency in petitioner's Federal income tax for 2004 of $6,074, together with additions to tax under sections 6651 (a) (1) , 6651 (a) (2) , and 6654 (a) . 1 The deficiency in tax is based principally on respondent's determination that petitioner, an employee of the United States Postal Service, failed to report on an income tax return for 200 4 wages received in that year of $45,219 .2 The addition to tax under section 6651(a)(1) is based on respondent's determination that petitioner failed to file an income tax return for 2004 .

determination that petitioner failed to report interest income of $80 paid to him in 2004 by the Atlanta Postal Credit Union .

The addition to tax u der section 6651(a)(2) and the addition to tax under section 6654(a) are based on . respondent's determinations that petitioner failed to pay income tax and estimated tax, respectively, except for .$284-of .tax withheld from his wages by his employer . 3 On July 7, 2008, petitioner filed a petition with this Court .4 Petitioner a tached only one document to his petition as an exhibit, namely, a complete copy of the June 23, .2008 notice of deficiency However,' petitioner did not check the b,ox(cid:127) indicating that he was-disputing the notice, of deficiency .

Rather, petitioner ch cked the box indicating that he was disputing an IRS noti e of determination concerning collectio n action . In that rega d, petitioner referenced (but did not attach) an IRS notice dated January 24, 2008 . Petitioner then .

alleged in paragraphs 5 and 6, the sole substantive paragraphs of the petition, as foll ws :

5 . Respondent has issued a withholding order against Petitioner witho t first sending Petitioner a-Final, Notice of Intent to Levy and Notice of Your Right to a Hearing '("Final N tice) Petitioner is forced to petition this Ta Court to restrain this unlawful collection . No ox was .available for [sic] this for m .3 In the notice of deficiency, respondent credited petitioner for the amount withheld from his wages insofar as his ultimate tax liability is concerned . . However, we note that the determination of a .s atutory deficiency does not take such withheld amount into account . See sec : 6211(b)(1) .

6 . On January 2 [sic], 2008, the IRS sent a levy to Petitioner's employer, United States Postal Service without first issuing a Final Notice to Petitioner, which would have afforded Petitioner the opportunity t o request for [sic] a Collection Due Process .(CDP) Hearing . Respondent NEVER sent Petitioner a Final Notice, which would have provided Petitioner the opportunity to request for [sic] a Collection Due Process Hearing . There is no regulation found in the Internal Revenue Code authorizing this unlawful . collection action . This collection action is in direct violation of Section 6330 and 6331 of the Internal Revenue Code . [Emphasis in the original . ] Concurrently with the filing of petition on July 7, 2008, petitioner filed the Motion To Restrain Assessment Or Collection And To Order Refund Of Amount Collected presently pending befor e us .

We shall describe-petitioner's motion and what lies behind it, but first we must observe that respondent has not, at any time, made an assessment against petitioner for either the deficiency in tax or any of the additions to tax determined in the June 23, 2008 notice of deficiency .' Indeed, petitioner's account balance plus accruals for 2004, signifying his liabilit y ' Cf . sec .

( permitting jeopardy assessments of income tax notwithstanding the provisions of sec . 6213 ( a)) . Lest there Respondent has made no assessment against be doubt, we repeat : petitioner for 2004 .

68.61 i:I for that year as refl cted on respondent's records, is zero .6'= Thus, in the absence 4f any account balance or accruals .for 2004 , respondent has had . no reason to attempt, and has not attempted, .to collect any liab'i'l ' ty for that year as no such liability ' has arisen to date . -Simi arly, in the absence, of any account-balance or accruals for 2004, respondent has had no reason to file, and has not filed, a notice of Federal tax lien for that year . In short, respondent has taken-no collection action~whatsoever .in respect of whatever p tential liability petitioner may ultimately have for 2004 as dete mined by respondent in the notice o f deficiency .

