Opinion
No. 5:04-CV-266-BR(3).
August 2, 2004
ORDER
On 17 March 2004, pursuant to 26 U.S.C. §§ 6320 and 6330, the Internal Revenue Service ("IRS") Appeals Office sent to plaintiffs, by certified mail, its determinations refusing to withdraw notice of intent to levy and notice of lien. The IRS further informed plaintiffs of the procedural steps they needed to take to file a complaint for redetermination with the appropriate district court. On 19 April 2004, plaintiffs filed the instant complaint for such redetermination On 18 June 2004, the United States filed a motion to dismiss, asserting that this court no longer has jurisdiction to hear plaintiffs' complaint because plaintiffs failed to file it within the required thirty-day period. On 8 July 2004, plaintiffs responded and without explanation claimed that "the complaint was filed within the period allowed by law."
Pursuant to 26 U.S.C. § 6330(a), before a levy may be made on any person's property, the IRS must notify such person of his right to a hearing. A person "may, within 30 days of a determination under this section, appeal such determination — to the Tax Court . . . or if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States." See 26 U.S.C. § 6330(d). A similar right to appeal attaches upon a determination regarding a notice of lien. See 26 U.S.C. § 6320(c). This thirty-day time limitation is jurisdictional, and therefore, if the allotted time passed, the court may not hear the complaint. See Hickey v. Commissioner, 85 T.C.M. (CCH) 1024 (2003); McCune v. Commissioner, 115 T.C. 114 (2000).
In the instant case, the IRS notified plaintiffs of their right to appeal the determinations regarding the notice of intent to levy and notice of lien, (see Decl. Denise Murray at 1-2), and thirty-three days later plaintiffs filed their complaint. Although the statutes require the IRS to notify plaintiffs by certified mail, they do not require that plaintiffs actually receive the notifications. See Smith v. Rossotte, 250 F. Supp. 2d 1266, 1270 (D. Or. 2003). In addition, the three-day time extension afforded for service by mail under Fed.R.Civ.P. 6(e) does not apply to extend jurisdictional periods for commencing actions in United States district courts. See Brohman v. Mason, 587 F. Supp. 62, 63 (W.D.N.Y. 1984). Therefore, plaintiffs' complaint was filed beyond the statutory limit and this court does not have jurisdiction over it. The United States' motion to dismiss plaintiffs' complaint is GRANTED. This case is DISMISSED.