lenge deficiency notices in Tax Court are found to be entitled to refunds.

By contrast, section 6330 incorporates no such limitations on the allowance of tax refunds or credits. There is no indication that in enacting section 6330, Congress intended, sub silentio, to provide taxpayers a back-door route to tax refunds and credits free of these longstanding and well-established limitations. Nor, in light of the detailed and comprehensive codification of such limitations in sections 6511 and 6512(b), do we believe that Congress would have intended that such limitations should arise by inference in section 6330 with respect to claims for tax refunds or credits as to which our jurisdiction would similarly arise under section 6330, if at all, only by inference. Consequently, we are led to the conclusion that Congress did not intend section 6330 to provide for the allowance of tax refunds and credits.

Petitioner's claim for a refund is based at least partly on her claim that she does not owe at least some of the assessed interest, on the ground that respondent failed to make timely notice and demand for payment of her 1992 deficiency. This Court has held that in an appeal brought under section 6330(d), where the existence and amount of the taxpayer's underlying tax liability is properly at issue, our jurisdiction allows us to review the taxpayer's claim for interest abatement pursuant to section 6404, see Katz v. Commissioner, 115 T.C. 329, 340-341 (2000), as well as to redetermine the correct amount of the taxpayer's interest liability where the claim falls outside of section 6404, see Urbano v. Commissioner, 122 T.C. 384, 389-393 (2004). In interest-abatement proceedings brought under section 6404(h), this Court has held that we have jurisdiction to determine the amount of an overpayment pursuant to section 6404(h)(2)(B), which states: "Rules similar to the rules of section 6512(b) shall apply for purposes of this subsection." See Goettee v. Commissioner, T.C. Memo. 2003-43.

We do not believe that petitioner's refund claim is properly construed as being predicated on a claim for interest abatement pursuant to section 6404.21 But even if petitioner's

21 Neither in the administrative hearing nor in this court proceeding has petitioner expressly asserted any claim for interest abatement pursuant to sec. 6404. The gist of her claim is that respondent has erroneously or illegally assessed interest, by failing to make timely notice and demand for payment of her 1992 deficiency. A claim for interest abatement predicated on allega

claim were so construed, that circumstance would not affect our conclusion that we lack jurisdiction under section 6330 to determine any overpayment or to order a refund or credit. Unlike section 6404(h), section 6330 contains no cross-reference to the rules of section 6512(b), nor does section 6330 cross-reference section 6404(h)(2)(B), which makes section 6512(b) type rules applicable only "for purposes of this subsection" (i.e., subsection (h) of section 6404). Section 6404(h)(2)(B) illustrates that Congress has acted infrequently to extend this Court's overpayment jurisdiction, and then only in a deliberate and circumscribed manner. These considerations buttress our conclusion that we should not assume overpayment jurisdiction in a section 6330(d) proceeding absent express statutory provision.

We are mindful that the District Court has stayed petitioner's refund case with the expectation that this Court would resolve certain relevant facts in this proceeding. Because we lack jurisdiction in this proceeding to determine petitioner's 1992 overpayment or to order a refund or credit of petitioner's 1992 taxes, and because the proposed collection action for 1992 is now moot, no factual issue remains which would affect the disposition of the case before us. For us to undertake to resolve issues that would not affect the disposition of this case would, at best, amount to rendering an advisory opinion. This we decline to do. Cf. LTV Corp. v. Commissioner, 64 T.C. 589, 595 (1975) (declining to provide an advisory opinion as to the amount of net operating losses (NOLS) in post-deficiency years in a deficiency case in which respondent had conceded NOLS sufficient to eliminate any deficiency for the year at issue).

tions of erroneous or illegal assessment is prohibited in an income tax case (such as the instant case), by virtue of sec. 6404(b), which provides: "No claim for abatement shall be filed by a taxpayer in respect of an assessment of *** [income] tax imposed under subtitle A". See Urbano v. Commissioner, 122 T.C. at 395; see also Melin v. Commissioner, 54 F.3d 432 (7th Cir. 1995); Bax v. Commissioner, 13 F.3d 54, 58 (2d Cir. 1993); Asciutto v. Commissioner, T.C. Memo. 1992564, affd. per order 26 F.3d 108 (9th Cir. 1994). Petitioner has not alleged, and the record does not suggest, that she qualifies for abatement of interest under the applicable version of sec. 6404(e), which would require unreasonable error or delay resulting from a "ministerial act". See Urbano v. Commissioner, supra at 390 n.4 (describing the 1996 legislative amendment which broadened the scope of sec. 6404(e) to include "managerial and ministerial" acts, effective for interest accruing on deficiencies for taxable years beginning after July 30, 1996).

For the reasons discussed, we shall dismiss this case as moot.

An appropriate order of dismissal will be entered.

Reviewed by the Court.

GERBER, COHEN, WELLS, HALPERN, CHIECHI, LARO, GALE, HAINES, GOEKE, KROUPA, and HOLMES, JJ., agree with this majority opinion.

FOLEY, J., concurs in result only.

COLVIN, J., concurring: I accept as correct the majority's interpretation of the statute and our lack of jurisdiction in this case. However, I write separately to highlight the fact that the Commissioner's offset authority can cause undesirable consequences for taxpayers and the Court in collection review proceedings under sections 6320 and 6330.

