April 27, 2016
for Review of an Order of the United States Tax Court. No.
21816-14L - Lewis R. Carluzzo, Special Trial Judge.
Flaum, Manion, and Williams, Circuit Judges.
Williams, Circuit Judge.
a difficult tax case made more so by the refusal of the
Commissioner of Internal Revenue to engage the taxpayer's
arguments or the tax court's decision. Kerry Adolphson,
who has failed to file a tax return since at least 2002,
challenges levies used by the IRS to collect his unpaid
taxes. The tax court dismissed his petition for lack of
subject-matter jurisdiction because Adolphson had not
challenged the levies administratively, see 26
U.S.C. § 6330(d), and, therefore, lacked the requisite
notice of determination from the IRS Office of Appeals.
contends that because the IRS prevented him from obtaining a
notice of determination by failing to properly notify him of
its intent to levy, the tax court should have declared the
levies invalid. To support his argument, Adolphson relies on
a line of cases where the tax court accepted this argument
and invalidated levies despite the fact that absent a notice
of determination, the tax court lacks the statutory authority
to hear a taxpayer's claim. While we agree with Adolphson
that his case is indistinguishable from this line of tax
court precedent, we affirm the judgment dismissing
Adolphson's petition because we find that those decisions
are unsound and reflect an improper extension of the tax
IRS's authority to levy a taxpayer's property is
governed by 26 U.S.C. § 6330, which states that
"[n]o levy may be made on any property or right to
property of any person unless the Secretary has notified such
person in writing of their right to a hearing under this
section before such levy is made." Id. §
6330(a)(1). This "Final Notice of Intent to Levy"
may be given in person, left at the taxpayer's home or
place of business, or sent by certified mail to the
person's last known address. Id. §
6330(a)(2). After issuance, the taxpayer has 30 days to
request a "collection due process hearing"
("CDP hearing") with the Office of Appeals, at
which the person may challenge both the levy activities and
the underlying tax debt, if there has not previously been an
opportunity to do so. Id. § 6330(b), (c). After
the hearing, the Office of Appeals issues a notice of its
determination, which authorizes a dissatisfied taxpayer to
petition the tax court for review within 30 days.
Id. § 6330(d). We have held that the tax court
lacks subject-matter jurisdiction to review IRS collection
activities unless the aggrieved taxpayer has obtained a
notice of determination. See Gray v. Comm'r, 723
F.3d 790, 792-93 (7th Cir. 2013); Cleveland v.
Comm'r, 600 F.3d 739, 741 (7th Cir. 2010).
2014, the IRS set out to collect $244, 464 in unpaid taxes
and penalties assessed against Adolphson for tax years 2002
and 2006 through 2010. According to Adolphson, he was unaware
of the IRS's collection efforts until May 2014, when the
agency levied on his funds held by third parties. Rather than
challenge the levies directly with the IRS, Adolphson filed a
pro se petition in September 2014, asking the tax
court to enjoin collection efforts by the IRS and refund
amounts already collected through the levies. Adolphson
argued that the levies are invalid because the IRS had not
mailed him a Final Notice of Intent to Levy as required, and
so he was deprived of the right to challenge the liability in
a CDP hearing before the IRS Office of Appeals. He relied on
several tax court decisions, including Buffano v.
Commissioner, 93 T.C.M. (CCH) 901 (2007), in which the
tax court asserted that it lacked subject-matter jurisdiction
without a notice of determination, yet nevertheless
invalidated levies after finding that the taxpayer was
prevented from requesting a CDP hearing by the IRS's
failure to mail a Final Notice of Intent to Levy to the
Commissioner initially responded by asserting that the
statutorily required notices had been
"mailed" but said that further investigation was
needed to ascertain where those notices were sent.
The Commissioner never provided an answer to that question,
however, and instead moved to dismiss Adolphson's
petition. The Commissioner argued that the tax court lacked
subject-matter jurisdiction under 26 U.S.C. § 6330(d),
because Adolphson had not requested a CDP hearing. Absent a
CDP hearing, Adolphson could not have received a notice of
determination from the IRS Office of Appeals. The
Commissioner maintained that without a notice of
determination, the tax court had no power to review the
levies or to determine whether the IRS had issued them
properly. In his motion, the Commissioner did not acknowledge
Buffano or the other decisions in which the tax
court had invalidated levies-notwithstanding the absence of a
notice of determination-based on the same argument Adolphson
contending that the tax court lacked jurisdiction, however,
the Commissioner responded to Adolphson's challenge on
the merits. The Commissioner noted that Final Notices of
Intent had been issued on March 11, 2010 and January 16,
2014. While IRS records indicated that Adolphson's
address had been updated in 2006, and then again in 2014, the
Commissioner was unable to say "with certainty"
whether the Final Notices of Intent were sent to the proper
addresses. Although the Commissioner conceded that the
Notices of Intent to Levy were invalid if mailed to the
improper address, which would mean that the levies must be
reversed, the Commissioner once more reiterated that absent a
CDP letter, the Court lacked jurisdiction over the collection
matter pursuant to Section 6330(d)(1).
only supporting documents that the Commissioner provided were
unauthenticated copies of Adolphson's transcripts of
account for the years at issue and an unauthenticated
computer printout listing dates on which his address of
record had been changed in the IRS system. These exhibits
corroborate the Commissioner's account of when
the Final Notices of Intent to Levy were issued but, as
acknowledged by the Commissioner, the documents do not show
where any of the notices were mailed. Indeed, these
computerized records are not even adequate to establish a use
of the mail, since they only state that the Final Notices of
Intent to Levy were "issued" (one in 2010,
pertaining to tax year 2002, and a second in 2014, for tax
years 2006 through 2010). A post office box in Iowa is given
as Adolphson's address on each transcript of account (all
of which were generated by the IRS from its database after
Adolphson had petitioned the tax court in September 2014).
The 2002 transcript also shows that the Final Notice of
Intent to Levy for that year, issued in 2010, was returned as
Adolphson conceded that he lacked a notice of determination,
he urged the tax court to apply Buffano and
invalidate the levies because the IRS had prevented him from
requesting a CDP hearing by failing to send him a Final
Notice of Intent to Levy for any of the relevant tax years.
He further argued that although the Commissioner's
exhibits listed an Iowa address, his "address for the
last 5 years has and always has been" in Illinois.
point the Commissioner conceded that the IRS could not
establish through its records where the agency had sent
either of the Final Notices of Intent to Levy. The
Commissioner speculated, though, that the Iowa address on the
transcripts of account is "the most likely address to
which these notices were sent." As before, the
Commissioner did not acknowledge-much less try to
distinguish-the tax court decisions relied upon by Adolphson,
instead faulting him for the agency's floundering while
continuing to insist that the tax court lacked subject-matter
jurisdiction to invalidate the levies. Nor did the
Commissioner submit additional evidence, instead relying upon
the assertion that IRS "records reflect that Notice was
mailed/' which misrepresents the ...