Returning now to petitioner's motion to restrain, we observ e .that petitioner's motion is solely focused on a letter dated January 24, 2008, that was sent by respondent to petitioner's employer . The letter directed the employer to henceforth disregard the information on petitioner's Form W-4, Employee'-s Withholding Allowance Certificate, and instead withhold income tax on the basis of a specified martial status and a specified number of withholding allowances . This type of letter i s popularly known-either as .a "Lock-in Letter" or (reflecting : its form number) as Letter 2800C .

Although petitioner's motion purports to include as an exhibit a copy of the January 24, 2008 Lock-in Letter, the motion does not include any such exhibit, and a copy of the Lock-in Letter is not otherwise part of the record . However,,,the Lock-in Letter would have included paragraphs such as the following :

Dear WHY ARE WE WRITING TO YOU? , Our records show that your employee, named above, is not entitled to claim a complete exemption from -withholding or more than a specified number, of withholding allowances .

WHAT ACTIONS DO YOU NEED TO TAKE ?

Please disregard the information on this employee's Form W-4, Employee's Withholding Allowance Certificate, and withhold income tax based on the following marital status and withholding allowances :

Marital Status : Withholding Allowances :

Do'not honor any new Form W-4 from your employee that ,results in less income tax withholding than at th e status and allowances shown above .

Please give the attached Employee's Copy [Letter 2801C] of this letter [Letter 2800C] to the employee named above within ten business days from the date of this letter . * * * WHEN DO YOU ADJUST YOUR EMPLOYEE'S WITHHOLDING?

** FIRST PAY PERIOD ENDING ON OR AFTER [date] * * You must begin withholding income tax at the marital status and specified number of withholding allowances shown above starting with the first pay period ending on or after 60 days from the date of this letter, AND NOT BEFORE . This time period will provide your ; employee with an opportunity to dispute our

HOW DOES THE LAW

Internal Revenue employers to wit section 31 .3402( Employment Tax R notify you that a complete'exemp than the maximum above .

Code (IRC) Section- .3402 requires hold federal. income tax . Unde r (2) -1T (g) (2) of the Temporary gulations, we may issue .this letter to our employee is not entitled to claim ion from withholding or claim mor e number of withholding allowances show n Internal Revenue Man u 1 (IRM) Exhibit 5 .19 .11-2 (May_ .l, 200-6) ; emphasis in the origi al . " As applicable t o petitioner, the commencement of .initial withholding, or the c mmencement of increased withholding , pursuant to the Janua y 24, 2008 .Lock-in Letter would necessarily have begun in 2008 .

t the earliest, .. the . withholding woul d necessarily have been in respect of potential liability for the taxable year- .2008 an d not forany prior taxable year .

Petitioner's accoun t alance plus accruals .for 2008, as reflected on respondent's reco r s, is'zero . This is not surprising, given .

The regulato r of IRM Exhibit 5 .19 .1 been .updated to refle 31 .3402(f) (2)-1(g), E generally effective- . A thereof (which do not apply on Oct . 11, 200 Tax Regs . The final Commissioner to issue the employer that-the complete exemption fr specified . maximum num citation appearing in the last paragraph -2 (May 1, 2006) as quoted above has not t,the final regulation, namely, sec . ployment Tax Regs . The final regulation is r . 14, 2005, except that certain parts appear to be relevant to the instant case ) Sec . 31 .3402 (f) (2) -1 (g) (5) , Employment egulation continues to authorize th e a Lock-in Letter to an employer notifying employee is not entitled to claim a m withholding or claim more than a er of withholding allowances .

the fact that the taxable year 2008 is still open and yet t o close . Moreover, respondent has not made any terminatio n assessment against petitioner for any part of 2008 .

See secs .

441, 6851 .

Nevertheless, petitioner contends that respondent's January 24, 2008 Lock-in Letter constitutes a collection action because it subjects him to income tax withholding by his employer .

