Pursuant to Local Rules 26.1-1 and 26.1-2 of this Court, it is hereby certified that the following persons and entities have an interest in the outcome of this case or have participated as attorneys or judges in the adjudication of the case and were not so identified in the first brief filed in this appeal:
William L. Blagg, Associate Area Counsel (SB/SE), Internal Revenue Service
John A. Dudeck, Jr., Attorney, Appellate Section, Tax Division, U.S. Department
of Justice
J. Feist, Settlement Officer, Internal Revenue Service
Douglas N. Frazier, U.S. Magistrate Judge, Middle District of Florida
Michael J. Kearns, Chief, Civil Trial Section, Southern Region, Tax Division, U.S.
Department of Justice
Donald L. Korb, Chief Counsel, Internal Revenue Service
Eileen J. O’Connor, Assistant Attorney General, Tax Division, U.S. Department of
Justice
Tamra Phipps, Assistant United States Attorney
Vivian N. Rodriguez, Attorney (SB/SE), Internal Revenue Service
Thomas J. Sawyer, Assistant Chief, Civil Trial Section, Southern Region, Tax Division,
U.S. Department of Justice
Patricia Skorupan, Chief, Insolvency Unit II (SB/SE:CS), IRS
John E. Steele, U.S. District Judge, Middle District of Florida
Andrea R. Tebbets, Attorney, Appellate Section, Tax Division, U.S. Department of
Justice
Denise Traum, Appeals Team Manager, IRS
Pursuant to 11th Cir. R. 28-1(c) and Fed. R. App. P. 34(a), counsel for the appellee respectfully inform this Court that they believe that oral argument is not necessary in this case, because the appeal presents a settled question of law regarding the Tax Court’s exclusive jurisdiction over collection due process cases involving income tax liabilities.
PAGE
Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Statement regarding oral argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of authorities . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . iv
Statement of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of the case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Course of proceedings and disposition in the court
below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The District Court correctly dismissed this case
for lack of subject-matter jurisdiction, because
the Tax Court has exclusive jurisdiction over
CDP cases involving income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PAGE
A. The United States has waived its sovereign immunity
in CDP cases only on the terms set forth in I.R.C.
§ 6330(d) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. The Tax Court had exclusive jurisdiction over this
action, because it involves income taxes . . . . . . . . . . . . . . . . . . . . . . . 10
C. Taxpayer’s remaining arguments are meritless . . . . . . . . . . . . . . . . . . . 12
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Certificate of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CASES: PAGE(S)
Chaney v. TVA, 264 F.3d 1325 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . 6
* Christensen v. Ward, 916 F.2d 1462 (10th Cir. 1990) . . . . . . . . . . . . . . . . 14
* Fostvedt v. United States, 978 F.2d 1201 (10th Cir. 1992) . . . . . . . . . . . . . 14
Goza v. Commissioner, 114 T.C. 176 (2000) . . . . . . . . . . . . . . . . . . . . . 11
* Marino v. Brown, 357 F.3d 143 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . 6, 11
Means v. United States, 176 F.3d 1376 (11th Cir. 1999) . . . . . . . . . . . . . . . 8
Moore v. Commissioner, 114 T.C. 171 (2000) . . . . . . . . . . . . . . . . . . . . 9
* Peterson v. Kreidich, 139 Fed. Appx. 134, 2005 WL. 1130354
(11th Cir. May 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 18
Phillips v. Commissioner, 283 U.S. 589, 51 S. Ct. 608 (1931) . . . . . . . . . . . . 13
Roberts v. Commissioner, 329 F.3d 1224 (11th Cir. 2003) . . . . . . . . . . . . . . 9
Schulz v. IRS, 413 F.3d 297 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . 5, 14
* Cases or authorities chiefly relied upon are marked by asterisks.
CASES: PAGE(S)
Steidel v. Evans, 90 A.F.T.R.2d (RIA) 5705, 2002 WL.
