Opinion
CAUSE NO. 3:03-CV-0419 RM
July 2, 2003
MEMORANDUM AND ORDER
As a result of Gary Frank's disagreements with the IRS, he owes it $2,883.85 cents in taxes for 1997 and $1,500.00 for filing frivolous returns in 1995, 1996, 1997, or so it was determined after the collection due process (CDP) hearing anyway. Mr. Frank sought to challenge this ruling, so he filed an action in this court. The government moved to dismiss for, among other reasons, lack of subject matter jurisdiction and failure to state a claim. Mr. Frank responded that he, too, thinks dismissal appropriate, and the court grants the government's motion.
The government's initial objection is well-taken; this court lacks subject matter jurisdiction over the part of Mr. Frank's claim relating to the income tax assessment. Subject matter jurisdiction requires both constitutional and statutory authorization. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 951 (7th Cir. 2003). The Tax Code provides that an appeal from a CDP proceeding must go to the Tax Court so long as the Tax Court has jurisdiction over the underlying liability. 26 U.S.C. § 6330 (d); True v. Commissioner, 108 F. Supp.2d 1361, 1364 (M.D. Fla. 2000). The Tax Court has jurisdiction over income taxes, 26 U.S.C. § 6213; Danner v. United States, 208 F. Supp.2d 1166, 1170 (E.D. Wash. 2002), so this court does not have statutory, or subject matter, jurisdiction to review the IRS's determination regarding the assessment for 1997's income tax.
This court has jurisdiction to review the penalties for filing frivolous returns. Danner v. U.S., 208 F. Supp.2d at 1170. Mr. Frank's appeal contends that the IRS's determination is invalid because the IRS failed to provide sufficient documentation of the delegation of authority from the Secretary of the Treasury to IRS employees, the name of the employee imposing the penalties, and the assessment, refused to permit an audio recording of the CDP hearing, requested financial records to which it had no right, and provided insufficient notice of deficiency regarding the frivolous return penalties. For the reasons stated in the government's brief, the court finds these arguments unpersuasive.
The court, therefore, dismisses Mr. Frank's action [Doc. No. 1] in total. Mr. Frank has thirty days after this determination to file an appeal in the Tax Court regarding his income tax liability. 26 U.S.C. § 6330 (d)(1).
SO ORDERED.