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Larson v. U.S.

United States District Court, D. Nevada
May 22, 2002
Case No. CV-S-02-0094-KJD (RJJ) (D. Nev. May. 22, 2002)

Opinion

Case No. CV-S-02-0094-KJD (RJJ)

May 22, 2002


ORDER


Presently, the Court has before it the Government's Motion to Dismiss (#3). The Government filed its motion on March 13, 2002. More than fifteen days have passed and Plaintiff has yet to file a response. Pursuant to the Local Rules, a party's failure to respond constitutes consent to the motion. See LR 7-2(d). Accordingly, dismissal is appropriate.

Moreover, after having read and considered the motion, the Courts finds it meritorious. Substantively, the Government seeks the dismissal of Plaintiffs complaint for untimeliness. Plaintiffs federal income tax return filed for the 1998 income tax year had zeros on all the lines of the return which reflected income or tax due to the Government. However, attached to the return was a Form W-2 reflecting wages, tips, or other compensation for that year in the amount of $50,863.22. Also attached were statements in which Plaintiff set forth his argument as to why the federal income tax does not apply to him. At Plaintiffs request, a collection due process hearing was held regarding the frivolous return penalty assessed for his 1998 federal income tax return. On December 18, 2001, Plaintiff was sent a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330.

Before a levy may be made on the property of any taxpayer, such taxpayer must be notified of his right to request a pre-levy hearing. See 26 U.S.C. § 6330(a). Following the hearing the taxpayer is sent a Notice of Determination that summarizes the matters raised during the hearing and responds to any offers or objections made by the taxpayer. The taxpayer may file an appeal with the Tax Court or, if the Tax Court lacks jurisdiction over the underlying tax liability, with the appropriate federal district court. See id. § 6330(d)(1). Regardless of where the appeal must be taken, the taxpayer has thirty days from the date of the determination to file an appeal. See id.

In the instant case, the IRS issued the Notice of Determination on December 18, 2001. Thus, Plaintiff had until January 17, 2002 to file an appeal. Although signed on January 7, 2002, Plaintiffs complaint was not filed until January 22, 2002. Without addressing whether this Court even has subject matter jurisdiction, the Court finds that the complaint is untimely, thereby warranting dismissal.

Accordingly, IT IS HEREBY ORDERED that the Government's Motion to Dismiss (#3) is GRANTED.


Summaries of

Larson v. U.S.

United States District Court, D. Nevada
May 22, 2002
Case No. CV-S-02-0094-KJD (RJJ) (D. Nev. May. 22, 2002)
Case details for

Larson v. U.S.

Case Details

Full title:LESLIE K. LARSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant

Court:United States District Court, D. Nevada

Date published: May 22, 2002

Citations

Case No. CV-S-02-0094-KJD (RJJ) (D. Nev. May. 22, 2002)