The majority holds that petitioner properly invoked the Court's jurisdiction under section 6330 by filing a timely petition challenging respondent's notice of determination regarding the proposed collection of her tax liability for 1992. The majority also holds that action was rendered moot because petitioner later overpaid her Federal income tax for 1999, and the Commissioner offset that overpayment by the amount of her unpaid 1992 tax liability.

Typically in these situations, a taxpayer's only remedy may be to fully pay the tax, file a refund claim, and if unsuccessful, institute a tax refund suit in Federal District Court or the Court of Federal Claims. As a result, taxpayer protections provided in sections 6320 and 6330, that is, the right to administrative and judicial review of the Commissioner's collection actions, can quickly evaporate simply because the taxpayer overpaid his or her taxes for another year.

The circumstances present here may recur in future cases. The combination of the Commissioner's authority to offset an overpayment and the mootness doctrine may cause taxpayer frustration and waste judicial resources. The dismissal of a proceeding brought in this Court under section 6320 or 6330 due to the offset of an overpayment may convince taxpayers that their efforts during the administrative and judicial process were wasted. Taxpayers may draw little solace from the

fact that they can reinstate their challenge to the Commissioner's collection action by filing a refund suit in another court.

MARVEL, WHERRY, and HOLMES, JJ., agree with this concurring opinion.

VASQUEZ, J., dissenting: I respectfully disagree with the conclusions of the majority primarily because I believe section 6330 provides the Court with jurisdiction to decide there is an overpayment. Additionally, the majority states: "the proposed levy for petitioner's 1992 tax liability is moot." Majority op. p. 7. I do not believe, however, that the case is moot.

Rules of Statutory Construction

Remedial legislation should be construed broadly and liberally to effectuate its purposes. Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); Piedmont & N. Ry. Co. v. ICC, 286 U.S. 299, 311 (1932); see Washington v. Commissioner, 120 T.C. 137, 155–156, 158 (2003) (Washington II) (noting the Court's obligation to liberally construe the remedial provisions of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 685). Section 63301 is remedial legislation. Katz v. Commissioner, 115 T.C. 329, 333 n.8 (2000) ("Congress enacted secs. 6320 (pertaining to liens) and 6330 (pertaining to levies) to provide new protections for taxpayers with regard to collection matters."); S. Rept. 105-174, at 67 (1998), 1998–3 C.B. 537, 603 ("The Committee believes that taxpayers are entitled to protections in dealing with the IRS *** The Committee believes that following procedures designed to afford taxpayers due process in collections will increase fairness to taxpayers.").

Section 6330(d): Jurisdiction

Our collection action review jurisdiction is set forth in section 6330(d). Section 6330(d) provides: “(1) Judicial Review of Determination.-The person may, within 30 days of a determination under this section, appeal such determination—(A)

1 Unless otherwise indicated, all section references are to the applicable Internal Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure.

to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter)". The requirements for exercising our jurisdiction under section 6330 are that "we have general jurisdiction over the type of tax involved, a 'determination' by Appeals and a timely [filed] petition". Lunsford v. Commissioner, 117 T.C. 159, 161 (2001).

Petitioner filed a timely petition with the Court in this case in response to the notice of determination. Accordingly, we have jurisdiction over petitioner's case, and the instant controversy is within the jurisdiction of the Court. Id.; see Woods v. Commissioner, 92 T.C. 776, 787 (1989). Once a taxpayer invokes the jurisdiction of the Court, jurisdiction lies with the Court and remains unimpaired until the Court has decided the controversy. Naftel v. Commissioner, 85 T.C. 527, 529-530 (1985); Dorl v. Commissioner, 57 T.C. 720, 722 (1972), affd. 507 F.2d 406 (2d Cir. 1974).

The U.S. Court of Appeals for the Ninth Circuit recently addressed mootness in the context of section 7436 (employment classification) cases. Charlotte's Office Boutique, Inc. v. Commissioner, 425 F.3d 1203 (9th Cir. 2005), affg. 121 T.C. 89 (2003). The Commissioner argued that there was no actual case or controversy that a certain individual was an employee of the taxpayer, and accordingly this deprived the Tax Court of jurisdiction. Id. at 1206, 1207. In affirming that the Tax Court had jurisdiction, the court noted: "the Commissioner's approach is contrary to the prevalent approach to subject-matter jurisdiction and the few cases *** [that have] considered the Tax Court's jurisdiction.

* as a general matter a federal court's subject-matter jurisdiction is determined at the time it is invoked." Id. at 1208.

Additionally, the Commissioner's concession of a deficiency in a deficiency case does not deprive the Tax Court of jurisdiction over the subject matter of that year; it is the determination of a deficiency, rather than the existence of a deficiency, that is dispositive as to our jurisdiction. Id. at 1209 (citing the Tax Court's reasoning in the underlying case concluding we had jurisdiction, in which we cited LTV Corp. v. Commissioner, 64 T.C. 589 (1975), and Hannan v. Commissioner, 52 T.C. 787, 791 (1969)).

I do not believe that the Commissioner can unilaterally deprive the Court of jurisdiction in section 6330 cases by