Opinion
Civil Action No. 05-3819.
March 20, 2006
REPORT AND RECOMMENDATION
INTRODUCTION
This matter comes before me on a motion to dismiss the Complaint pursuant to Rule 12(b)(1). The motion was referred to me by Judge Linares. I have considered the papers submitted in support of and in opposition to the motion. There was no oral argument. Rule 78.
BACKGROUND
Pro se plaintiff alleges that he was denied his administrative remedies provided under IRS Code § 6330, which outlines rights of taxpayers and procedures to be followed when imposing a tax levy. Under § 6330, there must be written notice of IRS intent to levy, the right to request a hearing, and the administrative appeals available to the taxpayer. Further, a taxpayer may raise relevant issues relating to the levy or the tax liability. The moving defendant is an appeals officer of the Internal Revenue Service, Ronald Lipuma ("defendant").
This action arises from plaintiff's receipt of a Final Notice of Intent to Levy and Notice of Your Right to a Hearing from the Internal Revenue Service. (Compl. ¶ 12.) After plaintiff's request for a Collection Due Process ("CDP") hearing, he received a letter dated April 27, 2005, from defendant in his capacity as a settlement officer of the IRS. This letter stated that the arguments offered in plaintiff's request for a CDP hearing were frivolous or groundless (Compl. ¶ 14.) A Notice of Determination dated May 23, 2005, was sent to plaintiff from defendant. In response to this notice plaintiff filed this action, seeking equitable relief on the grounds that his due process rights had been violated by refusing a face-to-face CDP hearing.
Defendant now moves to dismiss based on Rule 12(b)(1). Defendant claims that this Court lacks subject matter jurisdiction as plaintiff's proffered grounds of federal question jurisdiction under 28 U.S.C. §§ 1331, 1361, and 1391 lack merit.
DISCUSSION
Rule12(b)(1) allows a court to dismiss a complaint for lack of subject matter jurisdiction. When jurisdiction is challenged, the burden of proof rests on the party asserting it. Tobin v. United States, 170 F. Supp. 2d 472, 476 (D.N.J. 2001). The court must first determine whether the motion is a facial attack on the complaint or an attack on the facts. Carpet Group Int'l v. Oriental Rug Imp. Ass'n, 227 F. 3d 62, 69 (3d Cir. 2000). When a court addresses a facial attack on a complaint it must, as with a 12(b)(6) motion, accept all allegations as true and then only answer the legal question. However, when a complaint is attacked on the existence of subject matter jurisdiction in fact, the court is not obligated to only look at the face of the complaint, but, instead, may consider matters outside the pleadings.Mortensen v. First Federal Savings Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). Further, the nature of the relief sought is also exceptional. "A writ of mandamus is an extraordinary remedy that may only be invoked in exceptional circumstances." Carmichael v. Everson, 2004 U.S. Dist. LEXIS 3451, *2 (D.N.J. Jan. 27, 2004).
Plaintiff first argues for jurisdiction under 28 U.S.C. § 1331, claiming he has suffered a violation of his rights granted by the Constitution and, further, that defendant may not assert sovereign immunity under the provisions of the Federal Tort Claims Act. As a preliminary matter, even though the IRS or the United States have not been named as parties, plaintiff cannot avoid that "it is well-settled that `a suit against IRS employees in their official capacity is essentially a suit against the United States.'" Bell v. Rossotti, 227 F. Supp. 2d 315, 320 (M.D. Pa. 2002). Contrary to plaintiff's contentions, the § 1331 claim fails due to sovereign immunity. As stated in Bell, the real party in interest here is the United States as a suit against an IRS employee in his official capacity is in reality a suit against the United States. Even though plaintiff chose only to name defendant, "[s]overeign immunity is not defeated by the act of naming officers and employees of the United States as defendants in a suit that properly is against the United States."Bell, 227 F. Supp. 2d at 320; see Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 688 (1949); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). "The IRS enjoys sovereign immunity as an agency of the United States unless that immunity has been waived by Congress." Martin v. Logan, 2006 U.S. Dist. LEXIS 5320, *8 (D.N.J. Jan. 20, 2006). The United States has not expressly waived sovereign immunity here.
Alternatively, plaintiff rests jurisdiction on 28 U.S.C. § 1361, seeking mandamus relief for a constitutional duty that plaintiff alleged is owed to him by defendant acting in his official capacity as an officer of the IRS. "Under 28 U.S.C. § 1361, a district court has jurisdiction over actions `in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.' In order to compel performance under a writ of mandamus, the party must demonstrate `a clear right to have an action performed by a governmental official who refuses to act.'" Carmichael v. Everson, 2004 U.S. Dist. LEXIS 3451, *3 (D.N.J. Jan. 27, 2004). To be successful in seeking mandamus relief, defendant's duty must be to afford plaintiff a "clear right" to a face-to-face CDP hearing. However, CDP hearings fall far short of the requirements for mandamus relief. The CDP hearing is an informal procedure that is not covered under the Administrative Procedure Act. Therefore, a face-to-face meeting is not mandated under § 6330. "Indeed, the regulations plainly state that CDP hearings are `informal in nature' and `do not require the Appeals officer . . . to hold a face-to-face meeting.'" Gardner v. United States, 2005 U.S. Dist. LEXIS 12364, *7 (D.N.J. Apr. 5, 2005) (citing 26 C.F.R. § 301.6330-1(d)(2). QA-D6). As plaintiff cited QA-D7 in his May 6, 2005, letter to defendant, it is difficult to believe that this escaped his attention. Further, "the need for a face-to-face [CDP] hearing appears minimal, and in turn a telephonic or correspondence hearing seems appropriate, as the taxpayer is not permitted to subpoena or examine witnesses at the CDP hearing." Tinnerman v. IRS, 2005 U.S. Dist. LEXIS 14244, *6 (M.D. Fla. May 10, 2005). "It is clearly settled and consistent with the informal nature of the hearings that, as a matter of law, a taxpayer has no intrinsic right to a face-to-face collection due process hearing under I.R.C. § 6330." Cobin v. United States, 2005 U.S. Dist. LEXIS 14490, *17 (D.S.C. June 22, 2005).
Q-D6. "How are CDP hearings conducted?"
A-D6. "The formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. 551 et seq., do not apply to CDP hearings. CDP hearings are much like Collection Appeal Program (CAP) hearings in that they 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."
Plaintiff is also mistaken in his demand to create an audio recording of any CDP hearing. This is a creation of a record that is only required with formal adjudication under the Administrative Procedure Act, and the IRS officer is not required to allow the taxpayer to tape the hearing. See Jewett v. Commissioner, 292 F. Supp. 2d 962, 966-967 (N.D. Ohio Oct. 7, 2003); Rohner v. United States, 2003 U.S. Dist. LEXIS 10358, *17-18 (D. Ohio Apr. 9, 2003).
Finally the plaintiff attempts to rest jurisdiction on 28 U.S.C. § 1391. This assertion is also in error. Defendant correctly notes that § 1391 only addresses venue. See Morgan v. Logan, 2006 U.S. Dist. LEXIS 5320, *17 (D.N.J. Jan. 20, 2006).
CONCLUSION
For the reasons set forth above, I recommend that defendant's motion to dismiss the Complaint pursuant to Rule 12(b)(1) be GRANTED.
Pursuant to Local Civil Rule 72.1(c)(2), the parties have ten (10) days from receipt of this Report and Recommendation to file and serve objections.