Opinion
4222-21L
12-07-2022
BARRY J. SWATSENBARG & DAWN M. SWATSENBARG, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Ronald L. Buch Judge
This matter is before the Court on the Commissioner's Motion to Dismiss for Lack of Jurisdiction filed September 14, 2022, and his Supplemental Motion to Dismiss for Lack of Jurisdiction filed October 3, 2022. In his motion, the Commissioner moves to dismiss this case for lack of jurisdiction on the ground that no notice of determination was sent to Mr. or Mrs. Swatsenbarg with respect to the collection of their 2017 liability. We ordered the Swatsenbargs, who are represented by counsel, to respond to the Commissioner's motion. Neither the Swatsenbargs nor their counsel responded. As the parties invoking our jurisdiction, the Swatsenbargs bear the burden of proving that we have jurisdiction. Because they did not show that the Commissioner issued to them a notice of determination or other notice that would confer jurisdiction over 2017, we will grant the Commissioner's supplemental motion.
The Commissioner's motion documents the course of events. On June 24, 2019, the Commissioner issued a notice of intent to levy to the Swatsenbargs. Postal service records confirm both the mailing and delivery of the notice. The Swatsenbargs submitted a Form 12153 Request for a Collection Due Process or Equivalent Hearing. That form purports to have been signed on June 24, 2019, the same date the collection notice was issued and delivered to the Swatsenbargs. The envelope containing the Form 12153 was addressed to an Internal Revenue Service address in Cincinatti, Ohio, and the envelope was postmarked on Friday, August 9, 2019. The Form 12153 was stamped received by the Cincinatti Service Center on August 14, 2019.The Commissioner issued a Decision Letter on Equivalent Hearing Under Internal Revenue Code Sections 6320 and/or 6330 (Decision Letter) on December 15, 2020.The Decision Letter states "You didn't file your request for a due process hearing request within the legal time frame. If you can show that your due process hearing request was on time, you can file a petition with the United States Tax Court . . . to dispute our decision about the timeliness of your hearing request." Less than 30 days later, the Swatsenbargs mailed a petition to this Court.
In their petition, the Swatsenbargs requested "redetermination of denial of removal of penalty charges, request for abatement of penalties for late payment of tax, not-prepaying tax, and for filing tax return after the due date." They allege that they mailed a completed Form 12153, Request for a Collection Due Process or Equivalent Hearing on June 25, 2019, which is contradicted by the postmark.
We are a Court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). As such, we lack general equitable powers and the corresponding authority to grant relief from statutory jurisdictional requirements. Med. Weight Control Specialist v. Commissioner, T.C. Memo. 2015-52, at *8. We have jurisdiction to review a levy action only when the conditions of section 6330(d) have been satisfied. Rule 330(b); Sarrell v. Commissioner, 117 T.C. 122, 125 (2001).
Jurisdiction to review the Commissioner's decision concerning a levy is predicated on a notice of determination. § 6330(d). If a taxpayer requests a collection due process hearing within 30 days of the date of the notice of intent to levy, the Commissioner must issue the taxpayer a notice of determination. Treas. Reg. § 301.6330-1(f). If a taxpayer fails to request a hearing within the specified time period, the taxpayer forfeits the right to a hearing and a notice of determination. Treas. Reg. § 301.6330-1(c)(1), (c)(2) Q&A-C7.
However, the Commissioner may nonetheless grant the taxpayer's request through an "equivalent hearing." Treas Reg. § 301.6330-1(i)(1). Decisions memorializing the outcome of an equivalent hearing are issued in the form of a decision letter rather than a notice of determination. Treas. Reg. § 301.6330-1(i)(1). Decision letters do not confer petition rights. Treas. Reg. § 301.6330-1(i)(2) Q&A-16; Severo v. Commissioner, 129 T.C. 160, 163 (2007), aff 'd, 586 F.3d 1213 (9th Cir. 2009). We lack jurisdiction to review decision letters. Severo v. Commissioner, 129 T.C. at 163; MacDonald v. Commissioner, T.C. Memo. 2009-63.
As a Court of limited jurisdiction, we do not have the authority to hear this case, and we have no option but to dismiss this case for lack of jurisdiction. The records clearly show that the Swatsenbargs did not timely request a collection due process hearing and were not issued a notice of determination. Accordingly, it is
ORDERED that the Court's Order dated November 14, 2022, setting this case for trial, is vacated. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed September 14, 2022, and First Supplemental Motion to Dismiss for Lack of Jurisdiction, filed October 3, 2022, are granted and this case is dismissed.