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Lost Your CDP Hearing? The IRC 6330 Tax Court Guide

Appeals sustained a lien or levy? You have 30 days to petition the Tax Court. How IRC 6330(d) review works, and how these cases are won and lost.

Liam Williams

Liam Williams

— 23 min read
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IRS Appeals has sent you a Notice of Determination upholding a federal tax lien or a proposed levy. That notice is your ticket to the U.S. Tax Court: under IRC Section 6330(d)(1), you have 30 days from the date on it to file a petition.

The Court then asks a narrow question: did Appeals confirm that the IRS followed the law, deal with the issues you raised, and weigh the IRS's need to collect against how intrusive its action is? Unless you are allowed to dispute the tax itself, the judge will not redo Appeals' work, and in some states looks only at the record from your hearing. Many cases end on an IRS motion for summary judgment, without a trial, so what you file in writing often decides the case.

Where To Start, Depending on What You Are Holding

What the Tax Court Reviews (and What It Doesn't)

A Notice of Determination is the decision the IRS Independent Office of Appeals issues after a Collection Due Process (CDP) hearing. The hearing comes either after the IRS files a notice of federal tax lien, the public notice of its claim on your property (IRC Section 6320), or before it levies, meaning seizes wages, bank accounts or other property (Section 6330). Section 6320(c) applies Section 6330(d) to lien hearings, so the same petition right covers both.

These cases are common. In fiscal year 2025, CDP was the issue most often discussed in Tax Court opinions for individual (Form 1040) taxpayers: 27 merits opinions, excluding bench orders and summary judgments, according to the National Taxpayer Advocate's 2025 Annual Report to Congress.

The Court reviews the three things Section 6330(c)(3) requires Appeals to take into consideration:

  1. Verification that "the requirements of any applicable law or administrative procedure have been met," such as a properly made assessment (the formal recording of the tax as owed).
  2. The issues you raised, such as an installment agreement, an offer in compromise, lien withdrawal or innocent spouse relief.
  3. Balancing: whether the 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."

A Decision Letter is usually a dead end. A late hearing request generally gets only an "equivalent hearing" and a Decision Letter, and "Section 6330 does not authorize a taxpayer to appeal the decision of Appeals with respect to an equivalent hearing" (Treas. Reg. § 301.6330-1, Q&A-I6). Innocent spouse claims aside (they have their own 90-day route), there are two exceptions:

Either way, the Decision Letter will say you cannot take Appeals' decision to court, though some add that you may challenge in court the finding that you were late. If an exception fits, petition within 30 days of the letter's date anyway, and explain in the petition why it applies.

The Petition Deadline

The deadline is 30 days from the date on the Notice of Determination, for a lien or a levy, and the notice says so. There is no extra time for taxpayers abroad, though the IRS acknowledged in Boechler that the deadline can be extended for taxpayers in a combat zone or a disaster area.

  • The notice's date starts the clock, not the day it arrives. In Aiello v. Commissioner, T.C. Memo. 2025-46, a notice issued March 7, 2022, and received two days later made the petition due April 6.
  • Weekends and holidays move the last day to the next day that is not a Saturday, Sunday or legal holiday in Washington, D.C. In Reed v. Commissioner, T.C. Memo. 2025-4, a notice dated April 25, 2019, made the petition due May 28, "after accounting for the weekend and the federal holiday of Memorial Day."
  • DAWSON, the Court's electronic filing system, takes a petition as timely if filed "at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing" (Rule 22(d)).
  • A mailed petition that arrives late still counts if its U.S. postmark is on time (IRC Section 7502). Proving Your Tax Court Petition Was Filed on Time explains which mailing methods prove the date.
  • Bankruptcy suspends the period while the bankruptcy case bars you from filing, "and for 30 days thereafter" (§ 6330(d)(2)).

File with the Court, not the IRS. Within the deadline, Mr. Aiello sent his petition and filing fee to his Appeals officer, who returned them. He filed with the Court six months later and lost: the notice "explicitly told him that he needed to file that document with this Court."

