Summary
stating that there is no requirement that the taxpayer receive documentation at a CDP hearing that supports the imposition of penalties
Summary of this case from Frese v. U.S.Opinion
Case No. 04-0420-CV-W-ODS.
August 30, 2004
ORDER GRANTING UNITED STATES' MOTION TO DISMISS
Pending is the United States' Motion to Dismiss (Doc. # 5) for failure to state a claim upon which relief can be granted. For the following reasons, the motion is granted.
I. BACKGROUND
On December 6, 2002, Plaintiff requested a Collection Due Processing Hearing ("CDP Hearing"), with regard to whether the United States could legally seize Plaintiff's property in connection with a $500 frivolous penalty for years 1993 through 2000. The hearing was held on March 18, 2004, during which Plaintiff challenged the appeals officer's authority, the lack of documentation imposing the "frivolous" return penalties and other procedural irregularities. The appeals officer sent Plaintiff the transcript of the hearing and documents evidencing the penalty on March 25, 2004. On April 14, 2004, the IRS sent Plaintiff a Notice of Determination Concerning Collection Action(s) Under Section 6320 and 6330, which stated that Plaintiff's challenges to the Internal Revenue Code were not relevant, and he had not proposed a less intrusive means of resolving the tax debt.
Plaintiff Ronald G. Ray filed the above-captioned matter on May 6, 2004, requesting that the Court set aside the Internal Revenue Service's Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or Section 6330. On July 2, 2004, the United States filed its Motion to Dismiss for Failure to State a Claim.
II. STANDARD
A motion to dismiss for failure to state a claim should be granted when it appears that "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993) (citingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to dismiss, the Court is required to view the facts alleged in the complaint in the light most favorable to the Plaintiff.
III. DISCUSSION
The issue before this Court is whether the IRS Appeals Office met all requirements of the applicable laws and properly followed administrative procedures when it made its determination that the collection against Plaintiff should continue. Procedures for administrative collection actions are governed by 26 U.S.C. § 6330, which requires, among other things, that proper notice be given to the taxpayer regarding his right to request a CDP Hearing, a fair hearing is conducted, and, under certain circumstances, the taxpayer is given an opportunity to challenge the existence of the underlying tax liability. 26 U.S.C. § 6330 (2002).
Plaintiff alleges that the Internal Revenue Service violated section 6330 because he did not receive a valid notice and demand letter, and he did not receive a fair and valid hearing. Upon review of the Complaint and accompanying exhibits, the Court finds that a timely and valid notice of the levy was sent via certified mail to Plaintiff's last known address. See Ex. A to Pl.'s Compl. A notice of a person's right to a CDP Hearing shall be given in person to the taxpayer, left at the taxpayer's dwelling or sent by certified mail to the taxpayer's last known address. 26 U.S.C. § 6330(a). Because the notice was sent via certified mail to Plaintiff's last known address, the notice was valid. In fact, within three weeks of the letter being sent, Plaintiff timely asked for a CDP Hearing.
Plaintiff also argues that he did not receive a fair and valid hearing because (1) the Treasury Department regulation that authorizes such penalties was not identified; (2) the Delegation of Authority to support the imposition of the penalties was not identified; and (3) the documentation supporting the imposition of the penalties was not provided. However, there are no requirements that such information be given to Plaintiff. See Rennie v. Internal Revenue Serv., 216 F. Supp.2d 1078, 1082 (E.D. Cal. 2002) (finding that the there are no requirements to produce the Treasury Department regulation that authorized the imposition of such penalties or to publish the internal delegations of administrative authority to enforce the Internal Revenue Code);Roberts v. Commissioner of Internal Revenue, 329 F.3d 1224, 1228 (11th Cir. 2003) (stating that section 6330(c)(1) does not require the Appeals Officer to provide the taxpayer with a copy of the verification that the requirements of the applicable statutes or regulations have been met); Ray v. United States, 291 F. Supp.2d 1179, 1181 (D. Nev. 2003) (stating that there is no requirement that the taxpayer receive documentation that supports the penalties at a CDP hearing). These allegations do not state a claim upon which relief can be granted. As such, Plaintiff cannot prove a set a facts that would support a claim that the requirements of section 6330 were not met.
III. CONCLUSION
For the foregoing reasons, the United States' Motion to Dismiss is granted.
IT IS SO ORDERED.