1988174 (W.D. Wash. 2002), aff’d without published op.,
58 Fed. Appx. 698, 91 A.F.T.R.2d 922 (9th Cir. 2003) . . . . . . . . . . . . . . . 11
True v. Commissioner, 108 F. Supp. 2d 1361 (M.D. Fla. 2000) . . . . . . . . . . . . . . 11
United States v. Dalm, 494 U.S. 596, 110 S. Ct. 1361 (1990) . . . . . . . . . . . . . 8
* United States v. Mitchell, 445 U.S. 535, 100 S. Ct. 1349 (1980) . . . . . . . . . . . . 8
* United States v. Mitchell, 463 U.S. 206, 103 S. Ct. 2961 (1983) . . . . . . . . . . . . 8
* United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.
Ct. 1011 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767 (1941) . . . . . . . . . . . . . 8
* Voelker v. Nolen, 365 F.3d 580 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . 11, 13
* White v. United States, 250 F. Supp. 2d 919 (M.D. Tenn.
(2003), aff’d without published op., 2004 WL 3330106
(6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
* Cases or authorities chiefly relied upon are marked by asterisks.
STATUTES AND REGULATIONS: PAGE(S)
5 U.S.C. :
§ 701(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
§ 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Internal Revenue Code (26 U.S.C):
§ 6212(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 6213(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 6320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§ 6320(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 6330(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 6330(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
* § 6330(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7, 8, 10, 12, 15
Internal Revenue Service Restructuring and Reform Act
of 1998, Pub. L. No. 105-206, § 3401, 112 Stat.
685, 746-50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pension Protection Act of 2006, P.L. 109-280, § 855, 120
Stat. 780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
* Cases or authorities chiefly relied upon are marked by asterisks.
STATUTES AND REGULATIONS: PAGE(S)
28 U.S.C.:
§ 1291 . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 2
§ 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 2107(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Treas. Reg. § 301.6330-1(e)(3) (Q & A-E8) . . . . . . . . . . . . . . . . . . . . . . . 9
Treas. Reg. § 301.6330-1(f)(2) (Q & A-F3) . . . . . . . . . . . . . . . . . . . . . . . 11
MISCELLANEOUS:
Fed. R. App. P. 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Fed. R. App. P. 34(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________________________ No. 06-1XXXJJ WARREN PATRIOT, Petitioner-Appellant v. UNITED STATES OF AMERICA, Respondent-Appellee ________________________________________ ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ________________________________________ BRIEF FOR THE APPELLEE ________________________________________ STATEMENT OF JURISDICTION
On August 9, 2005, the Tampa Appeals Office of the Internal Revenue Service mailed to Warren Thomas Barry (taxpayer) one or more notices of determination pursuant to Sections 6320 and 6330 of the Internal Revenue Code (26 U.S.C.) (the Code or I.R.C.), approving proposed collection action with respect to taxpayer’s unpaid federal income taxes for the years 2000, 2001, and 2002. (See Doc. 1 at 1; Doc. 2 at fourth page.) 1 On August 29, 2005, taxpayer filed a petition in the United States District Court for the Middle District of Florida, seeking to overturn the Appeals Office’s determinations. (Doc. 1.) As we explain in the Argument, infra, the District Court lacked subject-matter jurisdiction over taxpayer’s petition, because the Tax Court has exclusive jurisdiction over collection-due-process (CDP) cases involving income taxes. See I.R.C. 6330(d)(1).
On April 19, 2006, the District Court (Judge Virginia Hernandez Covington) issued an order granting the Government’s motion to dismiss the action for lack of subject-matter jurisdiction, and on April 26, 2006, the Court denied taxpayer’s motion for reconsideration. (Docs. 15, 18.) The Court’s order is final and appealable and disposes of all claims of all parties. On May 5, 2006, taxpayer timely filed a notice of appeal. (Doc. 19.) See 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a) This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the District Court correctly dismissed taxpayer’s petition for lack of subject-matter jurisdiction, because the Tax Court has exclusive jurisdiction over CDP cases involving income taxes.
STATEMENT OF THE CASE
1. Course of proceedings and disposition in the court below
Taxpayer filed a petition in the District Court challenging notices of determination issued by the IRS Appeals Office that upheld proposed collection action with respect to his unpaid federal income tax liabilities for 2000-2002. (Doc. 1.) The District Court granted the Government’s motion to dismiss for lack of subject-matter jurisdiction and denied taxpayer’s motion for reconsideration. (Docs. 3, 15-18.) This appeal followed. (Doc. 19.)
