Opinion
No. 06-MC-00010 BV.
July 14, 2006
REPORT AND RECOMMENDATION ON PETITION TO QUASH THIRD-PARTY SUMMONS
Before the court is the May 22, 2006 petition filed by William Boyer, proceeding pro se, to quash third party summonses issued by the Internal Revenue Service ("IRS"). Also before the court is the July 11, 2006 motion of the IRS for denial of the petition to quash and for summary enforcement of the summonses. Both Boyer's petition and the IRS's motion were referred to the United States Magistrate Judge for determination. A hearing was held on July 13, 2006. Present at the hearing was Joshua D. Smeltzer, counsel for the IRS. Boyer failed to appear. For the reasons that follow, it is recommended that Boyer's petition to quash be dismissed in part for lack of jurisdiction, and the IRS's motion for summary denial of the petition to quash be granted in part.
Boyer filed an amended petition on May 26, 2006 adding the summons issued to Regions Bank.
Boyer seeks to quash seven administrative summonses issued by the IRS in connection with a criminal investigation of Boyer. Two of the summonses were served on non third-party recordkeepers: (1) Bellevue Baptist Church, and (2) Life Choices, Inc. The other five summonses were served on the following third-party recordkeepers: (1) Regions Bank; (2) Franklin American Mortgage Co.; (3) Boston Financial Data Services; (4) AmSouth Bank; and (5) Trust One Bank.
As to Bellevue Baptist Church and Life Choices, Inc., the petition to quash should be dismissed. Neither of these entities are third-party recordkeepers. The IRS is not required to provide notice of summonses issued to non third-party recordkeepers. 26 U.S.C. § 7609(a). The IRS has only waived sovereign immunity where the taxpayer is entitled to notice. Id. at § 7609(b). Thus, the court lacks jurisdiction over the petition as it relates to Bellevue Baptist Church and Life Choices, Inc., and the petition to quash the Bellevue Baptist Church and the Life Choices, Inc. summonses should be dismissed for lack of jurisdiction.
As to Regions Bank, the petition to quash should also be dismissed. A petition to quash an administrative summons issued by the IRS to a third-party recordkeeper must be filed within twenty days of the date of notice to the taxpayer. Id. at § 7609(b)(2)(A). The twenty-day period is treated like a jurisdictional statute of limitations. See Faber v. United States, 921 F.2d 1118, 1120 (10th Cir. 1990) (district court lacked jurisdiction where petition to quash was untimely filed). Notice of the summons to Regions Bank was given to Boyer on May 2, 2006. Boyer did not file his petition to quash the Regions Bank summons until May 26, 2006. Thus, Boyer's petition to quash the Regions Bank summons is untimely, and the petition to quash the Regions Bank summons should be dismissed for lack of jurisdiction.
As to Boston Financial Data Services and Franklin American Mortgage, Co., the petition to quash should also be dismissed. A petition to quash an IRS summons must be filed in the judicial district in which the summoned party is located. See Deal v. United States, 759 F.2d 442 (5th Cir. 1985) (holding that jurisdiction over taxpayer's petition to quash IRS third-party recordkeepers' summonses was exclusively in district where recordkeepers reside). Boston Financial Data Services is located in Boston, Massachusetts, which is not in this district. Franklin American Mortgage Co. is located in Franklin, Tennessee, which is not in this district. Thus, the court lacks jurisdiction over these two summonses, and the petition to quash the summons to Financial Data Services and the summons to Franklin American Mortgage Co. should be dismissed for lack of jurisdiction.
Boyer's petition to quash the summonses issued to AmSouth Bank and Trust One Bank and the IRS's motion for summary enforcement of these two remaining summonses will be considered in a separate report and recommendation after Boyer has had time to respond to the motion.