Spouses each need a timely petition. In Stephens v. Commissioner, T.C. Memo. 2024-40, a husband and wife received "separate (but substantially identical) notices of determination." He petitioned on time; she filed about a year later, and her case was dismissed.

Filed Late? Equitable Tolling After Boechler

In Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), the Supreme Court held that the petition deadline is "an ordinary, nonjurisdictional deadline subject to equitable tolling." The Tax Court can now accept a late petition, but only from a petitioner who qualifies.

The test. "To be entitled to equitable tolling, the taxpayer must establish that he pursued his rights diligently and that extraordinary circumstances prevented him from filing on time" (Shaw v. Commissioner, T.C. Memo. 2024-48). You must prove both.

The IRS has to raise it. A late petition now "risks dismissal for failure to state a claim upon which relief can be granted" (Reed), on the IRS's motion. If the IRS does not press the point, it can lose it. In Salazar v. Commissioner, T.C. Memo. 2026-9, the petition was more than a month late, but the IRS asked to send the case back to Appeals instead of seeking dismissal, and the Court treated the defense as waived. Mr. Salazar had attached a "Memo for Tolling Time" to his petition, saying he "did not receive a separate copy" of the notice.

Explain, then answer everything. A late petitioner needs to say in the petition itself, with dates, what kept them from filing and what they did to protect their rights, then respond to every filing and order. Two self-represented petitioners lost for silence alone:

  • In Shaw, the Court ordered the taxpayer to "address what facts (if any) explain why he was unable to file his Petition" on time. He never responded, and "we have no choice but to grant respondent's Motion."
  • In Stephens, she never replied to the IRS's allegation that she had alleged no facts supporting tolling, even when ordered to, so it was deemed admitted (treated as true) under Rule 37(c).

Reasons that failed. In every case we found where a self-represented petitioner asked for tolling, it was denied. Boechler lost too.

  • No link to the delay. In Reed, identity theft years before the notice did not explain filing four years late.
  • No diligence. Mr. Aiello showed none in the six months after Appeals returned his petition. Asked about any extraordinary circumstance, he said: "Nothing stands out in my mind."
  • Miscalculation. Boechler's petition was one day late because the firm's sole attorney miscalculated. In Boechler, P.C. v. Commissioner, No. 25-2620 (8th Cir. Aug. 10, 2026), the Eighth Circuit upheld the denial of tolling: "Miscalculation of the deadline to file the petition, standing alone, is not an extraordinary circumstance for purposes of equitable tolling."

A rare good ending. In Castillo v. Commissioner, 160 T.C. No. 15 (2023), a petition dismissed as late before Boechler was revived on appeal, and "On remand respondent conceded the case in full."

Filing the Petition: What It Must Say

Use the Court's Form 2 petition, checking "Notice of Determination Concerning Collection Action," or draft one under Rule 331. Form 2 takes the errors and facts in items 5 and 6, and asks you not to enclose evidence.

Rule 331(b) requires:

  • your name, mailing address and state of legal residence (a business gives its principal place of business);
  • the notice's date and the city and state of the Appeals office;
  • the amounts, type of tax and periods;
  • "Clear and concise assignments of each and every error which the petitioner alleges to have been committed in the notice of determination," each separately lettered, with the facts behind each;
  • the relief you want;
  • your signature and phone number; and
  • a copy of the notice, attached.

The sentence that catches people: "Any issue not raised in the assignments of error shall be deemed to be conceded." List every error, including any doubt about how the tax was assessed. Tie each one to the three checks and to the explanation that came with your notice, for example: "The settlement officer did not consider my proposed installment agreement."

Fee, filing and docket number. The fee is $60 (Rule 331(d)), and it can be waived. How To File Your Tax Court Petition covers DAWSON, mail, the forms that go with the petition (including the request for place of trial, Rule 332) and the waiver. Your docket number will end in "L," or "SL" for a small case.

