Opinion
CIVIL ACTION No. 02-1153-MLB
January 8, 2003
MEMORANDUM AND ORDER
Before the court are the following:
1. United States' motion to dismiss (Doc. 4);
2. Plaintiff's response (Doc. 6); and
3. United States' reply (Doc. 7).
Plaintiff filed this action pro se, styling it as an "appeal of determination of collection due process hearing pursuant to 26 U.S.C. § 6320." Section 6320 and its companion, § 6330, provide for notice and opportunity for hearing upon filing of notice of lien and before levy, respectively. Both statutes permit the taxpayer to request a hearing before an IRS appeals officer within a 30-day period. The starting dates of the 30-day periods are set forth in the statutes.
The following dates appear in the court file. The United States has provided an affidavit of an Internal Revenue Service officer which states, in pertinent part:
On or about January 12, 2001, notices of federal tax lien were filed against plaintiff and or about January 18, 2001 a form 3172, "Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320", was generated and sent to plaintiff. The IRS does not retain a copy of the Form 3172 but a facsimile copy can be retrieved from the computer system. A facsimile copy of the notice is attached hereto as Exhibit 1. The notice was mailed by certified mail to plaintiff's last known address.
On or about August 2, 2001, a Form 1058, "Final Notice — Notice of Intent to Levy and Notice of Your Right to a Hearing" was generated and sent to plaintiff. A copy of the Form 1058 is not retained by the IRS and is not kept on the computer system. However, a copy of a blank Form 1058 is attached hereto as Exhibit 2. On or about August 2, 2001, the notice was mailed by certified mail to plaintiff's last known address.
(Doc. 4, Affidavit of Richard Turner).
According to the allegations of plaintiff's complaint and Exhibit B, attached thereto, plaintiff made a written request for a collection due process hearing on November 16, 2001, which was stamped "received" by the IRS on the same day. The IRS scheduled a hearing for February 5, 2002 but, at plaintiff's request, the hearing was continued until February 12. A transcript of that hearing is attached to plaintiff's complaint (Doc. 1, Ex. D.).
At the outset of the hearing, the hearing officer informed plaintiff that the hearing was being "afforded" pursuant to §§ 6320 and 6330 but that because plaintiff had not filed his request tar a hearing within 30 days, the hearing "is an equivalency hearing to the collection due process hearing" and that plaintiff had no right to judicial review. (Doc. I, Ex. D. at 5-6). An "equivalency hearing" apparently is authorized by § 301.6330-1T(i), Temporary Procd. Admin. Regs., 64 Fed. Reg. 3413 (Jan. 22, 1999). Plaintiff, who despite his pro se status seemed to be familiar with tax laws and regulations, told the hearing officer that he did not receive a "statutory notice and demand for payment" (form 1058). The hearing officer responded, with considerable logic, that plaintiff must have received the form 1058 because it contained form 12153, which plaintiff used to request "this hearing." (Doc. 1, Ex. D at 10-11). Plaintiff and the hearing officer spent most of the hearing discussing matters which are not relevant to any issue before this court but at the end of the hearing, plaintiff maintained his position that he had never received statutory notice and demand for payment which he then described as "form 17A." (Id. at 24). The difference, if any, between forms 1058 and 17A is not explained in the parties' submissions.
26 U.S.C. § 6330 (d) provides, in pertinent part:
Proceeding after hearing. —
(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 matter); or
(B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States.
If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court.
The "determination" referred to in § 6330(d) was made in an IRS "decision letter" dated April 5, 2002 (Doc. 1, Ex. A). Plaintiff filed this action on May 6, 2002.
Despite the provisions of § 6330(d), which raise the possibility that plaintiff's case in this court was either untimely filed and/or filed in the wrong court, the United States has moved to dismiss on a completely different ground. Citing a trio of Tax Court cases, the United States contends that this case must be dismissed for lack of jurisdiction because plaintiff failed to request a collection due process hearing within the 30-day periods set forth in §§ 6320 and/or 6330.
Johnson v. Commissioner, 86 A.F.T.R.2d 2000-5225 (D. Or. 2000);Kennedy v. Commissioner, 116 T.C. 255 (2001); Moorhous v. Commissioner, 116 T.C. 263 (2002)
In Kennedy v. Commissioner of Internal Revenue, the Tax Court (which presumably knows far more about tax law and regulations than this court) ruled that judicial review is precluded when the taxpayer fails to comply with the 30-day notice of appeal requirements of § 6320 and/or 6330, even though the IRS subsequently grants the taxpayer an "equivalency hearing" and even though (presumably) a complaint seeking judicial review is timely filed after issuance of the IRS's decision letter. The Tax Court found that it had no jurisdiction and dismissed the case.
At this juncture, this court need not decide whether the Tax Court's decisions cited by the United States are correct. The immediate problem with its motion, and the reason this court cannot grant it on the present record, is that the United States has not provided sufficient evidence that plaintiff received the notice (or notices) which purportedly triggered the 30-day deadline (or deadlines) which plaintiff allegedly missed. In his affidavit, Officer Tucker states that form 1058 was mailed by certified mail to plaintiff's last known address on October 2, 2001, yet he does not provide evidence of the certified mailing or plaintiff's receipt of the notice. Although plaintiff's protestation that he did not receive the notice seems highly suspect in light of the fact that he requested a hearing in November 2001, the court is not prepared to rule at this time that it lacks jurisdiction based on the only ground raised by the United States.
Accordingly, the court will deny the United States' motion to dismiss, but without prejudice. If the motion is renewed, the parties should review Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) and United States v. Rodriquez Aguirre, 264 F.3d 1195 Cloth Cir. 2001), which discuss the important distinction between motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The parties' attention also is directed to True v. Commissioner of Internal Revenue, 108 F. Supp.2d 1361 (M.D. Fla. 2000) and McCandless v. United States, No. C-02-2573-EDL, 2002 WL 31487885 (N.D. Cal. Nov. 1, 2002), which may support the proposition that this case should be before the Tax Court.
Accordingly, the United States' motion to dismiss (Doc. 4) is denied, without prejudice. If the motion is renewed, it shall be filed on or before January 31, 2003.
IT IS SO ORDERED.