2. Statement of facts
In his petition in the District Court, taxpayer alleged that the IRS Appeals Office in Tampa, Florida, had issued two Notices of Determination Concerning Collection Action(s) to him with respect to the tax periods ending December 31, 2000, 2001, and 2002. (Doc. 1 at 1.) Taxpayer further alleged that the IRS had violated his due process
rights by not allowing him an in-person CDP conference under I.R.C. §§ 6320 and 6330. (Id.) He requested that the notices of determination be overturned and that a new CDP hearing be scheduled. (Id. at 1-2.) Taxpayer repeated these demands in a “Supplement” to the petition, to which he attached a letter dated July 26, 2005, from himself to the Appeals Office, concerning his hearing request and bearing the subject line “Re: U.S. Individual Income Tax/Form 1040, Due Process Hearing.”2 (Doc. 2 at fourth page.)
On October 25, 2005, the Government moved to dismiss the action for lack of subject-matter jurisdiction, on the ground that the underlying taxes at issue were income taxes and that the Tax Court had exclusive jurisdiction over CDP cases involving income taxes. (Doc. 3.) In his opposition to the Government’s motion, taxpayer stated that he “admits that his income tax problem is not one to normally go to District Court.” (Doc. 4 at 2.) He argued, however, that the District Court “should seize jurisdiction,” because he was raising due process claims of a “constitutional magnitude.” (Id.)
The District Court granted the Government’s motion and dismissed the action for lack of subject-matter jurisdiction. (Doc. 15.) Because “the underlying taxes in this case are income taxes,” the Court said, “the Tax Court, not this Court, has jurisdiction” under I.R.C. § 6330(d)(1). (Id. at 2.) The District Court rejected taxpayer’s argument that his due process claims conferred jurisdiction upon it. The Court relied in that regard on this Court’s holding in Peterson v. Kreidich, 139 Fed. Appx. 134, 2005 WL 1130354 (11th Cir. May 13, 2005), that an alleged due process violation does not confer subject matter jurisdiction on a district court in a CDP case “‘if the claim involves income tax issues.’” (Id. at 2-3.) 3
Taxpayer moved for reconsideration on the ground that the opinion in Schulz v. IRS, 413 F.3d 297 (2d Cir. 2005), “supercedes Peterson v. Kreidich and that judicial review can only be addressed in Article III courts.” (Doc. 16 at 2.) Finding no intervening change in the legal or factual basis of its dismissal order, the District Court denied taxpayer’s motion. (Doc. 18.) This appeal followed.4
3. Standard of review
This Court reviews de novo the dismissal of a complaint for lack of subject-matter jurisdiction. Chaney v. TVA, 264 F.3d 1325, 1326 (11th Cir. 2001); see also Marino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004) (CDP case).
SUMMARY OF ARGUMENT
The District Court correctly dismissed this action for lack of subject-matter jurisdiction. The limited waiver of sovereign immunity in I.R.C. § 6330(d)(1) gives the Tax Court exclusive jurisdiction to review CDP determinations involving income taxes and other types of tax over which the Tax Court has jurisdiction. Section 6330(d)(1)(B) permits such review by the district courts only when the Tax Court lacks jurisdiction over the type of tax at issue. Since this case involves income taxes, it follows that subject-matter jurisdiction rests exclusively with the Tax Court.
Taxpayer’s attempt to frame his claim in “constitutional” due process terms does not cure the fatal jurisdictional defect in his suit. Regardless of its merits, the allegation of a constitutional violation does not override the conditions prescribed by Congress for a waiver of sovereign immunity. This Court and others have recognized, moreover, that the Tax Court may indeed hear constitutional claims.
The order of the District Court is correct and should be affirmed.
ARGUMENT
The District Court correctly dismissed this case for lack of subject-matter jurisdiction, because the Tax Court has exclusive jurisdiction over CDP cases involving income taxes
A. The United States has waived its sovereign immunity in CDP cases only on the terms set forth in I.RC. §6330(d)
It is well settled that the United States, as a sovereign, may not be sued without its consent, and that the terms of its consent define the court’s jurisdiction. See United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361(1990); United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767 (1941); Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999). A waiver of sovereign immunity may not be implied but must be unequivocally expressed by federal statute. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349 (1980). If Congress has not waived the United States’ immunity, the court lacks jurisdiction over the subject matter of an action against the Government, and dismissal is required. United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011 (1992); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961 (1983).