After you file. The IRS answers within 60 days of being served with your petition (Rule 333). If the answer makes affirmative allegations, such as that you have no grounds for tolling, a regular case gives you 45 days to reply (Rule 37); in a small case you reply only if the Court orders it. Allegations left unanswered can be deemed admitted on the IRS's motion, as in Stephens. See What Happens After You File Your Tax Court Petition.

Small case or regular case. A CDP case qualifies for small case procedures only if the total unpaid tax for all years on the notice, including interest and penalties, was $50,000 or less on the notice date, whatever the amount in dispute (Leahy v. Commissioner, 129 T.C. 71 (2007)). A small case decision "shall not be reviewed in any other court" (IRC Section 7463(b)). Small Case or Regular Case: Which Should You Choose? covers the trade-offs.

How the Court Reviews Your Case

Sego v. Commissioner, 114 T.C. 604 (2000), sets out two standards of review, depending on whether the tax itself is properly in dispute:

  • De novo means the judge decides afresh, with no deference to Appeals. It applies only to the tax itself, and only when you are allowed to dispute it.
  • Abuse of discretion covers everything else. Appeals' decision stands unless it was "arbitrary, capricious, or without sound basis in fact or law" (Murphy v. Commissioner, 125 T.C. 301 (2005)).

Legal errors count. In Alessio Azzari, Inc. v. Commissioner, 136 T.C. 178 (2011), Appeals refused to consider subordinating the IRS's lien (putting it behind another creditor's claim) on a mistaken view of lien priority: "To the extent it was based upon an error of law, his determination constitutes an abuse of discretion."

The Court will not redo the numbers. Murphy: "We do not conduct an independent review of what would be an acceptable offer in compromise." And from DCSL, LLC v. Commissioner, T.C. Summary Opinion 2025-9: "The Commissioner does not abuse his discretion in denying a collection alternative when a taxpayer fails to present relevant evidence and neglects to provide requested documents."

When Can You Dispute the Tax Itself?

Only if you "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability" (§ 6330(c)(2)(B)).

When the tax is properly in dispute, the Court "may consider all relevant evidence introduced at trial" (Moore v. Commissioner, T.C. Memo. 2026-85, a self-represented case), and Burden of Proof in Tax Court explains who proves what. You must still have raised it at Appeals. If you received a notice of deficiency in time and did not petition, see You Missed the 90-Day Deadline. Now What?

The Record: What Evidence Counts

For issues reviewed for abuse of discretion, can the Court look at evidence Appeals never saw? It depends where you live, because the Tax Court follows the court of appeals that would hear your appeal: for an individual, generally the circuit for the state where you lived when you filed.

The Tax Court's own answer is yes. Its review "is not limited to the administrative record" (Robinette v. Commissioner, 123 T.C. 85 (2004)). As of 2026, three circuits disagree, and for people there the Court looks only at the hearing record:

Circuit Covers Case
First Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico Murphy v. Commissioner, 469 F.3d 27 (1st Cir. 2006)
Eighth Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota Robinette v. Commissioner, 439 F.3d 455 (8th Cir. 2006)
Ninth Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana Islands Keller v. Commissioner, 568 F.3d 710 (9th Cir. 2009)

Elsewhere, "the Court considers evidence not in the administrative record" (Goldberg v. Commissioner, T.C. Memo. 2020-38, a self-represented Illinois case). The circuit rule matters even in a small case, which cannot be appealed: Swain v. Commissioner, T.C. Summary Opinion 2026-9, from California, cited the Ninth Circuit's rule.

New evidence rarely wins anyway, because Appeals cannot abuse its discretion by ignoring what it never saw. Sego: "Matters raised after a hearing do not reflect on whether the determinations that are the basis of this petition were an abuse of discretion." In DCSL, the business promised an updated financial statement in its petition but never filed one, and "even if it had, there was no abuse of discretion," because it had not given the update to Appeals. The hearing is where these cases are won.

What the record holds. Under Q&A-F4 of the regulation, it is the Appeals case file: your hearing request, everything you sent, the officer's notes and memos, and anything else the officer relied on. The Court reads the notice's reasons alongside it, "such as case activity notes" (Novak v. Commissioner, T.C. Memo. 2026-52).

