- 11 -
be defeated. We therefore affirm the decision of the
district court dismissing the action as time barred.
[Fernandez v. United States, 704 F.2d 592, 593 (11th
Cir. 1983).]
Thus, regardless of whether the administrative proceedings were
still ongoing after the 16th day following petitioner's request
under section 7429(a)(2), and whether the determination in those
proceedings was properly mailed to petitioner's last known
address, petitioner still was required under section 7429(b)(1)
to timely request judicial review in this Court. Petitioner
failed to make a timely request.10 See Freistak v. Egger, 551 F.
Supp. 238, 242 (M.D. Pa. 1982) (stating that "Nothing in the
statute requires that an administrative decision be made before
it is incumbent upon one to seek judicial review."). Further, we
do not find that petitioner was overtly prejudiced by the
extended administrative period or by any actions of respondent's
Appeals officer. Indeed, in the July 17, 2003, facsimile, the
10 The Notice of Jeopardy Levy and Right of Appeal indicates
that respondent previously issued to petitioner a notice of
intent to levy and/or notice of your right to a hearing under
sec. 6330. At that time, the 30-day period for filing a hearing
request pursuant to sec. 6330(a)(2) had not expired.
Petitioner's May 20, 2003, request for administrative review was
made on a Form 12153, Request for a Collection Due Process
Hearing. Nevertheless, the record indicates that petitioner's
request for a sec. 6330 hearing was withdrawn and the request was
treated as a request for administrative review under sec.
7429(a)(2). Respondent did not issue a notice of determination
under sec. 6330, and we do not construe petitioner's motion for
review of jeopardy assessment and jeopardy levy as an appeal from
a "determination" that might permit us to exercise jurisdiction
under sec. 6330(d)(1). See Dorn v. Commissioner, 119 T.C. 356
(2002).
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