Kenneth B. and Marie L. Boyd - Page 1

                                   124 T.C. No. 18                                    

                               UNITED STATES TAX COURT                                

                    KENNETH B. AND MARIE L. BOYD, Petitioners v.                      
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 17660-03L.              Filed June 27, 2005.                

                    R applied an overpayment in tax from Ps’ 2002                     
               taxable year to other taxes owed by Ps and notified Ps                 
               of that fact (the notice).  Ps rely on language in sec.                
               6331(i)(3)(B), I.R.C., describing “any levy to carry                   
               out an offset” in support of their assignment that R                   
               erred in levying against their property without first                  
               giving them notice of their right to a sec. 6330,                      
               I.R.C., prelevy hearing.  Ps also assign error to R’s                  
               application of the overpayment to P husband’s liability                
               under an installment agreement.  R has moved to dismiss                
               for lack of jurisdiction on the grounds that Ps have                   
               received no statutory notice of deficiency or any other                
               determination that would give the Court jurisdiction to                
               consider Ps’ assignments of error (and Ps concede as                   
               much).  R also disputes that an offset is a levy.  We                  
               need not interpret sec. 6331(i)(3)(B), I.R.C., since                   
               even were we to consider the notice as evidence of a                   
               determination to proceed to collect tax by levy, Ps did                
               not timely petition the Court within the 30-day period                 
               prescribed by sec. 6330(d)(1), I.R.C., so that we must                 
               dismiss for lack of jurisdiction.                                      

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