Petitioner contends further that because the Lock-in Letter was not preceded by a final notice of intent to levy offering him an administrative hearing and judicial . review, he was denied the protections afforded by sections 6320 and 6330 . Accordingly, in petitioner's view, injunctive relief is warranted . Not surprisingly, respondent takes a different view .

Discussion As is plainly apparent, petitioner has no assessed liability (and no liability for unassessed accruals) for either . 2004 o r 2008 ( or for any part of 2008 ) .

But petitioner has been made subject to income tax withholding ( or increased withholding) through respondent ' s action in serving petitioner's employer with the January 24, 2,008 Lock - in Letter . Essentially , then, we must decide whether respondent's action constitutes a prohibited collection action that should be (or can be ) enjoined by this Court .

Tax Withholdilna In 1943, Congres required the withholding-of income taxes at the source on wages , .see Current Tax Payment Act of 1943, ch .

120, 57 Stat . 126, a n this pay-as-you-go system for employees has been in place eve r since . Withholding alleviates the .-burden on wage earners of ha ing,to make large payments of tax at one time, and it benefits the Government not only . by providing a mor e constant . stream of rec ipts but also by protecting "against deaths, disappearances and insolvencies, and to .catch,the itinerants who were mo ring from place to place with income s taxable in the aggrega e but with whom the Treasury could,not keep pace ." 13 Merten .Law of Federal Income Taxation, sec .

47A .02, at 47A-8 (2005 rev .) .

The Commissioner ias described -income tax withholding a s other than a tax in 'i t elf ., . Rev . Rul . 60-220 ; 1960-1 C .B . 399 ; 8 see sec . 3402 ; sec . 3 1 ~3402(a)-1, Employment Tax Regs . Durin g

The system was adopted as a pay-as-you-go bas currently the-app requiring the em or percentage fro to be paid over t employee's income withholding is a not a tax in itse 399 .]

f withholding income tax from wages means of collecting income tax on a is . I.ts object is to collec t roximate tax liability on wages by loyer to withhold a specified amount each'wage payment . Such amount i s o the Federal Government for the tax account . -Thus, income ta x system or method of tax collection and lf . --[Rev . Rul . 60-220, 1960-1 C .B .

the taxable year, a taxpayer's liability is inchoate and not precisely determinable . After the close of the year, however, the taxpayer determines his or her liability, reports it on a return, and offsets the tax withheld against that liability . If there is excess withholding, it may be claimed as an overpayment, and in most instances it is promptly refunded to the .taxpayer .

There are those who may seek to avoid withholding by claiming to be exempt therefrom or by overstating thei r withholding allowances on Form W-4 . The Commissioner'''s Withholding Compliance Program is designed to deal with such situations :

The mission of the Withholding Compliance Program is to ensure that taxpayers who have serious under- withholding problems are brought .into compliance with federal income tax withholding . requirements . The program .uses Form W-2 Wage and Tax Statement (W-,,2 )information to identify taxpayers with insufficient withholding . The goal is to correct withholding to ensure that taxpayers have enough income tax withheld to meet their tax obligations . [IRM 5 .19 .11 .1(1) (Ma y 1, 2006) .

] Integral to the Withholding Compliance Program is the "Lock- in Letter" :

Letters 2800C . and 2801C, mailed to the employer and the taxpayer, respectively, are commonly known as the "lock-in letters" . Letter 2800C instructs the employer to disregard the Form W-4 submitted by the taxpayer and withhold at the marital status and the number of allowances determined by the Service . Letter 2801C advises the taxpayer that the employer has been instructed to disregard the Form W-4 submitted,by the taxpayer and withhold at the rate specified in„Letter [IRM 5 .19 .11 .3 .2(1) (May 1, 2006) .] 2800C .