Check it. Under Rule 93, the record is filed, agreed by both sides or certified by the IRS, within 45 days after the notice setting the case for trial, unless the Court orders otherwise. The rule expects both sides to agree the record is genuine first, so that is your chance to check it; if a summary judgment motion comes before you have seen it, ask the IRS attorney for a copy. If something you gave Appeals is missing, you can move "to complete or supplement the administrative record" within 60 days after that notice, explaining "in detail why" and attaching the documents.

Issues You Did Not Raise at Appeals

The Court reviews what Appeals decided. Giamelli v. Commissioner, 129 T.C. 107 (2007): "We hold today that we do not have authority to consider section 6330(c)(2) issues that were not raised before the Appeals Office."

Under Q&A-F3 of the regulation, that includes challenges to the tax itself, and an issue is not properly raised if you did not ask Appeals to consider it, or asked but offered no evidence after "a reasonable opportunity to present such evidence." In Novak, a due process argument found in neither the hearing request nor the officer's notes was one the taxpayer "would thus be precluded from presenting" in court. What you can raise at the hearing is listed in What You Can Raise at a CDP Hearing.

The exception: verification. Hoyle v. Commissioner, 131 T.C. 197 (2008), a self-represented case, held that "this Court has the authority to review an issue arising under section 6330(c)(1) regardless of whether the taxpayer raised it at the Appeals hearing." The classic problem is an assessment made without a required notice of deficiency, which is invalid and cannot be collected (see Walker v. Commissioner, T.C. Memo. 2026-4, below). An assessment made too late is another; see If You Are in a CDP Case Instead.

Then list it in the petition, because Rule 331(b)(4) treats anything left out as conceded.

When the IRS Moves for Summary Judgment

Summary judgment is a ruling without a trial because no important fact is genuinely disputed. Most recent CDP merits decisions we reviewed came this way, on an IRS motion.

The rules. Under Rule 121(d), you "may not rest on the allegations or denials" in your petition but "must respond, setting forth specific facts," and "If the nonmovant does not so respond, a decision may be entered against that party." Where review "is based solely on the administrative record," Rule 121(j) requires the motion and any response to "include a statement of facts with references to the administrative record."

What the cases show:

  • Silence can lose by itself. DCSL filed no response, and the Court said "we could rule against it for that reason alone as permitted by Rule 121(d)."
  • A bare denial fails. Novak: "That summary denial does nothing to support the idea that there is a genuine dispute of material fact."
  • Record gaps can defeat the motion. In Swain, a self-represented case, the Court denied the IRS's first motion because the record showed "discrepancies regarding the total amount of petitioners' outstanding liabilities," raised doubts about how the collection expiration dates (when the IRS's time to collect runs out) were handled, and did not explain the proposed payments. It sent the case back to Appeals. (The Swains later lost: even on their own figures they had $46 a month left over, yet they turned down four installment agreements.)
  • You can win on the IRS's motion. In White v. Commissioner, T.C. Memo. 2026-56, the Court treated the taxpayer's opposition as a cross-motion (his own motion for summary judgment) and declined to sustain a levy for the whole balance, because a Justice Department settlement let him pay in installments through July 2027. The levy was "more intrusive than necessary." He had a lawyer.

A response, step by step (practical guidance drawn from Rules 93 and 121 and the cases):

  1. File by the Court's deadline, even briefly.
  2. Name the check Appeals failed (verification, your issues or balancing) and say why.
  3. Support each point with the record, citing pages: your hearing request and letters, the officer's notes, the notice.
  4. Point out numbers that do not add up (balances, collection expiration dates, payment calculations) and reasons the notice never gives; your IRS transcripts let you check the balances. If the record is unclear, ask for a remand.
  5. If documents you gave Appeals are missing, move to supplement the record under Rule 93(b).
  6. If the tax is properly in dispute, or you live outside the First, Eighth and Ninth Circuits, set out the facts you would prove at trial, with declarations made under penalty of perjury; see Common Tax Court Motions and How To Respond.

