Opinion
CASE NO. 03-80155-CIV-HURLEY/LYNCH
July 16, 2003
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION., AND DISMISSING PLAINTIFFS COMPLAINT
THIS CAUSE comes before the court upon the defendants motions pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss plaintiffs complaint for lack of subject-matter jurisdiction, filed May 12, 2003.
Plaintiff John T. Helvie, prose, is a resident of Delray Beach, Florida. The Internal Revenue Service, by a series of notices sent in 1994, 1995, 1997, and 1998, pursuant to 26 U.S.C. § 6303, informed Mr. Helvie that he owed a tax liability for the calendar years 1991, 1992, 1993, 1994, and 1996. Mr. Helvie neglected or refused to pay the amount demanded, On March 18, 2002, pursuant to 26 U.S.C. § 633O(a)(1), the IRS sent Mr. Helvie a letter indicating an intent to levy and stating that he had a right to a collection due process hearing. By letter postmarked April 17, 2002, Mr. Helvie wrote that he desired to have a hearing with the IRS Office of Appeals, The IRS promptly suspended its proceedings to impose a levy.
Mr. Helvie contended that under 26 U.S.C. § 7521 and the agency's internal guidelines, he was permitted, after providing notice, to arrange for an audio or stenographic recording of the collection due process hearing. He also requested that Phillip M. Ballard, a Texas resident and unabashed tax protestor, be permitted to represent him at the hearing. On September 23, 2002, Appeals Officer Frank A. Andreacchi mailed a letter to Mr. Helvie scheduling a face-to-face hearing for November 6, 2002. In the letter, Officer Andreacchi denied Mr. Helvie's request to have the hearing recorded, citing an internal memorandum stating that audio and stenographic recordings would no longer be permitted in appeals cases. The officer also denied Mr. Helvie's request to have Mr. Ballard represent him. on the ground that unenrolled return preparers are not allowed to represent taxpayers before the appeals division.
Mr. Ballard wrote to Officer Andreacchi on October 30, 2002, and requested that the officer permit recording of the hearing and allow him to represent Mr. Helvie at the hearing. Mr. Helvie did not attend the hearing scheduled for Nov. 6. By letter dated November 6, 2002, Officer Andreacchi scheduled another hearing for December 4, 2002, and again denied Mr. Helvie's requests. The officer wrote that if Mr. Helvie failed to appear at the hearing in December, the IRS would issue a determination letter and the case would be closed.
On November 25, 2002, Mr. Helvie and Mr. Ballard contacted Terri Beach, Team Manager, General Appeals Programs for IRS in Plantation, Fla., requesting that Mr. Ballard be permitted to represent Mr. Helvie because Mr. Ballard was supposedly Mr. Helvie's full-time employee. Mr. Helvie did not attend the hearing scheduled for Dec. 4. On December 9, 2002, LRS received Mr. Ballard's letters wherein he again requested that the hearing be recorded and that Mr. Ballard be allowed to represent the taxpayer, and submitted a power of attorney. Mr. Ballard stated that Mr. Helvie would not attend a hearing until the IRS acceded to his requests.
On December 11, 2002, Officer Andreacchi again denied Mr. Ballard's two requests, and scheduled another hearing for December 23, 2002, Mr. Helvie and Mr. Ballard called the IRS offices and repeated their requests, which Officer Andreacchi and Manager Beach again denied. Mr. Helvie did not attend the hearing set for Dec. 23. The IRS, by letter dated January 30, 2003, issued a notice of determination sustaining the assessment of Mr. Helvie's underlying tax liability for the tax years 1991, 1992, 1993, 1994, and 1996. The IRS further rejected Mr. Helvie's arguments that the appeals division was required to allow him to record the collection due process hearing, and reaffirmed us decision prohibiting Mr. Ballard from representing Mr. Helvie at the hearing.
On March 3, 2003, Mr. Helvie, through Mr. Ballard as a so-called "authorized tax representative" or "attorney-in-fact," filed suit in this court, seeking to have this court, pursuant to 28 U.S.C. § 1361, issue an order compelling certain employees of IRS to (1) permit him to arrange for stenographic recording of the collection due process hearing, (2) have Mr. Ballard represent him at such a hearing, and (3) produce certified copies of documents he requested. Mr. Helvie also seeks, pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 06, and 26 U.S.C. § 6330(d)(1)(B), to challenge the IRS's determination of his tax liability.