11 - Internal Revenue Manual provisions contemplate taxpayer responses to "Lock-in Letters" and provide for redeterminations, specifically includin a' release of the "lock-in" . E .g ., IRM 5 .19 .11 .3 .9 (May 1, 2006) ; IRM 5 .19 .11 .3 .10 (May 1, 2006) . These provisions are based n authority granted by-regulations . See sec . 31 .3402(f) (2) -1 ( ) , Employment .Tax Regs . 9

the administration and enforcement of the Internal Revenue Code is delegated by statute to the Secretary of the Treasury who may prescribe regulations in furtherance of the purposes of the Code . § 7801 (a) (1) Furthermore, all persons' liable for any tax or the collection of any tax under the terms of the Internal-Revenue Code are required to :comply with the rules and regulations prescribed by the Secretary .. 26 U .S .C . § 6001 . employer must deduct and withhold from-its employees' wages the tax d termined in accordance with the provisions of the Code . 26 U .S .C . § 3402 . In fact, the employer .-it elf can be liable . .to the government for the amount of the tax that must be withheld in accordance with the Code . 26 U .S .C . § 3403 .

One of those requirements is that an In furtherance of these purposes, regulations specify that thE IRS may find that a withholding exemption certificate is defective and may instruct the employer to withhold taxes from the-employee on the basis of instructions from the IRS rather than in accordance with the W-4 furnished by the employee . 26 C .F .R . § 31 .3402(f)(2)- .1(g)(5) . [The citation is to a version of the egulation earlier than the one, currently in effect .] Courts have noted that an employer is obligated tocomply with the . instructions of the IRS in withholding sums from the paychecks o f (continued .

12 - B .

Jurisdiction to Enjoin : Deficiency Actio n In the context of an action for redetermination of deficiency, this Court's authority to restrain assessment or collection is found in the penultimate sentence of section 6213(a) :

The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a . redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition .

In the present case, it is not clear that petitioner intended to commence an action for redetermination of,the 2004 deficiency . After all, there are no assignments of error nor allegations of fact, as required by Rule 34(b)(4) and (5), i n respect of respondent's deficiency determination ; rather, the petition is styled as a collection action, and the substantive allegations found in paragraphs 5 . and 6 focus,exclusi,vely on respondent's January 24, 2008 Lock-in Letter and matters related thereto . If petitioner did not commence an action fo r . .continued) '( . its employees, even when those directions conflict with the information provided by the employee on his withholding certificate, because the employer is simply complying with applicable IRS code sections and regulations governing withholding . v . Perini Power Constructors, Inc . , 520 F .Supp . 1152, 1153 (D .C .N .H . 1981) ; McFarland v . Bechtel Petroleum, Inc . , 586 F .Supp . 907, 910 (N .D .Cal . 1984) .

See,e .g ., Chandler I 13 - ck jurisdiction to enjoin assessment or on 6213(a) .

Assuming arguendc that petitioner did intend to commence a n action for redetermination of deficiency,%section 6213(a) makes plain that we may only enjoin "in respect of the deficiency that .

.

is the subject of such petition ." The only deficiency that could be the subject of :the petit ion,is the deficiency for 2004 . But for that year there is no assessed liability°(nor'unasse .ssed accruals), and the record is clear that respondent is taking, and has taken, no collection action whatsoever with regard to respondent's deficiency determination for that year . Indeed, even petitioner has no argued to the contrary, for his soles focus is on`the January²⁴ ; 2008 Lock-in Letter, which letter concerns only current ithholding and has no effect on 2004 .

In short,-if the resent action ..represents (in whole or in part) an-action for re etermination of deficiency, there is no basis upon which we mi ht grant petitioner's motion to enjoin .

assessment and collection'. Sec . 6213(a) ;-see Dover Corp .-v . ,- Commissioner s T . C . Mem . 1997-339, affd . 1,48 F . 3d 70 (2d Cit .

1998) .

C . Jurisdiction o En'oin Collection Actio n In the context of a lien or`levy, action (collection action), this Court's authority to restrain assessment or collection is found in the last sent nce of section 6330(e)(1) :

The Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely appeal has been filed under subsection (d),,(1) and then only in respect of the unpaid tax or proposed levy to which the determination . being appealed relates .