Remand: Back to Appeals

Instead of deciding, the Court can send a case back to Appeals for a supplemental hearing, called a remand. It has done so when:

  • verification was unclear (Hoyle: the record did not show what the officer relied on to confirm a notice of deficiency was mailed);
  • the numbers did not add up (Swain);
  • the officer was not impartial. In Moosally v. Commissioner, 142 T.C. 183 (2014), the officer had earlier reviewed the taxpayer's rejected offer in compromise, so "petitioner is entitled to a new CDP hearing before an impartial Appeals officer";
  • a late hearing request might be excused (Organic Cannabis); and
  • the IRS asked. In Kovach v. Commissioner, T.C. Memo. 2023-67, a self-represented case, a remand the IRS requested found no evidence that a supervisor had approved the penalties, so Appeals abated them, though the levy for the tax was sustained.

It will not remand when a new hearing would serve no purpose (Lunsford v. Commissioner, 117 T.C. 183 (2001)).

What a remand is. "[W]hen the Court remands a case to Appeals, the further hearing is a supplement to the taxpayer's original section 6330 hearing, not a new hearing" (Kelby v. Commissioner, 130 T.C. 79 (2008)). No new petition is needed: the Court reviews "the position taken in the last supplemental determination."

A remand is the chance to supply what was missing, by Appeals' deadline, and to weigh any payment plan Appeals offers; the Swains rejected a fourth.

What the Court Can and Cannot Order

It can sustain the determination (a decision for the IRS), decline to sustain it (a decision for you) or remand. After a timely petition, it can also stop a levy while the case is pending, but "only in respect of the unpaid tax or proposed levy to which the determination being appealed relates" (§ 6330(e)(1)).

A decision for you usually stops the collection action on the notice. The tax is still owed unless the Court decides the tax itself (as in Tracy); if it finds the assessment invalid, that assessment cannot be collected. Most taxpayer wins we found turned on a legal error or a defect visible in the record. In Walker, the IRS had assessed $20,904 tied to the premium tax credit without the required notice of deficiency, and the Court held "that the IRS may not proceed with collection of the Assessment." The Walkers, like Mr. White, had a lawyer; Mr. Tracy did not.

It cannot order a refund (an innocent spouse claim aside, since Section 6015 has its own refund rules), choose a collection alternative for you (Murphy), or decide issues you did not raise at Appeals, verification aside. On refunds, the Tax Court declined jurisdiction in Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006), a self-represented case, and in Commissioner v. Zuch, 605 U.S. 422 (2025), the Supreme Court said the levy-stopping provision, Section 6330(e)(1), "does not authorize the Tax Court to order a refund or to issue a declaratory judgment that resolves disputes about tax liability."

When the Balance Is Gone: Zuch

While Ms. Zuch's case was pending, the IRS applied her overpayments from later years to the disputed balance. The Supreme Court held: "Once the IRS used Zuch's overpayments to zero out the balance she allegedly owed, there was no longer any basis for a levy—thus, there was no relevant 'determination' for the Tax Court to review."

That can happen if you pay the balance, or if the IRS keeps refunds from other years, which the regulations allow during a CDP case (Q&A-G3: "offsetting overpayments from other periods"). The Court applies it period by period: in DCSL and White, paid periods were dismissed while the rest went on.

The refund trap. Once a period drops out, recovering money takes a refund claim with the IRS and, if it is denied, a refund suit in another court. The claim must generally be filed within 3 years of filing the return or 2 years of paying the tax, whichever is later (IRC Section 6511(a)).

If the IRS keeps a refund or you pay a disputed balance during your case, that clock is running; see The Refund Statute and Tax Court vs. District Court vs. Court of Federal Claims.

Is Collection Paused While Your Case Is Pending?

