Opinion
l:02CV01019
December 2, 2003
MEMORANDUM OPINION
Plaintiff James T. Brown, acting pro se, filed this action against Defendants Robert M. Doran and Kami Keeley, Internal Revenue Service employees, alleging that they denied his due process rights by refusing to grant him a "Collection Due Process" hearing pursuant to I.R.C. § 6330(b) prior to an Internal Revenue Service ("IRS") levy against his property. This matter is now before the court on Defendants' motion to dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated herein, Defendants' motion will be granted.
I. FACTUAL BACKGROUND
This case revolves around the IRS's attempt to issue a levy in order to collect Plaintiff's unpaid federal taxes from the years 1995, 1996, 1997, and 1998. On February 4, 2002, the IRS issued its Notice of Intent to Levy notifying Plaintiff of his right to have a "Collection Due Process" ("CDP") hearing by the IRS Office of Appeals pursuant to I.R.C. § 6330(b). Sometime in March 2002, Plaintiff replied by letter, requesting such a hearing. On June 4, 2002, Defendant Keeley notified Plaintiff by letter that he would be contacted within 60 days to arrange a hearing. On June 22, 2002, Plaintiff sent a letter to Defendant Keeley informing her of his intent to record the CDP hearing. On August 1, 2002, Defendant Keeley sent Plaintiff a letter scheduling his CDP hearing for September 5, 2002. In the same letter, Defendant Keeley indicated that pursuant to an IRS memorandum, no recording of the hearing would be permitted.
When Plaintiff arrived for his hearing, he was confronted by Defendant Keeley and a male associate. The two asked whether Plaintiff intended to record the hearing, and when he responded affirmatively, indicated that his only choices were proceeding with the hearing without the recorder or leaving without having the hearing. After more discussion, the two IRS workers had Plaintiff escorted from the building by a security guard. Later that day, Defendant Keeley sent Plaintiff a letter, which indicated that the Office of Appeals would make a determination in his case in two weeks and gave him until September 16, 2002, to supply additional information relevant to that determination. On October 25, 2002, Defendant Doran sent Plaintiff a Notice of Determination. The Notice indicated that Defendant Doran believed that all statutory requirements had been met and that the levy was not overly intrusive. The Notice also informed Plaintiff of his right to appeal the determination.
On November 22, 2002, Plaintiff responded to Defendant Doran's letter, which asserted that the IRS had not followed proper procedures in deciding his case and demanded a redetermination with a proper CDP hearing. The same day, Plaintiff filed this action. Defendants have moved to dismiss the action alleging that this court lacks subject matter jurisdiction over Plaintiff's claims, that Plaintiff failed to properly serve process on the United States, and that he failed to join a necessary party.
II. ANALYSIS
When a plaintiff brings an action pro se, courts hold his pleadings to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972). For this reason, pro se complaints are construed liberally, and meritorious claims should not be disposed of on "technical niceties." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). Despite the leeway given to pro se litigants, it is still their responsibility to ensure their actions are within the jurisdiction of the district court.
When, as here, a defendant's motion to dismiss challenges a federal court's subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of proving that such jurisdiction exists. Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). A court should dismiss an action for want of subject matter jurisdiction "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg Potomac R.R. Co. v. United States. 945 F.2d 765, 768 (4th Cir. 1991)). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court may consider materials beyond the bare pleadings. Evans, 166 F.3d at 647.
Under § 6330 of the Internal Revenue Code, a person must receive notice from the IRS before any levy is made against his property to pay unpaid taxes. I.R.C. § 6330(a)(1). Among the information that must be included in the notice is the fact that the person has the right to request a CDP hearing. Id. § 6330(a)(3)(B). If the person requests such a hearing, it is held by an impartial officer of the Office of Appeals of the IRS. Id. § 6330(b). After the appeals officer makes a final determination in the case, the taxpayer has 30 days to file an appeal. Id. § 6330(d)(1). Appeal is to the United States Tax Court, unless the tax is a type over which the Tax Court does not have jurisdiction, in which case the appeal may be made in a district court. Id. § 6330(d)(1)(A) — (B).
Plaintiff argues that he is not seeking an appeal of the determination made by the appeals officer, but instead that he seeks redress of his alleged denial of due process through an injunction forcing Defendants to grant Plaintiff a CDP hearing. Nevertheless, the types of issues Plaintiff wants to raise regarding his opportunity to have a hearing and whether the hearing was conducted properly and fairly are issues that can be considered by the Tax Court on appeal. Lunsford v. Commissioner, 117 T.C. 159, 164 (2001); see also White v. United States, 250 F. Supp.2d 919, 922-23 (M.D. Tenn. 2003) (holding that the district court had no jurisdiction over the plaintiff's claims that he had been denied due process in a CDP hearing); True v. Commissioner, 108 F. Supp.2d 1361, 1364 (M.D. Fla. 2000) (same). Indeed, if the Tax Court concludes that the determination by the Appeals Office was made "not in accordance with law" or "without observance of procedure required by law," the Tax Court is empowered to set aside the determination and take other appropriate action. See Lunsford, 117 T.C. at 168 (Halpern, J., concurring) (analogizing Tax Court review to review under § 706 of the Administrative Procedure Act, 5 U.S.C. § 706).
Because the tax underlying this dispute is income tax, it is the type of case under § 6330(d)(1)(A) over which the Tax Court has exclusive jurisdiction. Diefenbaugh v. Weiss, No. 00-3344, 2000 WL 1679510, at *1 (6th Cir. Nov. 3, 2000); United States v. Summers, 254 F. Supp.2d 589, 595 (E.D. Pa. 2003); True, 108 F. Supp.2d at 1364. Moreover, the Tax Court's jurisdiction is available to a taxpayer as soon as the determination by the Office of Appeals is made, even if the taxpayer asserts that the determination is invalid because the Office of Appeals failed to follow proper procedures. See Lunsford, 117 T.C. at 164 (holding that the Tax Court will not "look behind the determination to see whether a proper hearing was offered in order to have jurisdiction").
Plaintiff asserts that the tax he purportedly owes is an "employment tax" not within the jurisdiction of the Tax Court. The exhibits attached to his "Memorandum in Support of Complaint for Violation of Federal Law," however, make clear that the dispute regards taxes from Form 1040 for personal income.
Because this case is within the exclusive jurisdiction of the Tax Court, this court must dismiss for lack of subject matter jurisdiction. As Defendants correctly note, however, Plaintiff will have 30 days from the dismissal of this case to refile in the Tax Court. See I.R.C. § 6330(d)(1).
As such, the court will not address Defendants' contentions that the United States was not properly served with process and that Plaintiff has failed to join a necessary party as a defendant.
III. CONCLUSION
For the reasons stated herein, the court will grant Defendants' Motion to Dismiss. A judgment in accordance with this opinion shall be filed contemporaneously herewith.