.Thus , section 6330 ( e)(1) contemplates . that we first have plenary jurisdiction in .a lien or levy action before we can enjoin "any action or proceeding " and then only " in respect of the unpaid tax or proposed levy to which the determination being appealed relates ."

Accordingly , we must consider the'conditions to be satisfied before we' have plenary jurisdiction in a lien or levy action .

In a lien or levy action ( collection action ) under sections 6320 and 6330 , this . Court ' s jurisdiction depends on (1) the issuance of a notice of determination by the Co mmissioner's Office of Appeals after the taxpayer has requested an administrative hearing following the issuance by the' Commissioner's collection division of either a final , notice of intent to levy , see sec . 6330 ( a), or a notice of filing of Federal tax lien , see sec . 6320 ( a), and ( 2) the timely filing of a petition by the taxpayer , see Sarrell v . Commissioner , 117 T .C .

122, 125 ( 2001 ) ; Moorhous v . Co mm issioner , 116 T . C . 263, 269 (2001 ) ; Offiler v . Commissioner , 114 T . C . 492, 498 (2000) ; see also Rule 330 (b) .1 0

(continued .

. .)

the instant case, respondent's Appeals Office has no t issued any notice of cetermination for 2004 . Indeed, as we have already discussed, petitioner has no outstanding (i .e .,(cid:127)assessed but unpaid) liability for that year . Likewise ; respondent's .

Appeals Office has not issued'any notice of determination for 2008,. as that year is still open and has yet to close .,' Petitioner .might say that respondent's January 24, 2008 Lock-in Letter constitutes a notice of determination within the meaning of sections 6320 and 330, but it does not .

Ballard v .

Commissioner , T .C . Me o .12007-159 . Thus, lacking any notice o f determination, we are left without jurisdiction to enjoin anything .

Ignoring the foregoing, and relying heavily on Buffano v .

Commissioner , T .C . Memo . 2007-32, petitioner argues that respondent's January 24, 2008 Lock-in Letter constitutes a species of collection action and that "ALL collection activity is governed under IRC §6330 ." We disagree .

We begin with Bu fano v . Commissioner, supra . That case was a levy action involving the Commissioner's-efforts'to collect a taxpayer's outstandin (i .e .-,-assessed but unpaid) liabilities for 2000 and 2001 . The only motion before us there was th e Commissioner's motion to dismiss for lack of jurisdiction .

that regard, the Commissioner argued that the case should b e I ` ( . . continued), Breman v . Commissioner, 66 T .C . 61, 66 (1976) dismissed on the ground that no notice of determination had been issued to the taxpayer because the taxpayer had not requested an administrative hearing following the issuance of a final notice of intent to levy . In contrast, the taxpayer argued . that the final notice of intent to levy had not been mailed to him at his last known address (and had not been received), thereby depriving him of the opportunity of pre-levy review . The Court agreed with the taxpayer, held that the final notice was invalid, and denied the Commissioner's motion ; the Court then dismissed the case on the alternative ground that the final notice was invalid . . In short, petitioner's reliance on Buffano v . Commissioner , supra , is misplaced ; that case is simply irrelevant to the matter befor e us .

We also flatly reject petitioner's contention that respondent's January 24, 2008 Lock-in Letter is a collection action within the meaning of sections 6320 and 6330 ., As we said in Ballard v . Commissioner , su ra :

There is nothing in the legislative history of the Internal Revenue Service Restructuring and Reform Act of 1998, . Pub . L . 105-206, 112 Stat . 685, that would indicate that Congress intended to include withholding of income tax as the type of collection action for which a hearing must be offered to the taxpayer .

