Opinion
03 C 2876
September 26, 2003
MOTION
On April 29, 2003, petitioner Ryan K. Jones ("Jones") filed a "Motion to Quash Summons and Motion for Temporary and Permanent Restraining Order and Injunction" seeking to quash an Internal Revenue Service ("IRS") summons and enjoin the IRS from issuing further summonses against him. Defendant United States, on behalf of itself and defendants IRS, Revenue Agent Jonathon Lynch, and Revenue Agent Ronald E. Burchett, on August 12, 2003, moved to dismiss Jones' motion and for summary enforcement of the IRS summons. For the reasons stated below, petitioner Jones' motion to quash is dismissed for failure to establish proper service thereof. Defendants' motion to dismiss is moot.
The United States argues, inter alia, that Jones' motion should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficiency of service of process. Pursuant to 26 U.S.C. § 7609(b)(2)(B), Jones was required to mail by registered or certified mail a copy of his petition (which he titles a "motion") "to the person summoned and to such office as the Secretary may direct in the notice referred to in subsection (a)(1)." Local Rule 5.5 of the Northern District of Illinois requires Jones to file a certificate of service indicating the date, manner, and party to whom the petition was served. By Minute Order dated May 9, 2003, this court struck Jones' May 9, 2003, notice of motion for failure to comply with Local Rules 5.3(b) and 5.5. (Dkt. No. 2.) Additionally, this court advised Jones of the applicable Federal Rules of Civil Procedure and Local Rules. (Id.) Finally, this court "directed [Jones] to file a certificate of service of his motion to quash with the Clerk of Court forthwith." (Id.) After closer review of Jones' motion, this court finds that an affidavit of service was attached. However, as of September 25, 2003, more than four months after this court's May 9, 2003, order, Jones has not filed any additional documents with the court.
This court cannot determine from Jones' affidavit of service whether the IRS office designated in the notice provided under 26 U.S.C. § 7609(a)(1) was served properly pursuant to § 7609(b)(2)(B). In fact, because the § 7609(a)(1) notice to Jones was not attached by Jones or the United States, this court has no way of knowing whether the government complied with § 7609(a)(1), which requires the IRS to provide Jones an explanation of his rights under § 7609(b)(2) to bring a proceeding to quash the summons, at all. IRS Agent Burchett, in an unsigned declaration, states that "[a]ll administrative steps required by the Internal Revenue Code (26 U.S.C.) for issuance and service of the summonses have been followed." (Defs.' Mot., Burchett Decl. ¶ 13.) Because Jones did not respond to the United States' motion, although this court gave him until September 16, 2003, to do so, this court cannot determine whether the United States complied with § 7609 or whether Jones failed to properly serve the designated IRS office.
Although the United States moved to dismiss for insufficiency of service, it addresses Jones' motion under Federal Rule of Civil Procedure 4. It appears, however, that § 7609(b)(2)(B) governs Jones' action, not Rule 4. In any event, this court cannot determine whether all persons required to be served by Jones were actually and properly served. This court has given Jones more than ample opportunity to provide proof of service. First, this court advised Jones of the Rules. Second, more than four months ago, this court ordered Jones to file the requisite certificate of service. Although Jones appears to have filed an affidavit of service with his motion, he had the chance to further clarify the service issues. Third, this court gave Jones until September 16, 2003, to respond to United States' motion to dismiss, in which the government raised the issue of improper service, albeit in the Rule 4 context. Jones could have responded by providing proof of proper service, which was his burden, or failure by the government to comply with § 7609. See Robinson Eng'g Co., Ltd. Pension Plan Trust v. George. 223 F.3d 445, 453 (7th Cir. 2000) ("[T]he burden of showing proper service is on [plaintiff]."). He, however, did not respond at all. Consequently, this court has no choice but to dismiss Jones' motion to quash.
Accordingly, Jones' motion to quash is dismissed for failure to prove proper service thereof.