Opinion
Civil Action No. 04-CV-04942.
May 24, 2006
ORDER
NOW, this 24th day of May, 2006, upon consideration of the United States' Motion to Dismiss, or, in the Alternative, for Summary Judgment, which motion was filed December 20, 2004, upon consideration of Plaintiff's Objection to Defendant United States' Motion to Dismiss, or in the alternative, for Summary Judgment, which opposition was filed April 1, 2005, IT IS ORDERED that defendant's motion to dismiss is denied.
By Order of the undersigned dated February 1, 2005 we granted defendant's motion to dismiss or for summary judgment as unopposed for plaintiff's failure to respond. By separate Order dated March 12, 2005 we granted plaintiff's motion for an enlargement of time to respond to defendant's motion to dismiss and vacated our previous February 1, 2005 Order and reinstated this case. We now address the merits of defendant's motion to dismiss, or in the alternative, motion for summary judgment.
A Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). In determining the sufficiency of the complaint the court must accept all plaintiff's well-pled factual allegations as true and draw all reasonable inferences therefrom in favor of plaintiff. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.Conley, 355 U.S. at 47, 78 S.Ct. at 103, 2 L.Ed.2d at 85. (Internal footnote omitted.) "Thus, a court should not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Graves, 117 F.3d at 726 citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.
In his Complaint filed October 21, 2004, plaintiff Roger E. Gerhart seeks judicial review of the September 21, 2004 determination of Internal Revenue Service Appeals Officer Anthony R. Santaro pursuant to 26 U.S.C. § 6330(d).
Taking all plaintiff's well-pled facts as true as we are required to do pursuant to the standard of review the pertinent facts as as follows. In 2001 plaintiff was the responsible officer of Machine Maintenance Company, located at 15 Main Street, Port Carbon, Pennsylvania. Furthermore, on April 17, 2001 defendant United States of America, Department of Treasury, Internal Revenue Service assessed a trust fund recovery penalty against plaintiff in the amount of $244,630.86 in tax and an additional $2,586.95 in interest and $29.50 in fees for liabilities attributable to Machine Maintenance Company for the quarterly tax periods including the third and fourth quarter of tax 1996, all four quarters of tax year 1997, the first and second quarters of tax year 1998, and the third and fourth quarters of tax year 1999.
On April 21, 2004 plaintiff timely filed a Request for Collection Due Process Hearing before the Internal Revenue Service Appeals office. In advance of the hearing, plaintiff submitted a viable proposed payment plan which appropriately reflected his assets, liabilities and the liquidity of his assets, and a repayment schedule which would fully repay the government for all back taxes, interest and penalties prior to the expiration of the statute of limitations.
Plaintiff was not provided a face-to-face hearing. However, a telephone hearing was conducted by Mr. Santoro with plaintiff's attorney. Plaintiff asserts that the telephone hearing did not include any detailed discussion of plaintiff's requests. On September 21, 2004 Mr. Santoro issued a Notice of Determination Concerning Collection Action Under Section 6320 and/or 6330.
Plaintiff asserts that Mr. Santoro predetermined the outcome of plaintiff's appeal prior to the telephone conference hearing and that Mr. Santoro abused his discretion by not giving plaintiff an in-person hearing and by denying plaintiff's request for a payment plan.
Defendant asserts that plaintiff is not entitled to an in-person hearing and that all of plaintiff's contentions alleging an abuse of discretion are without merit. Regarding its contention that plaintiff is not entitled to an in-person hearing, defendant relies on two district court decisions from other circuits. See Tilley v. United States of America, 270 F.Supp.2d 731 (M.D.N.C. 2003); and Loofbourrow v. Commissioner of Internal Revenue Service, 208 F.Supp.2d 698 (S.D.Tex. 2002). For the following reasons, we agree with defendant in part and deny defendant's motion to dismiss.
Because, we find the Tilley and Loofbourrow cases persuasive we adopt their reasoning and conclude that plaintiff is not entitled an in-person hearing. However, taking all plaintiff's other factual allegations as true, it does not appear beyond a doubt that plaintiff has no claim upon which relief could be granted based upon an abuse of discretion by Mr. Santoro. Graves, 117 F.3d at 726. Thus, we deny defendant's motion to dismiss.
IT IS FURTHER ORDERED that defendant's alternative motion for summary judgment is denied without prejudice to refile it after completion of discovery. IT IS FURTHER ORDERED that defendant United States of America shall have until June 15, 2006 to file an answer to plaintiff's Complaint.
Defendant styles the within motion as both a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and one for summary judgment pursuant to Fed.R.Civ.P. 56(b). We note that defendant has attached eight exhibits to its motion and appears to argue that we should simply accept its version of the events as true and accurate and dismiss this case. We decline to proceed in this manner. Rather, in the interests of fairness, we conclude that plaintiff should be permitted to conduct discovery and establish a record in this matter. A motion for summary judgment, if appropriate, would be better addressed by the court after the conclusion of discovery. Moreover, defendant did not brief why summary judgment would be appropriate at this stage of the proceedings.
Accordingly, we deny defendant's alternative motion for summary judgment without prejudice to refile it after completion of discovery.