\"Foley

*160 OPINION

RUWE, Judge: This case arises from a petition for judicial review filed under section 6330(d)(1)(A). ¹ The issue for decision is whether this Court has jurisdiction to review respondent's determination to proceed with collection by way of levy. At the time petitioners filed their petition, they resided in Asheville, North Carolina. When this case was called for trial, the parties submitted the case fully stipulated. For convenience, we combine the facts, which are not in dispute, with our opinion.

*50

Section 6331(a) authorizes the Commissioner to levy against property and property rights where a taxpayer fails to pay taxes within 10 days after notice and demand for payment is made. Section 6331(d) requires the Secretary to send notice of an intent to levy to the taxpayer, and section 6330(a) requires the Secretary to send a written notice to the taxpayer of his right to a hearing. Section 6330(b) affords taxpayers the right to a "fair hearing" before an "impartial" IRS Appeals officer. Section 6330(c)(1) requires the Appeals officer to obtain verification that the requirements of any applicable law or administrative procedure have been met. Section 6330(c)(2)(A) specifies issues that the taxpayer may raise at the Appeals hearing. The taxpayer is allowed to raise "any relevant issue relating to the unpaid tax or the proposed levy" including spousal defenses, challenges to the appropriateness of collection action, and alternatives to collection. Sec. 6330(c)(2)(A). The taxpayer cannot raise issues relating to the underlying tax liability if the taxpayer received a notice of deficiency or the taxpayer otherwise had an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B).

*51 Section 6330(c)(3), provides that a determination of the Appeals officer shall take into consideration the verification under section 6330(c)(1), the issues raised by the taxpayer, and whether the proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary. Section 6330(d)(1) then provides:

     (1) Judicial review of determination. -- The person may,

   within 30 days of a determination under this section, appeal

   such determination --

*161         (A) to the Tax Court (and the Tax Court shall have

     jurisdiction with respect to such matter); or

        (B) if the Tax Court does not have jurisdiction of the

     underlying tax liability, to a district court of the United

     States.

Thus, if we have general jurisdiction over the type of tax involved, a "determination" by Appeals and a timely petition are the only requirements for the exercise of our jurisdiction under section 6330. Temporary regulations promulgated under section 6330 require that the "determination" *52 by Appeals be issued in the form of a "written" notice. Sec. 301.6330-1T(e)(3), Q&A-E7, Temporary Proced. & Admin. Regs, 64 Fed. Reg. 3411-3412 (Jan. 22, 1999). ² Thus, we have held that our jurisdiction under section 6330(d)(1) depends upon the issuance of a valid notice of determination and a timely petition for review. Sarrell v. Commissioner, 117 T.C. 122, 2001 U.S. Tax Ct. LEXIS 42, 117 T.C. No. 11 (2001); Offiler v. Commissioner, 114 T.C. 492, 498 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).

On April 30, 1999, respondent issued a notice of intent to levy to petitioners. The proposed levy was*53 to collect unpaid income taxes of $ 83,087.85 for the taxable years 1993, 1994, and 1995. On May 24, 1999, petitioners filed a Form 12153, Request for a Collection Due Process Hearing, ³ in which they raised the following issue regarding the validity of the assessments made by respondent:

   I do not agree with the collection action of levy and notice of

   intent to levy 4-30-99. The basis of my complaint is what I

   believe to be the lack of a valid summary record of assessment

   pursuant to 26 CFR 301.6203-1. Without a valid assessment

   there is no liability. Without a liability there can be no levy,

   no notice of intent to levy, nor any other collection actions.

On September 2, 1999, the Appeals officer wrote a letter to petitioners indicating that the validity of the assessments had been verified and attached*54 a Form 4340, Certificate of Assessments and Payments, which clearly shows that the assessments in question were made and remained unpaid. The Appeals officer concluded the letter stating: "If you wish *162 to discuss other matters, such as resolution of the liability please contact me by September 16, 1999. Otherwise, we will issue a determination". Petitioners made no response to this letter. No further proceedings or exchange of correspondence occurred prior to the Appeals officer's determination.

