Thomas D. Tuka v. COMMISSIONER OF INTERNAL REVENUE On Appeal from the United States Tax Court (T.C.…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1598
THOMAS D. TUKA,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
On Appeal from the United States Tax Court
(T.C. No. 005381-07)
Tax Court Judge: Honorable John O. Colvin
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
Opinion filed: October 9, 2009
OPINION
PER CURIAM
Appellant Thomas Tuka, proceeding pro se, appeals the order of the Tax Court
dismissing his petition for lack of jurisdiction. For the following reasons, we will affirm.
I

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All provisions of the Internal Revenue Code are found in Title 26 of the United1
States Code.
2
The parties’ underlying dispute stems from the issuance by the IRS of a “lock-in”
letter to Tuka and his employer in 2006. By way of background, under the Withholding
Compliance Program, the IRS reviews taxpayers’ claimed withholding allowances to see
if excessive or improper allowances are being claimed. If an insufficient sum is being
withheld, the IRS notifies the taxpayer’s employer – via “lock-in letter” – to begin
withholding additional taxes 60 days after receipt of the letter. See I.R.M.
¶ 5.19.11.3.3(3). Employees who receive lock-in letters may seek administrative
reconsideration within 30 days of receiving the letter. See id.
Nine months after receiving the lock-in letter, Tuka filed a petition in the Tax
Court, alleging that he was deprived of an administrative remedy to challenge the change
in his withholding status, as the action constituted a levy which was conducted without
the required Collection Due Process (“CDP”) proceedings provided for in I.R.C. § 6330
[26 U.S.C. § 6330]. Tuka also filed a motion to restrain the collection of any additional1
withholding taxes and refund any taxes already withheld. Because no formal notice of
determination had been issued, the Tax Court ordered the parties to show cause why
Tuka’s petition should not be dismissed. Ultimately, the Tax Court dismissed Tuka’s
petition because no notice of determination had been issued by the IRS. Tuka now
appeals that decision.

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3
II
We have jurisdiction pursuant to 26 U.S.C. § 7482(a). Our review is limited to the
propriety of the Tax Court’s decision, and we may not consider issues that were not part
of the Tax Court proceeding or grant relief that would be beyond the power of the Tax
Court itself. See IRC § 7482(a)(1), (c)(1); Comm’r v. McCoy, 484 U.S. 3, 6 (1987) (a
“court of appeals lacks jurisdiction to decide an issue that was not the subject of the Tax
Court proceeding”).
In dismissing Tuka’s petition, the Tax Court reasoned that it lacked jurisdiction
because the IRS never issued a notice of determination. The Tax Court is a court of
limited jurisdiction. See McCoy, 484 U.S. at 7. When a taxpayer invokes the protection
of IRC § 6330, as Tuka did, the Tax Court’s jurisdiction “depends upon the issuance of a
valid notice of determination by the IRS Office of Appeals and the filing of a timely
petition for review.” Boyd v. Comm’r, 451 F.3d 8, 10 n.1 (1st Cir. 2006); see
§ 6330(d)(1) (a “person may . . . appeal such determination to the Tax Court”).
The IRS Office of Appeals will issue a notice of determination only after a
taxpayer receives a CDP hearing to challenge an alleged deficiency. See § 6330(c)(3).
The notice of determination, to be valid, must contain certain information prescribed by
regulation: e.g., whether the IRS complied with laws and procedural requirements,
whether and to what extent the taxpayer raised appropriate issues and/or defenses, and
whether any proposed collection alternatives are acceptable. See Treas. Reg. § 301.6330-

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As the Government points out, see Commissioner’s brief, 26-27, it appears that2
Tuka’s petition to the Tax Court would have been untimely if his lock-in letter had
somehow constituted a notice of determination. We need not, and do not, rely on this
ground. See McCoy, 484 U.S. at 6.
4
1(e)(3)(Q&A-E8(i)) (detailing the contents of a notice of determination). We agree with
the Commissioner that the lock-in letter Tuka received does not constitute a notice of
determination. See Davis v. Comm’r, 96 T.C.M. (CCH) 269, 272 (2008); Ballard v.
Comm’r, 93 T.C.M. (CCH) 1394, 1396 (2007), aff’d, 310 F. App’x 177 (9th Cir. 2009)
(unpublished opinion). Tuka never received a CDP hearing before the IRS Office of
Appeals. Moreover, the lock-in letter, which merely explained that the IRS instructed
Tuka’s employer to adjust his withholding status, contained none of the information
required of a notice of determination.
Because the lock-in letter did not constitute a notice of determination, we agree2
that the Tax Court lacked jurisdiction over Tuka’s petition and we need not consider his
other arguments on appeal. Accordingly, we will affirm the decision of the Tax Court.

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