Opinion
CV-S-01-1004-KJD (PAL)
February 15, 2002
ORDER
This matter is before the Court on Defendant's Motion to Dismiss (#4). The Court has also considered Plaintiffs Objection (#6) and the Declaration of Traci L. Patterson (#5).
FACTUAL HISTORY
On July 6, 2000, the Internal Revenue Service (IRS) mailed Plaintiff a Notice of Intent to Levy and Right to Hearing regarding a 1996 federal income tax liability. Plaintiff received that notice on July 8, 2000. On October 10, 2000, the IRS received Plaintiff's "Request for Collection Due Process Hearing" mailed on October 5, 2000. Although Plaintiffs request for hearing was untimely, he was given an "equivalent hearing" at the IRS Las Vegas Appeal Office on May 10, 2001. The IRS issued its decision letter on July 24, 2001, denying relief and finding that Plaintiff did not file suit in tax court. On August 24, 2001, Plaintiff filed the instant action requesting the Court to invalidate the IRS decision letter. Defendant subsequently filed this motion to dismiss alleging lack of subject matter jurisdiction.
ANALYSIS
Plaintiff received the Notice of Intent to Levy on July 8, 2000. On October 5, 2000, Plaintiff requested a Collection Due Process hearing. 26 U.S.C. § 6330(a)(2) and (a)(3)(B) requires that the taxpayer make such request within 30 days of receipt of the notice of right to hearing. Plaintiff does not dispute that he received the notice on July 8, 2000 or that he did not mail his request for hearing until October 5, 2000. He does make several arguments going to the merits of the case. For example, he points out that the notice was not sent by the "Secretary" but by Scott Kilpatrick, Chief, Automated Collection Branch. Plaintiff contends that Scott Kilpatrick does not have the required delegation of authority from the Secretary of the Treasury.
This Court cannot consider the merits of Plaintiffs appeal for the reasons that follow. First, the U.S. District Court lacks jurisdiction over Plaintiffs claims because his request for hearing was made almost 60 days late. Second, there is no right to judicial review of decisions made by an appeals officer at an equivalent hearing. See Moorhous v. Commissioner, 116 T.C. 263 (2001), Kennedy v. Commissioner, 116 T.C. 255 (2001). Finally, even ignoring the untimeliness of Plaintiffs claim and the fact that there is no appeal from an equivalent hearing, any jurisdiction over this matter would be in the tax court. Although Plaintiff alleges that a tax court is not a court of law and is barred from ruling on matters of law, he provides no authority for those statements. To the contrary of Plaintiffs argument, 26 U.S.C. § 6330(d)(1) provides that the right to judicial review is in the tax court, unless that court does not have jurisdiction.
Federal Courts are courts of limited jurisdiction. They can only adjudicate those cases which the Constitution and Congress authorize them to adjudicate. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994). It is well established that the tax court is a court of limited jurisdiction and that it may exercise jurisdiction to the extent authorized by Congress. See 26 U.S.C. § 7442; Commissioner v. McCoy, 484 U.S. 3, 7 (1987). Pursuant to 26 U.S.C. § 6213(a), the tax court has jurisdiction to redetermine deficiencies assessed by the Commissioner. Pursuant to 28 U.S.C. § 1340, a federal district court has jurisdiction over taxpayer actions for a refund of taxes paid in full, but not for assessed but unpaid taxes. See Flora v. United States, 362 U.S. 145 (1960); Geurkink Farms, Inc. v. United States, 452 F.2d 643, (7th Cir. 1971). A taxpayer may challenge a tax liability before paying the deficiency by filing a timely petition with the tax court. See Scar v. Commissioner, 814 F.2d 1363, 1366 (9th Cir. 1987). A tax court is a court of law notwithstanding Plaintiffs' unsupported statement to the contrary. See Freytag v. Commissioner, 501 U.S. 868 (1991). The burden of establishing jurisdiction over civil actions rests upon the party asserting it. Kokkonen, 377.
CONCLUSION
Here, Plaintiff failed to file a timely petition. His request deals with taxes and penalties assessed but not paid. The Court cannot consider his challenges to the authority of the individual issuing the notice of intent to levy, the early termination of the equivalent hearing, denial of representation at the equivalent hearing, or whether there is an underlying income tax liability, because this Court does not have jurisdiction. The Court cannot address the merits of any dispute unless it is first established that there is subject-matter jurisdiction. Plaintiff has failed to meet his burden to establish that the Court has subject-matter jurisdiction.
The District Court lacking jurisdiction, Defendant's Motion to Dismiss (#4) is granted and Plaintiffs Complaint is dismissed with prejudice.