Opinion
No. 03-2882 D/P.
January 14, 2005
ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION
Before the Court is the motion of Plaintiff Barry Pollack ("Plaintiff") for reconsideration of the Court's order granting in part and denying in part Defendant's motion for summary judgment. Plaintiff brought this action pursuant to 26 U.S.C. § 6330(d) for judicial review of a Notice of Determination by the Internal Revenue Service ("IRS"). Plaintiff challenged the IRS's assessment against him of a trust fund recovery penalty, the IRS's collection action, and the Federal Tax Lien that the IRS filed against him. The Court granted Defendant's motion for summary judgment as to the issue of Plaintiff's tax liability and denied Defendant's motion for summary judgment as to review of the collection due process hearing.
Plaintiff asserts that the Court should reconsider its decision to grant Defendant's motion for summary judgment with respect to Plaintiff's liability. In support of the motion for reconsideration, Plaintiff argues that the letter mailed to him from the Internal Revenue Service ("IRS") was undelivered but not refused.
A motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) may be made for one of three reasons:
1) An intervening change of controlling law;
2) Evidence not previously available has become available; or
3) It is necessary to correct a clear error of law or prevent manifest injustice.
Fed.R.Civ.P. 59(e); Helton v. ACS Group and JS Cafeterias of Pigeon Forge, Inc., 964 F. Supp 1175 (E.D. Tenn. 1997). Rule 59 is not intended to be used to "relitigate issues previously considered" or to "submit evidence which in the exercise of reasonable diligence, could have been submitted before." Id. at 1182. Thus, there are limited circumstances in which a court may grant a motion to alter or amend a judgment.
In its order granting in part and denying in part Defendant's motion for summary judgment ("Order"), the Court found that there was no genuine issue of material fact remaining as to liability because Plaintiff had the opportunity to dispute his underlying tax liability before the assessment. The Court's holding was based on Plaintiff's refusal of the letter sent to him by the IRS. However, it appears that the return notice from the United States Postal Service ("USPS") does not appear to specify that it was returned because it was refused. In appears that, upon further examination, the box labeled "unclaimed" was checked. Although the front of the envelope has the correct address, the certified mail form attached to the back of the envelope contained the wrong address.
This new information was necessary in order to correct a clear error of law and to prevent manifest injustice. The Court relied upon a presumption of official regularity and delivery by the USPS. Sego v. Comm'r of Internal Revenue, 114 T.C. 604. This was incorrect because it is not clear whether or not the correct address was on the certified mail ticket on the back of the envelope. Furthermore, it would appear that the mail was "unclaimed," rather than "refused." Because of this information raised by Plaintiff, upon reconsideration, the Court finds that a genuine issue of material fact exists as to the question of liability. Accordingly, Plaintiff's motion for reconsideration is GRANTED.
IT IS SO ORDERED.