Opinion
CASE NO. 1:03 CV 1828
December 3, 2003
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon defendant's Motion to Dismiss (Doc. 5). For the following reasons, the Motion is UNOPPOSED and GRANTED.
Facts
Plaintiff, Ronnie Lee Snyder, initiated this action by filing a Complaint, Appeal from Internal Revenue Service Collection Due Process Hearing. Plaintiff named Commissioner of Internal Revenue Service, United States of America, as defendant.
The Complaint alleges the following. Plaintiff demanded a Collection Due Process hearing with the IRS challenging non-payment of federal taxes. In his demand, plaintiff gave notice that he would be making an audio recording of the hearing and would have a stenographer present to transcribe the hearing. On January 16, 2003, plaintiff attended the Collection Due Process hearing in Columbus, Ohio. The hearing officer refused to allow plaintiff to record the hearing by audio recording device or by stenographic transcription, although plaintiff had a court reporter present at the hearing. The hearing proceeded with plaintiff's participation. The refusal to permit recording of the hearing deprived plaintiff of due process as set forth in 26 U.S.C. § 6330. Plaintiff had a right to record the hearing under 26 U.S.C. § 7521.
Documents attached to the Complaint reveal additional facts which are also incorporated herein.
Following the Collection Due Process hearing, the IRS sent two Notices of Determination Concerning Collection Actions Under Section 6320 and 6330. Plaintiff was assessed for his tax deficiencies as well as a penalty under 26 U.S.C. § 6702 for refusal to pay taxes for a frivolous reason. That portion of plaintiff's petition for review to the Tax Court of the § 6702 penalties was dismissed for lack of jurisdiction.
The Complaint sets forth one claim for relief. Plaintiff asserts that he was entitled to record the Collection Due Process hearing. Plaintiff asks this Court to remand this case to the IRS Appeals Office with the direction that plaintiff be offered a § 6330 hearing with permission to record by audio device or stenographer.
This matter is now before the Court upon defendant's Motion to Dismiss. Plaintiff has not opposed the Motion.
Standard of Review
When considering a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations of the complaint must be taken as true and construed liberally in favor of plaintiff. Lawrence v. Chancery Court of Tenn., 188 F.3d 687 (6th Cir. 1999). The complaint is only to be dismissed if the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957), Hammond v. Baldwin, 866 F.2d 172 (6th Cir. 1989). However, the complaint must set forth "more than the bare assertion of legal conclusions. In Re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).
Discussion
Despite his assertion to the contrary, plaintiff has no right to record the Collection Due Process hearing, or to have a court reporter transcribe the hearing stenographically.
Federal Regulations state that Collection Due Process 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. A transcript or recording of any face-to-face meeting or conversation between an Appeals officer or employee and the taxpayer or the taxpayer's representative is not required. The taxpayer or the taxpayer's representative does not have the right to subpoena and examine witnesses at a CDP hearing.26 C.F.R. § 301.6330-1(d)(2), A-D6. Plaintiff herein asserts that 26 U.S.C. § 7521(a), which allows the taxpayer to make an audio recording "in connection with any in-person interview . . . relating to the determination or collection of any tax," guarantees his right to record the Collection Due Process hearing. Identical claims have been rejected. In Yuen v. U.S., 2003 WL 22429273, — F. Supp.2d — (D.Nev. August 6, 2003), the plaintiff requested that the Court invalidate the Collection Due Process hearing on the grounds that he was prohibited from making an audio recording of the hearing. Plaintiff asserted that such action was in violation of 26 U.S.C. § 7521(a). The court disagreed and stated,
. . . as Defendant points out, the legislative history of § 7521 indicates that the right to an audio recording refers only to compulsory hearings initiated by the IRS. See Conf. Rep. No. 1104, 100th Cong., 2d Sess. 213, vol. 2 (1988). A collection due process hearing is not compulsory and is initiated, as it was in this case, by the Plaintiff. A 9th Circuit District Court has held that `the collection due process hearings are supposed to be informal and there is no requirement that the hearings be recorded.' Rennie v. Internal Revenue Service, 216 F. Supp.2d 1078, 1079 n. 1 (E.D.Cal.2002). Although the United States Tax Court has held that a taxpayer has a right to record a collection due process hearing, the holding was limited to cases in which the taxpayer's arguments were not found frivolous. Brashear v. Commissioner, 196 T.C.M. (RIA) (2003). As Plaintiff's arguments in this case are frivolous under well-settled law, he has no right to record his collection due process hearing.See also Ray v. U.S., 2003 WL 22272913, — F. Supp.2d — (D.Nev. July 29, 2003) ("Plaintiff additionally argues that the IRS's determination should be set aside because he was prohibited from recording the hearing, in violation of 26 U.S.C. § 7521. However, § 7521, which allows taxpayers to make an audio recording in connection with any in-person interview, is inapplicable to § 6330, which refers to a hearing, not an interview. See 26 U.S.C. § 6330. Furthermore, Collection Due Process hearings are supposed to be informal and there is no requirement that the hearings be recorded. See Rennie v. IRS, 216 F. Supp.2d 1078, 1079 n. 1 (E.D.Cal.2002).)
Thus, § 7521 does not require that plaintiff be permitted to record his Collection Due Process hearing and, as stated above, it has been found that plaintiff failed to pay his taxes for a frivolous reason.
Conclusion
For the foregoing reasons, defendant's Motion to Dismiss is unopposed and granted.
IT IS SO ORDERED.