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United States District Court, N.D. Ohio, Western Division
Feb 6, 2003
Case No. 3:02 CV 7294 (N.D. Ohio Feb. 6, 2003)


Case No. 3:02 CV 7294

February 6, 2003



On June 13, 2002, Plaintiff Gregory J. Raft initiated this action against the Commissioner of Internal Revenue ("Defendant") appealing an adverse decision from the Internal Revenue Service ("IRS") following what he characterizes as a collection due process hearing conducted October 3, 2001. This matter is now before the Court on Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6), Plaintiff's response, Defendant's reply and Plaintiff's sur-response thereto. For the reasons stated below, Defendant's motion is well taken.


A. 12(b) Standards

When a Court is inquiring about whether it has subject matter jurisdiction, "no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." United States v. Richie, 15 F.3d 592, 598 (6th Cir. 1994) cert. denied. 513 U.S. 868 (1994) (internal citations omitted). See also RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir. 1986). "In reviewing such a motion, a district court is to probe the facts and assess the validity of its own jurisdiction. In doing so, the Court has a wide discretion to consider affidavits and the documents outside the complaint, and may even conduct a limited evidentiary hearing if necessary." Ohio Hosp. Ass'n v. Shalala, 978 F. Supp. 735, 739 (N.D. Ohio. 1997) (relying on Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). The plaintiff bears the burden of demonstrating that the Court has and may appropriately exercise jurisdiction over the subject matter. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 at 1134. The Court may examine evidence of its power to hear a case, and must make any factual findings to determine whether it has jurisdiction. Kroll v. United States, 58 F.3d 1087, 1090 (6th Cir. 1995); Rogers v. Stratton Inds., Inc., 798 F.2d 913, 915 (6th Cir. 1986); Ohio Hosp. Ass'n v. Shalala, 978 F. Supp. 735, 739 (N.D. Ohio. 1997). A Fed.R.Civ.Pro. 12(b)(1) motion is not converted into a Fed.R.Civ.P. 56 motion for summary judgment when a Court examines evidence for this purpose. Rogers v. Stratton Inds., Inc., 798 F.2d at 915.

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the function of the Court is to test the legal sufficiency of the complaint. In scrutinizing the complaint, the Court is required to accept the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in a light most favorable to the plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that the plaintiff can prove no set of facts that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Westlake, supra, at 858. See generally 2 JAMES W. MOORE, MOORE'S FEDERAL PRACTICE, § 12.34[l] (3d ed. 2002).

With these legal principles in mind, the Court now turns to the parties' contentions.

B. Issue of Notification

The gravamen of Defendant's motion centers on the failure of Plaintiff to timely commence review of the IRS notification, thereby negating this Court's jurisdiction and precluding review of the same under 26 U.S.C. § 6330. The Plaintiff disputes that he received notification to trigger his right to a due process hearing. The Plaintiff acknowledges the notice was placed in his post office box and he was notified of the same, but failed to retrieve the notice due to illness. He then wrote to the IRS indicating the attempt to deliver the letter, noted it had been returned to Defendant, requesting the Defendant mail the item a second time.

The requirements regarding notice and opportunity for a hearing before levy are contained in 26 U.S.C. § 3660 (2) as follows:

Time and method for notice. — The notice required under paragraph (1) shall be —
(A) given in person;

(B) left at the dwelling or usual place of business of such person; or
(C) sent by certified or registered mail, return receipt requested, to such person's last known address;
not less than 30 days before the day of the first levy with respect to the amount of the unpaid tax for the taxable period.

Having reviewed the memoranda, complaint with attachments thereto, there is no dispute the notice of intent to levy was issued by the Defendant on September 20, 2000. (Compl., Ex. 1, (B) and (C). In that notice, Plaintiff was notified of his unpaid tax liability of $11,406.68 for tax years 1993 and 1994. (Compl., Ex. 1(D). The record farther reflects that the notice of intent to levy was refused/unclaimed as of October 8, 2000. Plaintiff's request for a collection due process hearing was submitted on April 2, 2001, some six months after the notice was issued. In correspondence dated July 27, 2001, the appeals officer notified Plaintiff his request for a collection due process hearing was untimely under § 6330, however, he would be afforded an "equivalent hearing" which was "not subject to judicial review as provided for in IRC § 6330." (Compl., Ex., 3, p. 6.) Subsequently, on May 14, 2002, the Tax Court issued an order of dismissal for lack of jurisdiction. (Compl., Ex. 4.)

The issue of what constitutes notification was addressed by the Sixth Circuit in Wiley v. United States, 20 F.3d 222 (6th Cir. 1994). Although the notification in that case involved a notice of deficiency, the analysis is comparable as applied to a notice of intent to levy, an outgrowth of a failure to comply with a notice of deficiency. Like the present action, the plaintiff in Wiley contested the procedural irregularities regarding the notice provision. Although the Circuit found a genuine issue of material fact regarding whether the notice had actually been sent, the appellate court was clear as to notification:

The only requirement is that the IRS send the notice of deficiency by certified or registered mail to the taxpayer's last known address; actual receipt of the notice is not necessary.
Id. at 224. (Emphasis added.) See also United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 (1984); United States v. Dixon, 672 F. Supp. 503, 506 (N.D.Ala. 1987), aff'd 849 F.2d 1478 (11th Cir. 1988).

In this case, the burden of establishing that the Defendant failed to comply with mailing the notices rests with the taxpayer. Williamson v. United States, 84 F. Supp.2d 1217, 1221 (D.N.M. 1999) (finding taxpayers' failure to accept notice of levy did not render notices invalid), aff'd, 215 F.3d 1338 (10th Cir. 2000). In regard to that burden, the Plaintiff has not established the jurisdiction of the Court over this proceeding. Instead, the record submitted by Plaintiff reflects the notice of intent to levy was mailed in accordance with notice provisions § 6330. Accordingly, the Court is without jurisdiction to hear the collection due process claims.

Finally, the Plaintiff has failed to establish the Court's jurisdiction as to his remaining claims to the extent they seek a refund of amounts collected as he has not established or alleged filing a claim for refund. See Firsdon v. United States, 95 F.3d 444, 446 (6th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).


As the Court is without jurisdiction over the claims set forth in the complaint, Defendant's motion to dismiss (Doc. No. 3) is granted.


Summaries of


United States District Court, N.D. Ohio, Western Division
Feb 6, 2003
Case No. 3:02 CV 7294 (N.D. Ohio Feb. 6, 2003)
Case details for


Case Details


Court:United States District Court, N.D. Ohio, Western Division

Date published: Feb 6, 2003


Case No. 3:02 CV 7294 (N.D. Ohio Feb. 6, 2003)