Opinion
CV-01-1225-ST
May 6, 2002
OPINION AND ORDER
INTRODUCTION
On November 27, 2001, Magistrate Judge Stewart issued Findings and Recommendation ("FR") (docket #16), recommending that the IRS' Motion to Dismiss (docket #7) the First Amended Petition to Quash Third Party Summons (docket #4) be granted due to a lack of subject matter jurisdiction over six of the eight entities summoned and for failure to state a claim upon which relief can be granted against the remaining two entities summoned.
One of the entities to whom the IRS issued a summons is Greenpoint Mortgage Funding, Inc. ("Greenpoint"), located in Columbus, Georgia. Second Declaration of Revenue Agent Michelle McGeachy ("McGeachy Dec"), Defendant's Ex B, p. 1. Absent any evidence that Greenpoint "resides or is found" in the State of Oregon as required by 26 U.S.C. § 7609(h)(1), Magistrate Judge Stewart concluded that Greenpoint should be dismissed based on lack of subject matter jurisdiction.
On December 17, 2001, petitioner filed objections to the FR arguing that the court has subject matter jurisdiction with respect to the Greenpoint summons because Greenpoint is registered with the Oregon Secretary of State Corporation Division and has an office in Lake Oswego, Oregon. However, petitioner provided no evidence that Greenpoint had an office in Oregon and did not identify an address or telephone number for Greenpoint in Oregon. On March 21, 2002, I adopted the FR in its entirety (docket #24).
Also on March 21, 2002, while preparing a response to a new action filed by petitioner seeking to quash a new set of IRS summons, counsel for the United States learned for the first time that Greenpoint actually does have a branch office in Lake Oswego, Oregon, and a local telephone number. McGeachy Dec, ¶ 13; Declaration of Jeremy N. Hendon in Support of the United States' Motion to Alter or Amend the Court's March 21, 2002 Order and Motion for Summary Judgment as to Greenpoint Summons ("Hendon Dec"), ¶ 3. Counsel called the branch office and verified that it is the same company as noted on the face of the summons. Id at ¶ 4.
These summons seek records regarding petitioner from third-party recordkeepers, including Greenpoint, for a subsequent tax year. Carl Duane Oldham v. United States, United States District Court for the District of Oregon, Civil No. 01-1717-HU.
On April 5, 2002, the IRS filed United States' Motion to Alter or Amend the Court's March 21, 2002 Order and Motion for Summary Judgment as to Greenpoint Summons (docket #25). Petitioner has filed no opposition to this motion. For the reasons that follow, that motion is granted.
DISCUSSION
The first issue is whether this court has subject matter jurisdiction over Greenpoint. Based on the new evidence submitted by the IRS, Greenpoint "resides or is found" in the State of Oregon as required by 26 U.S.C. § 7609(h)(1). Therefore, Greenpoint is subject to jurisdiction in Oregon. Because this court should not have dismissed Greenpoint due to a lack of subject matter jurisdiction, the March 21, 2002 Order is altered or amended to reflect this change.
Nevertheless, the IRS is still entitled to dismissal of the Amended Petition to Quash Third Party Summons as to Greenpoint. As explained in the prior FR with respect to the other two entities with branch offices in Oregon (Fidelity Investments and Countrywide Home Loans), the IRS clearly made a prima facie showing of its entitlement to have the summons enforced and petitioner failed to overcome that showing. The same analysis applies equally to Greenpoint. Thus, the IRS's Motion to Dismiss is granted for failure to state a claim as to petitioner's allegations relating to Greenpoint.
ORDER
For the reasons stated above, the United States' Motion to Alter or Amend the Court's March 21, 2002 Order and Motion for Summary Judgment as to Greenpoint Summons (docket #25) is GRANTED. Accordingly, with respect to the allegations in the First Amended Petition to Quash Third Party Summons related to Greenpoint Mortgage Funding, Inc., the IRS's Motion to Dismiss (docket #7) is denied for lack of jurisdiction, but granted for failure to state a claim.