Opinion
Civil Action No. 03-4787(DMC)
January 27, 2004
OPINION
This matter comes before the Court on Respondents' Mark W. Everson, Commissioner of Internal Revenue Service, and Joan R. Carter, Appeals Officer, Internal Revenue Service (the "United States"), motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, Respondents' motion is granted.
BACKGROUND
Petitioner Dennis M. Carmichael is seeking a writ of mandamus ordering respondents to provide him with a Collection Due Process ("CDP") hearing with witnesses and the opportunity to record the hearing.
On September 15, 2000, the Internal Revenue Service ("IRS") sent Carmichael a "Notice of Intent to Levy and Notice of Your Right to a Hearing" with respect to his 1985 and 1986 income tax liabilities. Carmichael was sent a second notice of intent to levy on May 20, 2002. Carmichael responded to this second notice, requesting a CDP hearing on June 17, 2002. The IRS did not permit him such a hearing.
ANALYSIS
As a preliminary matter, it should be noted that a suit against an IRS employee in his or her official capacity is essentially a suit against the United States. Petitioner's allegations indicate that all claims against Mr. Everson and Ms. Carter arise out of their actions in their official capacities as IRS agents. Moreover, the relief sought by Petitioner is solely against the United States. Accordingly, Petitioner's claims against Everson and Carter are properly construed as being brought against the United States. See e.g., Dugan v. Rank, 372 U.S. 609 (1962).
A writ of mandamus is an extraordinary remedy that may only be invoked in exceptional circumstances. Kerr v. United States District Court for the N. District of California, 426 U.S. 394, 402 (1976). 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." Donovan v. United States, 580 F.2d 1203, 1208 (3rd Cir. 1978).
In order for the IRS to collect tax liabilities by levying on a taxpayer's assets, it must first issue a notice to the taxpayer that it intends to levy on the taxpayer's property. 26 U.S.C. § 6331(d). Pursuant to 26 U.S.C. § 6330(a), the IRS must provide a notice of intent to levy as well as a right to a hearing before any levy is made. The taxpayer, in turn, has the right to request a CDP hearing within thirty (30) days after the issuance of such notice from the IRS. 26 U.S.C. § 6330(a)(2) and (a)(3)(B). A taxpayer "must submit a written request for a CDP hearing with respect to a CDP notice issued under Section 6330 within the 30-day period commencing the day after the date of the CDP notice." Treasury Reg. § 301.6330-lT(c)(2), A-C3. Should a taxpayer fail to request a hearing within thirty days, their right to a hearing prior to the IRS levy is foregone. Treas. Reg. § 301.6330-1(c)(2), A-C7; see also, Johnson v. Commissioner, 200-2 USTC ¶ 50, 591 (D.Or.). When a timely written request has not been filed, the taxpayer has the right to an "equivalent hearing" under Treasury Reg. § 301.6330-1t(i), rather than the statutory CDP hearing. Treasury Reg. § 301.6330-1T(C)(2), A-C7.
Here, Petitioner has failed to request a CDP hearing in a timely manner. Indeed, it appears that he did not request such a hearing at all until after having received his second notice of intent to levy. Although Petitioner responded to the second notice within thirty days, the Treasury Regulations are clear that where a taxpayer does not request a hearing within thirty days after issuance of the first notice, petitioner loses the right to such a hearing. Treasury Reg. § 301.6330-1(b)(2), Q-B2, A-B2.
Accordingly, Petitioner Carmichael has failed to timely request a CDP hearing. That he responded to his second notice in a timely matter is of no consequence to the issue of whether or not he timely responded to first notice of intent to levy issued by the IRS. Petitioner has lost the right to a CDP hearing upon the lapse of thirty days after having received the first notice.