On November 3, 1999, a notice of determination was sent to petitioners by the IRS Appeals Office which sustained the proposed levy. The notice of determination included findings that: (1) All procedural, administrative, and statutory requirements were met; (2) the Form 4340 satisfied the requirements of section 6203; ⁴ (3) petitioners failed to present any collection alternatives; and (4) the proposed levy was justified. On December 2, 1999, petitioners filed a timely petition to the Tax Court.

*55 Neither petitioners nor respondent has moved or argued that we lack jurisdiction in this case. However, questions regarding jurisdiction were raised by the trial judge at the time the case was called for trial. The specific jurisdictional question concerned whether petitioners were offered an opportunity for a hearing with an IRS Appeals officer. The trial judge's inquiry was based on our opinion in Meyer v. Commissioner, 115 T.C. 417, 422-423 (2000), which held that we lacked jurisdiction under section 6330(d) if the taxpayer was not given an opportunity for an Appeals hearing.

In Meyer v. Commissioner, supra at 422-423, we looked behind the notice of determination to find that the taxpayer was not offered an Appeals hearing. We then found that the notice of determination was invalid and that the Tax Court was without jurisdiction to review the Appeals officer's determination. Id. For the reasons discussed below, we now conclude that our opinion in Meyer was incorrect.

As a preliminary matter, we point out that this Court should not have decided whether the notice of determination was valid in Meyer v. Commissioner, supra, because we did not*56 have subject matter jurisdiction. We have held that we lack jurisdiction under section 6330(d) when the tax in issue is one over which we normally do not have jurisdiction. See *163 Johnson v. Commissioner, 117 T.C. 202, 2001 U.S. Tax Ct. LEXIS 47, 117 T.C. No. 18 (2001); Moore v. Commissioner, 114 T.C. 171 (2000). The tax in Meyer v. Commissioner, supra, was a frivolous return penalty over which we normally have no jurisdiction. We therefore had no subject matter jurisdiction under section 6330(d). Van Es v. Commissioner, 115 T.C. 324 (2000). In that situation, section 6330(d) provides that "If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court." ⁵ Thus, in Meyer v. Commissioner, supra, we decided an issue regarding the adequacy of the hearing opportunity and its ramifications which should have been considered in the first instance by a district court with subject matter jurisdiction.

*57 Secondly, in Meyer v. Commissioner, supra, our holding that the notice of determination was invalid was improperly predicated on facts regarding procedures that were followed prior to the issuance of the notice of determination rather than on the notice of determination itself. 115 T.C. at 422-423. Our analysis in Meyer improperly required us to look behind the notice of determination.

In Offiler v. Commissioner, 114 T.C. at 498, we analogized a notice of determination issued pursuant to section 6330(c)(3) to a notice of deficiency issued pursuant to section 6212, and said that the notice of determination is the jurisdictional "equivalent of a notice of deficiency." ⁶ In the context of a notice of deficiency, we have consistently held that as a general rule we do not look behind the notice to determine its validity. Pietanza v. Commissioner, 92 T.C. 729, 735 (1989), affd. without published opinion 935 F.2d 1282 (3d *164 Cir. 1991); Riland v. Commissioner, 79 T.C. 185, 201 (1982); Estate of Brimm v. Commissioner, 70 T.C. 15, 22 (1978); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974).*58 It is well established that the Tax Court will generally examine only the notice of deficiency to determine whether the notice was valid for jurisdictional purposes. See Sealy Power, Ltd. v. Commissioner, 46 F.3d 382, 388 n.25 (5th Cir. 1995), affg. in part and revg. in part T.C. Memo 1992-168; Clapp v. Commissioner, 875 F.2d 1396, 1402 (9th Cir. 1989).

*59 We believe the same principles are applicable to a section 6330 determination. Our jurisdiction under section 6330(d)(1)(A) is established when there is a written notice that embodies a determination to proceed with the collection of the taxes in issue, and a timely filed petition. To the extent that Meyer v. Commissioner, 115 T.C. 417 (2000), holds that we must first look behind the determination to see whether a proper hearing was offered in order to have jurisdiction, Meyer is overruled.