Partly. A timely hearing request suspends "the levy actions which are the subject of the requested hearing" while the hearing "and appeals therein, are pending" (§ 6330(e)(1)), which takes in your Tax Court case and any appeal. The 10-year collection statute stops too, so the IRS's time to collect grows by the length of your hearing and case, and it cannot expire before the 90th day after the final determination. The limits:

  • Only that levy. A lien-only case does not stop a levy: "Levy actions, however, are not the subject of a CDP hearing under section 6320" (Treas. Reg. § 301.6320-1, Q&A-G3). A levy case does not stop levies for other taxes and periods that are not on the notice.
  • Liens and offsets continue. The IRS may still file liens, keep refunds from other periods and go to court to collect (Q&A-G3 of both regulations).
  • If the IRS levies anyway for a period on your notice, the Court can stop it (What the Court Can and Cannot Order), except a levy on a state tax refund or a jeopardy levy (Q&A-G3); for other levies, see IRS Levies.
  • A stalling case can backfire. A court can lift the suspension "while an appeal is pending if the underlying tax liability is not at issue in the appeal and the court determines that the Secretary has shown good cause not to suspend the levy" (§ 6330(e)(2)). A case brought or kept going mainly for delay, or on a frivolous or groundless position, can also cost a penalty of up to $25,000 under IRC Section 6673; see The Sibling Penalty: Section 6702 and Collection Due Process Cases.
  • Interest, and any failure-to-pay penalty, keep running (How Interest Works on Your IRS Tax Debt; Understanding Your IRS Balance).

After the Decision

  • Appeal. A regular case decision can be appealed within 90 days after it is entered (IRC Section 7483), to the circuit for your legal residence, or a business's principal place of business (§ 7482(b)(1)(G)). A small case decision cannot be appealed and is final 90 days after entry (§ 7481(b)). See What Happens After Your Tax Court Decision.
  • If the IRS wins, the levy suspension ends when the case is over.
  • Appeals keeps jurisdiction over its determination (§ 6330(d)(3)), including later hearings on "collection actions taken or proposed with respect to such determination" and, in a levy case, once you have "exhausted all administrative remedies," on "a change in circumstances" that affects it.
  • Losing does not close every door. The Court has noted that self-represented taxpayers who lost remained free to propose an installment agreement or offer in compromise at any time, with the required financial information (Shaw; Kovach). See the guides to installment agreements, offers in compromise and currently not collectible status. A levy that causes economic hardship must still be released (IRS Levies), and lien withdrawal and discharge are covered in Federal Tax Liens.
  • Withdrawing. A CDP petitioner can ask to dismiss without prejudice, as the taxpayer in Dunn v. Commissioner, T.C. Memo. 2026-2 did while planning an offer in compromise. The Court agreed, since the IRS did not object, but warned that "the taxpayer's ability to refile a petition with this Court for review of the collection action is severely restricted."

What To Do Now

  1. Count 30 days from the date on your Notice of Determination, and file with the Tax Court, not the IRS, through DAWSON or by mail with proof of the mailing date. If you and your spouse each received a notice, both of you need to petition on time.
  2. Complete Form 2 or a Rule 331 petition. Check the collection box, list every error with the facts behind it, and attach the notice.
  3. Decide on small case status. It is open if the total unpaid tax for all years on the notice, including interest and penalties, was $50,000 or less on its date, and the decision cannot be appealed.
  4. If you are late, file anyway and explain what happened and what you did, with dates. Then respond to every IRS filing and Court order.
  5. Check the administrative record once it is filed, and move to supplement it if your documents are missing.
  6. Respond to any summary judgment motion by the deadline, tied to the record and the three checks.
  7. On a remand, send Appeals what it asks for on time.
  8. If the IRS keeps your refunds, or you pay, during the case, ask an adviser about a refund claim before its deadline passes (often 2 years from each payment).
  9. Get help. If your income is at or below 250% of the poverty line and the amount in dispute is $50,000 or less, a Low Income Taxpayer Clinic may represent you for free or at low cost. If you do not qualify, see When and How To Get Professional Help With Your Tax Dispute.

Resources

Statutes and regulations:

Tax Court Rules and forms:

IRS guidance:

Data:

Cases cited:

Companion articles on TaxCourtHelp:

This article is for informational purposes only and does not constitute legal or tax advice. For advice specific to your situation, consult a qualified tax professional or attorney.

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