Thus, respondent' s issuance of a Lock-in Letter need not b e preceded by the issuance of a final notice offering the taxpayer an administrative hearing followed by-judicial review . :,Stated otherwise, - a Lock-in etter:is not a levy .' 1 Petitioner's ass rtion that "ALL`collection activity is governed under IRC §6330" is also wrong . Here we need only mention the common-la right,of "offset" or "set-off", codified in section 6402(a), t tat permits the .Commissi'oner'to credit an overpayment for'one taxable year against a .taxpayer's liability for another taxable y ar . In that regard, .this Court has expressly held that ar offset, made pursuant to-section 6402(a), does not constitute a levy and is therefore .not subject to the provisions of section 6330 .

Bullock v . Commissioner , .T C Memo .

2003-5-, affd . without published opinion 206 Fed .Appx . 164(cid:127)(3rd .

Cir . 2006) ; accord Bo d v . Comm issioner, 451'F .3d 8 (1st Cir .

2006), affg . 124. T'. C . 296 .(2005) .

Finally, petitioner baldly asserts, without . citation of authority, . that "It is a fundamental principle of law that there is always a remedy ." But, there is no "fundamental principle o f law" that the "remedy"I to a Lock-in Letter . is necessarily foun d in section 6330 .12 A n further, there are both administrativ e . 11 . Petitioner' s F .Supp .2d 510 (W .D .Va by unpublished per c u 2005), is misplaced . taxpayer under sec' . 7 even cite, much less authority to enjoin a eliance on Bennett v . United States , 361 2005), affd . in part and dismissed in par t iam order 155 Fed .Appx . 716 (4th Cir . That case involved an action brought by the 33 . The District Court's opinion did .not iscuss, sec . 6330 or the Tax Court's sessment and collection. ' See, e .g .,' B4llock v . Commissioner , supra ,, (holdin g (co.ntinued .

. .)

18 - and judicial remedies available to a taxpayer who feels put-upon by the Commissioner's Withholding Compliance Program . Thus, by its very terms, a Lock-in Letter does not contemplatei,that an employer immediately adjust the employee's withholding, but rather wait a stipulated period of time in order to permit the employee an opportunity to substantiate his or her withholding .

See, e .g ., IRM 5 .19 .11 .3 .10 (May 1, 2006) ; see also sec .

31 .3402(f) (2) -1 (g) (2) (v) , Employment Tax Regs . ; . sec .

31 .3402(f)(2)-1(g)(4), Example 5, Employment Tax Regs . Further, an employee still not satisfied may (and should) file a return, claim the amount withheld as a credit against his orher tax liability, and request a refund . 13 That approach failing, the employee may institute a refund suit pursuant to section 7422 with either the appropriate United States District~Court or the United States Court of Federal Claims . See McCormick v .

Commissioner , 55 T .C . 138 ., 142 n .5 (1970) .

12( .

. .continued) that an offset made pursuant to sec . 6402(a) does not constitute a levy and is therefore not subject to the provisions of sec . 6330) .

.See Bennett v . United States , supra at 517, . wherein the District Court stated that the taxpaye r does have a,legal remedy to reclaim any excess . amount of income tax withheld . He can simply file his income tax return for the year and receive a full refund of any overpayment .

D .

Conclusio n If the instant action'is viewed as an action fo r redetermination, then our jurisdiction to enjoin is limited to the deficiency that i the subject of the action . Sec . 6213(a) .

The deficiency that i arguably the subject of the instant action involves only 2004 . But, to date, respondent has not assessed and is not attempting to collect anything for-that year . Thus,_ there is nothing to restrain . In this context, petitioner's motion is without merit and must be denied .

If the instant action is viewed as one for collection review, then our jurisdiction to enjoin is subject to section 6330\(e)(1) . However, the only "collection" action identified by petitioner is respondent's January 24, 2008 Lock-in Letter . But because that letter is not a collection action within the meaning of the collection revi w provisions of sections 6320 and 6330, respondent'' ;s Appeals Office had no occasion to, and did not, issue a notice of dete mination . Absent a notice of determination and a timely appeal in respect thereof, this Court lacks jurisdiction to njoin . In this context, petitioner's motion must therefore e denied .

