Opinion
No. 03 C 50070
August 7, 2003.
MEMORANDUM OPINION AND ORDER
Plaintiff Harry Plettner's dealings with the IRS began in June of 1992, when he received a letter from the IRS notifying him of the proposed federal tax assessments against him pursuant to Section 6672 of the Internal Revenue Code ("IRC"). In this letter the IRS explained that as a responsible person of Ambassador Wines, Ltd., who willfully failed to collect, or truthfully account for and pay over income and Federal Insurance Contributions Act (FICA) taxes withheld from the wages of employees for the tax periods up until June 30, 1990, Plettner was liable for the unpaid taxes. In a letter dated July 20, 1992, Plettner protested the assessment and claimed he was not a "responsible person" because he ended his association with Ambassador Wines before the tax problems occurred. The IRS did not believe Plettner's claims, and on March 8, 1993, informed him that a 100% penalty was assessed against him and he would be billed for any amount withheld by Ambassador Wines between January 1, 1990 and July 31, 1990. In July of 1997, Plettner filed a claim for refund and request for abatement, which was also denied. Finally, in November of 2001, the IRS informed Plettner that a federal tax lien would be filed if he did not pay his federal tax bill. Plettner requested a collection due process hearing, stating that he was not responsible for the tax bill because he was not involved with Ambassador Wines during the dates at issue. Plettner was informed that, under IRC § 6330(c)(2), he was not permitted to raise the issue of liability since it had already been addressed and determined at an earlier stage. On January 23, 2003, Plettner received a Notice of Determination, which informed him he had 30 days to file a complaint in District Court for a redetermination. Plettner filed a complaint in this court on February 24, 2003, appealing the decision made by the IRS Appeals Office. The IRS responded with a motion to affirm the determination concerning collection action or, in the alternative, to dismiss Plettner's complaint for lack of jurisdiction.
Section 6330 of the IRC defines the bounds of this court's jurisdiction to review a determination issued by the IRS Appeals division. Jurisdiction is limited to issues properly raised and considered during the collection due process hearing. 26 U.S.C. § 6330(d)(1)(B). See also Maton. v. Commissioner of Internal Revenue, No. 02 C 6609, 2003 U.S. Dist. LEXIS 5928, at *6 (N.D. Ill. April 9, 2003), Konkel v. Commissioner of Internal Revenue, No. 6:99-CV-1026-ORL-31C, 2000 U.S. Dist. LEXIS 20709, at *7-8 (M.D. Fla. Nov. 6, 2000). IRC § 6330(c)(2) states "In general. The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy including —
(B) Underlying liability. The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." (Emphasis added).
Plettner took advantage of his opportunity to dispute his liability, as evidenced by Form 3194, which Plettner attached to his complaint. Form 3194 plainly states "[y]ou raised the issue of the underlying liability. However, pursuant to IRC 6330(c)(2), you previously received a prior opportunity to appeal." Plettner does not dispute these conclusions in his complaint. The IRS determined that despite his claims to the contrary, Plettner was a "person of responsibility." Consequently, the IRS properly refused to address the issue of liability at the collection due process hearing. Since this court is only entitled to review those issues that were properly examined at the due process collection hearing and Plettner's complaint addresses the issue of liability, which the IRS refused to reexamine, there is no jurisdiction.
For the reasons stated above, the IRS's motion to dismiss is granted. This case is dismissed in its entirety with prejudice.