We are, of course, cognizant of the role stare decisis plays in this Court and in other Federal courts, especially in the context of statutory construction. See, e.g., Sec. State Bank v. Commissioner, 111 T.C. 210, 213-214 (1998), affd. 214 F.3d 1254 (10th Cir. 2000). Nevertheless, when this Court decided Meyer v. Commissioner, supra, lien and levy cases under section 6330 were just starting to reach this Court. In the nascent stages of our section 6330 jurisprudence, we made a decision limiting our jurisdiction. After almost a year of experience in dealing with lien and levy cases, we have come to the conclusion that the jurisdictional analysis*60 in Meyer was incorrect and has resulted in unjustified delay in the resolution of cases. Whether there was an appropriate hearing opportunity, or whether the hearing was conducted properly, or whether the hearing was fair, or whether it was held by an impartial Appeals officer, or whether any of the other nonjurisdictional provisions of section 6330 were properly followed, will all be factors that we must take into consideration under section 6330 in deciding such cases. But none of these factors should preclude us from exercising our jurisdiction under section 6330(d), in order to resolve the underlying dispute in a fair and expeditious manner.

*165 In the instant case, there is nothing in the notice of determination which leads us to conclude that the determination was invalid. The notice of determination clearly embodies the Appeals officer's determination that collection by way of levy may proceed. Thus, regardless of whether petitioners were given an appropriate hearing opportunity, there was a valid determination and a timely petition. Those are the only statutory requirements for jurisdiction in section 6330(d)(1)(A). Accordingly, we hold that we have jurisdiction to review the*61 determination in this case.

An appropriate order will be issued.

Reviewed by the Court.

WELLS, COHEN, SWIFT, GERBER, COLVIN, GALE, and THORNTON, JJ., agree with this majority opinion.

* * * * *

CONCURRENCE OF JUDGE HALPERN

HALPERN, J., concurring: I concur with the majority that we have jurisdiction to hear an appeal from a section 6330(c)(3) determination notwithstanding that no section 6330(b) hearing was held. I write separately to lend support to the majority's conclusion and to offer some comments concerning our authority to dictate to respondent the nature of the hearing required by section 6330(b).

In Meyer v. Commissioner, 115 T.C. 417 (2000), the taxpayers had requested a section 6330(b) hearing. The Appeals officer, considering the grounds raised by the taxpayers, did not schedule (or offer to schedule) a conference with the taxpayers, but proceeded to issue notices of determination (the notices) that all administrative procedures had been met and respondent would proceed with collection against them for the years in issue. 115 T.C. at 418. The taxpayers appealed*62 to this Court, and we dismissed for lack of jurisdiction, concluding that the notices were invalid because the Appeals officer had not provided the taxpayers with an opportunity for a hearing "either in person or by telephone" prior to issuing the notices.

*166 The consequences of a dismissal on such grounds are unclear. Section 6330(e) provides for the suspension of collections and the statute of limitations during the pendency of a section 6330(b) hearing and any appeal therefrom. ¹ It does not appear that Congress used the adjective "pending" in section 6330(e)(1) in any special sense, and it is arguable that all section 6330 suspensions end upon our dismissal for lack of jurisdiction of a case in which, pursuant to section 6330(d)(1), we are the only Court to which an appeal may be made. Moreover, under the last sentence of section 6330(e)(1), a prerequisite to our jurisdiction to enjoin any collection action is the timely filing of an appeal under section 6330(d)(1). I have found no authority that an appeal can be timely filed with a court that lacks jurisdiction to hear that appeal. If it cannot be, then we lack jurisdiction to enjoin any collection action following our dismissal*63 for lack of jurisdiction.