To give effect to the foregoing , An appropriate order will b e entered .

UNITED~TATES TAX- COURT www .ustaxcourt .gov Kenneth Davis Petitioner(s) V .

COMMISSIONER OF INTERNAL REVENUE,

Respondent Docket No .'}D - 0

REQUEST FOR PLACE OF TRIAL

Place an "X" in only one box to request your place of trial . A city marked with an asterisk i *) 1 ~,; may be requested onl if you elected on Form 2 that your case be conducted as a small tax cage -°i tr y'a' `~"` any other city may be requested for any case, including a small tax case .

ALABAMA

Birmingham q Mobil e

ALASKA

Anchorage

ARIZONA

Phoenix ARKANSAS Little Rock CALIFORNIA Fresno * Los Angeles San Dieg o San Francisco

COLORADO

Denver CONNECTICUT Hartford DISTRICT OF COLUMBIA q Washington

FLORIDA

Jacksonville q Miami Tallahassee* Tampa GEORGIA )a( Atlanta

HAWAII

Honolul u

IDAHO

Boise Pocatello*

ILLINOIS

q Chicago Peoria *

INDIANA

Indianapolis

IOW A

Des Moines

KANSAS

q Wichita * KENTUCKY Louisville

LOUISIAN A

q New Orleans Shreveport*

MAINE

Portland* MARYLAND Baltimore MASSACHUSETTS Boston MICHIGAN q Detroit MINNESOTA St . Paul

MISSISSIPPI

Jackson MISSOURI Kansas City St . Louis MONTANA Billings* Helena NEBRASKA Omaha

NEVADA

Las Vegas q Reno

NEW MEXICO

q Albuquerque NEW YORK q Albany* Buffal o q New York City Syracuse* NORTH CAROLINA q Winston-Salem NORTH DAKOTA Bismarck* OHIO q Cincinnati Cleveland Columbu s OKLAHOMA Oklahoma City

OREGON

Portland PENNSYLVANIA Philadelphia Pittsburgh SOUTH CAROLINA Columbia SOUTH DAKOTA Aberdeen* TENNESSEE q Knoxville q Memphis Nashville

TEXAS

Dallas El Paso Houston Lubbock San Antonio UTAH Salt Lake City

VERMONT

Burlington*

VIRGINIA

Richmond Roanoke* WASHINGTON Seattle Spokane WEST VIRGINIA Charleston

WISCONSIN

q Milwaukee

WYOMING

Cheyenne* SIGNATURE OF PETITIONER(S) OR COUNSEL DATE T .C . FORM 5 (REV. 01/08) q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q q

1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986, as amended ; all Rule references are to the Tax Court Rules of Practice and Procedure .
2. The deficiency is also based on respondent's, .
4. At the time hat the petition was filed, petitioner resided in the State of Georgia . r for me to check for IRS failure to issue a Final Notice, so Petitioner had no choice but to check the box that is most closely identifiable with this curren t `case . Respondent did not provide Petitioner with no [sic] other remedy to resolve this matter . ~ , Petitioner will be filing a Motion to Restrain Collection concurrently with this Petition .
6. Respondent has placed a "520" code on petitioner's account for 2004 . This code serves both as an alert to respondent ' s personnel of petitioner ' s pending Tax, Court case and as a bar to a prematu e,assessment of .the determined deficiency and additions to tax .
8. More fully, th Commissioner has described the withholding system as follows :
9. A taxpayer's contention with regard- to the alleged invalidity of the regulation has been held to be without merit . Bennett v . United States, 361 F .Supp .2d 510, 516 (W .D . . Va . 2005), affd . in part ,and dismissed in part by unpublished per curiam order 155 Fed .Appx . 716 (4th Cir . 2005) . In discussing the mattes,, the District Court stated tha t See 26 U .S .C .
10. We note that this Court is a court of limited jurisdiction . See sec . 7442 . . Accordingly, we may exercise jurisdiction only to the extent expressly authorized by statute .