Section 1361 provides the district courts with jurisdiction to compel an officer of the United States to perform a duty owed to the plaintiff. Mandamus is proper if (1) the plaintiff can show a clear right to the relief sought; (2) the defendants have a clear, non-discretionary duly to act; and (3) no other remedy is available.See Nyaga v. Ashcroft, 323 F.3d 906, 911 (11th Cir. 2003) (citing Heckler v. Ringer, 466 U.S. 602, 617 (1984)). The statute does not require the district court to exercise jurisdiction, but simply leaves the determination whether to issue mandamus to the discretion of the court. See National Wildlife Federation v. United States, 626 F.2d 917, 923 (D.C. Cir. 1980).
Here, plaintiff cannot show that the defendants owed him a clear and unmistakable duty to perform a ministerial act. Rather, the IRS officers appear to have based their decisions on the IRS's interpretations of 20 U.S.C. § 7521 and us own internal guidelines. Moreover, plaintiff has a statutory right to appeal the procedures employed in the hearing before the appeals division. Accordingly, mandamus is not proper in this case. Additionally, since the relief plaintiff seeks is for this court to compel the government to perform certain acts, and not a suit against the IRS officers in their individual capacities, it is construed as a suit against the sovereign, the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("[A] suit against IRS employees in their official capacity is essentially a suit against the United States."); People of Calif., ex rel. Ervin v. District Director, 170 F. Supp.2d 1040, 1045-46 (E.D. Calif. 2001).
Second, the Administrative Procedure Act does not confer subject-matter jurisdiction on this court. The Former Fifth Circuit stated that the APA does not provide an independent source of jurisdiction, and in any case "only applies to a final agency decision where there is no other adequate remedy." Einhorn v. DeWitt, 618 F.2d 347, 350 (5th Cir. 1980) (citing Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221 (5th Cir. 1976)). See also 5 U.S.C. § 702 (stating that APA provision allowing judicial review of agency decisions does not "affect other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground"). As such, the APA does not independently provide this court with jurisdiction to review the actions of the IRS officers or the agency's determination on Mr. Helvie's tax liability. Nor does the APA constitute a waiver of the government's sovereign immunity. See Humphreys v. United States, 62 F.3d 667, 672 (5th Cir. 1995); Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990).
Third, this court lacks subject-matter jurisdiction over plaintiffs claims. Under 26 U.S.C. § 5 6330(d)(1), a person who receives an adverse determination from the IRS's Office of Appeals may, within 30 days, file an appeal of the determination to the United States Tax Court in Washington, D.C., or to a federal district court if the Tax Court does not have jurisdiction of the underlying tax liability, In this case, the appeals division stated that Mr. Helvie was permitted, in the hearing, to challenge the existence or the amount of the underlying tax liability for certain years. As such, the Tax Court clearly has jurisdiction over plaintiffs claims because plaintiff seeks judicial review of the IRS's assessment of his income tax liability. See 26 U.S.C. § 633O(d)(1) 7442; McCune v. Commissioner, 115T.C. 114 (2000): Danner v. United States, 208 F. Supp.2d 1166, 1170(E.D. Wash. 2002); True v. Commissioner, 108 F. Supp.2d 1361, 1364 (M.D. Fla. 2000). Moreover, the Tax Court's jurisdiction extends to both the substantive rulings of the appeals division on the underlying tax liability and the procedural issues that arise in collection due process hearings.See Silvery. Smith, No. 01-CV-6193L, 2002 WL 31367926, at *2 (W.D. N.Y. Sept. 5, 2002). Therefore, this court concludes that it lacks subject-matter jurisdiction over plaintiffs claims alleging procedural irregularities in the collection due process hearing.
Plaintiffs response, filed June 9, 2003, contained in the caption, "Motion for Amendment to Original Complaint." However, plaintiff did not include any substantive argument as to why any amendment should be allowed. In any case, the court concludes that further amendment would be futile, and the motion will be denied.
For the forgoing reasons, it is hereby ORDERED and ADJUDGED as follows:
1. Defendants' motion to dismiss this case [DE # 3] is GRANTED.
2. Plaintiffs motion to amend the complaint [DE # 7] is DENIED.
3. Plaintiffs complaint is DISMISSED. Plaintiff is advised that under the applicable statutes, he has 30 days from entry of an order of dismissal to file an appeal of the Office of Appeals' decision to the correct court, namely, the United States Tax Court, 400 Second Street, N.W., Washington, D.C. 20217. Failure to timely file an appeal with the Tax Court will result in dismissal.
4. The Clerk of the Court shall enter this case as CLOSED.