Opinion
Case No. 1:02-CV-0147
March 5, 2002
MEMORANDUM OF OPINION AND ORDER
On January 24, 2002, plaintiff pro se Kevin C. Hart filed this action against the United States. Mr. Hart is seeking to set aside a Notice of Determination issued by the Internal Revenue Service (IRS) Appeals Office. On February 25, 2002, he filed a "Motion That The District Court Declare Invalid the IRS `Determination' at Issue to 26 U.S.C. § 6330." For the reasons stated below, this action is dismissed without prejudice.
In his complaint, Mr. Hart alleges that on April 23, 2001 and September 5, 2001 he requested a Collection Due Process hearing (CDP) as set forth in 26 U.S.C. § 6330(b). Section 6330 provides, in relevant part, that the IRS may not place a levy on any property of any person unless the Secretary of Treasury ("the Secretary") notifies the person in writing that he is entitled to a hearing before the levy is issued. 26 U.S.C. § 6330(a)(1). The statute also mandates that the hearing be held before the IRS Office of Appeals.
A hearing was held before an IRS Appeals Officer on December 12, 2001. It appears plaintiff requested the hearing to determine whether the United States "could legally seize Plaintiff's property pursuant to Internal Revenue Code Section 6331, in connection with two $500 frivolous `penalty' [sic] with interest which had been imposed by employees of the United States." (Compl. at 1-2.) He also sought to challenge "the `existence of the underlying liability' of the tax that generated the `frivolous penalty' . . . since Plaintiff did not receive any Deficiency Notice with respect to such a `tax liability.'" (Compl. at 4.) Nineteen days after the hearing commenced, the Appeals Team Manager issued a Notice of Determination wherein it was concluded "that no relief is to be granted and that the proposed levy action is sustained." (Pl.'s Ex. A. at 2.)
Mr. Hart mounts several challenges to the manner in which the CD? hearing was conducted. He claims, inter alia, that the hearing was not conducted in accordance with 26 U.S.C. § 6330 or Treasury Regulation 301.6330-1. He alleges that IRS Chief of the Automated Collection Branch, John Gallagher. was never authorized by the Secretary to send him a Final Notice of Intent to Levy and Your Right to a Hearing. Further, he maintains that the CDP appeals officer never obtained verification from the Secretary that "the requirements of any applicable law or administrative procedure have been met." (Compl. at 2.) Mr. Hart maintains that the Appeals Officer raised conditions before the hearing which can be "found nowhere in the law (section 6320 6330) or in implementing regulations." (Compl. at 5.) Plaintiff argues that because the statute provides that "any relevant issue" [§ 6330(c)(2)(A)] may be raised at the CD? hearing he was entitled to "raise `any issue he deemed relevant', . . . and [i]f the appeals officer(s) were to make a determination without conducting the CDP hearing as required by law, that [sic] `any such determination [. . .] would be `illegal and void'." (Compl. at 6.)
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), a "district court may, at anytime, sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil procedure." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999); see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974). When a case laying venue in the wrong division or district is filed in a district court, the court is compelled to dismiss it. 28 U.S.C. § 1406.
Any person seeking judicial review of an IRS Appeals Office determination has 30 days within which he may appeal to "the Tax Court (and the Tax Court shall have jurisdiction 10 hear such matter); or (B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States." 26 U.S.C. § 6330(d)(1). The Tax Court has jurisdiction over many types of claims related to the Tax Code, Title 26. For certain types of claims the Tax Court's jurisdiction is exclusive, thus depriving the district court of jurisdiction aver those claims. With regard to Mr. Hart's claim that the tax penalties assessed by the IRS based on his non-payment of federal taxes are frivolous, the IRS has determined that he is liable For federal taxes. This is a type of tax liability over which the Tax Court has jurisdiction. See 26 U.S.C. § 7441-42;see also 26 U.S.C. § 1, 61. 63 (imposing income tax liability, and defining gross income and taxable income). Thus, it is the Tax Court which has exclusive jurisdiction over petitions for the redetermination of tax deficiencies, the means of challenging the merits of a tax deficiency determination. 26 U.S.C. § 6213. With respect to Mr. Hart's claim challenging the levy on his property, it is the Tax Court which has exclusive jurisdiction over appeals of levy determinations since it has exclusive jurisdiction over the underlying tax liability that the IRS has alleged. 26 U.S.C. § 6330(d)(1)(A); Lundsford v. Comm'r, 117 T.C. 183 (2001) (Tax Court has jurisdiction over petitions arising under section 6330(d)(1)(A)).
Plaintiff provided a copy, as Exhibit B, of the IRS's Final Notice-Notice of intent to Levy, dated April 7, 2001, wherein it states, "You have not paid your federal tax. . . . To prevent enforcement collection action, please send us full payment today for the amount you owe shown on the back of this letter." (Pl. Ex. B.)
To the extent Mr. Hart is seeking to insert a procedural due process claim, this court nonetheless lacks jurisdiction. District courts have no jurisdiction over civil claims challenging taxes unless litigants first pay the assessed tax and then raise these claims in a refund suit. See 26 U.S.C. § 7421(a) (prohibiting suits to restrain assessment or collection of taxes); see also Flora v. United States, 362 U.S. 145 (1960) (holding 28 U.S.C. § 1346(a), which gives district courts jurisdiction over civil suits challenging tax assessments, requires full payment of assessed tax prior to suit).
Based on the foregoing, this court lacks subject matter jurisdiction over Mr. Hart's complaint. Since this is not the proper venue for the case, this action is dismissed without prejudice pursuant to 28 U.S.C. § 1406. Plaintiff shall have 30 days from the date of this decision to appeal the IRS Appeals Office determination with the Tax Court. 26 U.S.C. § 6330(d)(1)(B).