Opinion
01-CV-73 (NG)
July 24, 2002
ORDER
Plaintiff Henry Guy, by complaint filed January 8, 2001, brings this action against the United States of America and the Commissioner of the Internal Revenue Service ("IRS") seeking judicial review of a determination by an IRS appeals officer regarding a penalty imposed on plaintiff for the late filing of a Form 550-EZ, Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan for the 1997 tax year. Defendants move for an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the ground that the action is untimely.
The IRS is required to give notice to a taxpayer in writing at least 30 days prior to a proposed levy. 26 U.S.C. § 6330 (a). The notice shall inform the taxpayer of his right to a collection due process ("CDP") hearing. 26 U.S.C. § 6330 (a)(3). The taxpayer has the right to a fair CDP hearing before an impartial appeals officer who has no prior involvement with respect to the unpaid taxes. 26 U.S.C. § 6330 (b). The Internal Revenue Code also provides for judicial review of the appeals officer's determination following the CDP hearing. It states as follows:
(1) Judicial review of determination. — The person may, within 30 days of a determination under this section, appeal such determination —
(A) to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matters); or
(B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States.26 U.S.C. § 6330 (d). This 30 day time-limit is 30 calendar days, not 30 business days. See Guerrier v. Commissioner of Internal Revenue, 2002 WL 15567 (U.S. Tax Ct. 2002).
In this case, plaintiff did not file his complaint until Monday, January 8, 2001, which is 33 days after the IRS issued and mailed a Notice of Determination on December 6, 2000. Plaintiff argues that the determination was made on December 8, 2000, and that, since the date stamp on the Notice of Determination is unclear, it should be construed against the defendants. However, the date stamp on both the Notice of Determination and the IRS Form 3877, which reflects the date the Notice of Determination was mailed, clearly indicate that the determination was made on December 6, 2000.
Plaintiff also argues that he had executed a power of attorney empowering his lawyer to take actions in this matter, but the notice of determination was improperly sent to plaintiff instead of his lawyer. As an initial matter, there is no evidence that a power of attorney was ever sent to the IRS. Plaintiff relies on an unsigned cover-letter from his lawyer to the appeals officer dated June 28, 2000, which claims it is enclosing an executed power of attorney, but plaintiff does not submit proof that this letter was mailed or any document addressed to the IRS with his signature giving his lawyer power of attorney. Moreover, even if plaintiff had executed a power of attorney, he does not claim, let alone cite any authority for the proposition that, the deadline under 26 U.S.C. § 6330 (d)(1) may be tolled, equitably or otherwise, under these circumstances. Even if such authority exists, plaintiff has not shown that he acted with reasonable diligence to file the complaint on time.
Next, plaintiff argues that this court has jurisdiction, despite his late filing, because the INS never held a face-to-face hearing. However, "in determining the validity of a notice of determination for jurisdictional purposes, we shall not look behind such a notice in order to ascertain whether the taxpayer was afforded an appropriate hearing with respondent's Appeals Office." Id. (citing Lunsford v. Commissioner, 117 T.C. 159, 164 (2001)). Finally, plaintiff argues in opposition to defendants' motion that this court has jurisdiction pursuant to 28 U.S.C. § 1361 to issue a writ of mandamus to order the INS to hold a face-to-face hearing, which, according to plaintiff, is "a duty owed to the plaintiff." 28 U.S.C. § 1361. However, plaintiff never invoked mandamus jurisdiction, or challenged the failure of the agency to hold a hearing, in the complaint. Moreover, defendants did not owe plaintiff a duty to hold a face-to-face hearing. CDP Hearings are:
informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer's representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer's representative, or some combination thereof.26 C.F.R. § 301.6330-1, A-D6.
In sum, the action is untimely under 26 U.S.C. § 6330 (d), and thus this court lacks jurisdiction. 26 U.S.C. § 6330 (d)(1). Defendants' motion to dismiss is granted.
The clerk of court is directed to close this case.
SO ORDERED.