*64 Certainly, section 6330 entitles a taxpayer to a hearing. See sec. 6330(a)(3)(B). It is a matter of statutory interpretation, however, whether there can be no determination under section 6330(c)(3) (and, thus, no basis for court review) if there is no hearing. The review of an administrative action of an agency is not a normal task for us. In a proceeding before the Tax Court to redetermine a deficiency, we find facts de novo. See sec. 6214(a); O'Dwyer v. Commissioner, 266 F.2d 575 (4th Cir. 1959), affg. 28 T.C. 698 (1957); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327-328 (1974). ²*167 But see, e.g., section 7429(b)(2)(B), providing for our review of jeopardy levy or assessment proceedings, and section 6404(i), providing for our review of whether respondent's failure to abate interest was an abuse of discretion. There is an extensive jurisprudence dealing with court review of agency administrative actions. The Administrative Procedure Act (APA), 5 U.S.C. secs. 551-559, 701-706 (1994) (hereafter, sections of which are cited APA), provides the basic structure of Federal administrative law. As discussed immediately*65 below, I believe that various provisions of the APA inform our authority (and our jurisdiction) under section 6330(d)(1)(A). I believe that the APA is persuasive evidence for the proposition that the failure to accord a taxpayer a section 6330(b) hearing does not deprive us of jurisdiction to review a section 6330(c)(3) determination.

Section 6330(d)(1) establishes our jurisdiction to consider an appeal from an adverse section 6330(c)(3) determination: "[T]he Tax Court shall have jurisdiction with*66 respect to such matter". Sec. 6330(d)(1)(A). Section 6330(d)(1) does not, however, specify our remedial powers in such situation. ³ Such powers are established in part by APA section 706. In pertinent part, APA section 706 provides:

*67    The reviewing court shall --

           *   *   *   *   *   *  *

     (2) hold unlawful and set aside agency action, findings,

   and conclusions found to be --

        (A) arbitrary, capricious, an abuse of discretion,

     or otherwise not in accordance with the law;

           *   *   *   *   *   *  *

        (D) without observance of procedure required by

     law;

           *   *   *   *   *   *   *

   [Emphasis added.]

*168 If section 6330 requires a hearing before a determination can be made, then we, as a reviewing court, can set aside the determination as "not in accordance with the law" or "without observance of procedure required by law". To do so, however, we must have jurisdiction over the matter. That, of course, is provided by section 6330(d)(1). To hold that we have no jurisdiction to exercise our authority under APA section 706 makes no sense.

The application of APA section 706 is established by other provisions of the APA. In pertinent part, APA section 702 provides: "A person*68 suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." In full, APA section 703 provides:

     The form of proceeding for judicial review is the

   special statutory review proceeding relevant to the

   subject matter in a court specified by statute or, in the

   absence or inadequacy thereof, any applicable form of legal

   action, including actions for declaratory judgments or writs of

   prohibitory or mandatory injunction or habeas corpus, in a court

   of competent jurisdiction. If no special statutory review

   proceeding is applicable, the action for judicial review may be

   brought against the United States, the agency by its official

   title, or the appropriate officer. Except to the extent that

   prior, adequate, and exclusive opportunity for judicial review

   is provided by law, agency action is subject to judicial review

   in civil or criminal proceedings for judicial enforcement.

   [Emphasis added.]

It seems to me that the underscored language fits a section*69 6330(d)(1) appeal exactly. If, indeed, a section 6330(b) hearing is a prerequisite to a section 6330(c)(3) determination, then, by all means, we should hold the determination to be unlawful and set it aside (or take other appropriate action). If we are going to set the determination aside, we should do so in the manner prescribed by Congress (in enacting the APA), and not by disclaiming the jurisdiction to do so.

Notwithstanding the failure of respondent's Appeals officer to offer a taxpayer a hearing before making a section 6330(c)(3) determination, such determination is valid, in the sense that we have jurisdiction under section 6330(d)(1) to review the determination and, if appropriate, set it aside or take other appropriate action and, if necessary, enjoin any improper collection action by respondent.

In Meyer v. Commissioner, 115 T.C. 417 (2000), we dismissed for lack of jurisdiction on the grounds that the Appeals officer had made an invalid determination because he had not provided the taxpayers with an opportunity for a hearing "either in person or by telephone" prior to making that determination. *70 Id. at 422- 423. Implicit in our disposition of Meyer is some notion of what is normative for a hearing. Since we found that the Appeals officer had communicated with the taxpayers prior to making his determination,