Section 6330(d)(1) of the Code contains a limited waiver of sovereign immunity in the case of a suit brought by a taxpayer who is unsatisfied with the determination of the IRS Appeals Office with respect to a CDP hearing. Congress enacted § 6330 – along with § 6320 – in order to provide certain procedural safeguards for taxpayers facing IRS collection activity. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 3401, 112 Stat. 685, 746-50. After the IRS files a notice of lien with respect to unpaid taxes, and before it may levy upon a taxpayer’s property to collect the unpaid liabilities, it must notify the taxpayer of his right to a “collection-dueprocess” hearing before the IRS Appeals Office. I.R.C. §§ 6320(a), 6330(a); see also Roberts v. Commissioner, 329 F.3d 1224, 1227 (11th Cir. 2003); Moore v. Commissioner, 114 T.C. 171, 174 (2000).
After a CDP hearing, the Appeals Office sends the taxpayer a notice of determination setting forth its findings and conclusions and advising the taxpayer of his right to seek judicial review of the determination within 30 days of the notice date. I.R.C. §§ 6330(c)(3)(C), 6330(d)(1); Treas. Reg. § 301.6330-1(e)(3) (Q & A-E8). Such an appeal may be made “(A) to the Tax Court (and the Tax Court shall have
jurisdiction with respect to such matter); or (B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States.” I.R.C. § 6330(d)(1). In this case, as we shall demonstrate, taxpayer brought his challenge to the wrong court.5
B. The Tax Court had exclusive jurisdiction over this action, because it involves income taxes
It is undisputed that the CDP determination(s) issued to taxpayer in this case pertained to his unpaid income tax liabilities for 2000, 2001, and 2002. (Doc. 1 at 1; Doc. 2; Doc. 4 at 2.) It follows that jurisdiction to review the determinations lay exclusively with the Tax Court and, therefore, that the District Court correctly dismissed the suit.
Under the express statutory language of I.R.C. § 6330(d)(1)(B), the jurisdiction of the district courts to review CDP determinations is limited to the types of “underlying tax liability” that the Tax Court does
not have jurisdiction to review, such as excise taxes, employment taxes and frivolous return penalties. The Treasury Regulations interpret the phrase “underlying tax liability” as referring to the “type of tax” at issue: “If the Tax Court would have jurisdiction over the type of tax specified in the CDP Notice (for example, income and estate taxes), then the taxpayer must seek judicial review by the Tax Court.” Treas. Reg. § 301.6330-1(f)(2) (Q & A-F3). This Court and others have reached the identical conclusion. Peterson v. Kreidich, 139 Fed. Appx. 134, 2005 WL 1130354 (11th Cir. 2005); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004); Marino v. Brown, 357 F.3d at 145-46; Steidel v. Evans, 90 A.F.T.R.2d (RIA) 5705, 5707-08, 2002 WL 1988174 (W.D. Wash. 2002), aff’d without published op., 58 Fed. Appx. 698, 91 A.F.T.R.2d 922 (9th Cir. 2003); White v. United States, 250 F. Supp. 2d 919, 922-23 (M.D. Tenn. 2003), aff’d without published op., 2004 WL 3330106 (6th Cir. 2004); True v. Commissioner, 108 F. Supp. 2d 1361, 1364 (M.D. Fla. 2000); Goza v. Commissioner, 114 T.C. 176, 181-82 (2000).
Taxpayer’s income tax liabilities fall squarely within the jurisdiction of the Tax Court under I.R.C. §§ 6212(a), 6213(a), and 7442. Taxpayer concedes (Doc. 4 at 2), as he must, that a district court
“normally” could not hear this case. What taxpayer fails to grasp is that there is nothing exceptional about his claims. In the absence of subjectmatter jurisdiction, the District Court had no alternative but to dismiss the case.
C. Taxpayer’s remaining arguments are meritless
Taxpayer’s attempt to couch his claims in constitutional due process terms (Br. 2, 7, 21; Doc 4; Doc. 16) in no way cures the jurisdictional defect of his suit. As we have just explained, the limited waiver of sovereign immunity in I.R.C. § 6330(d)(1) confines the jurisdiction of the district courts in CDP cases to those in which the Tax Court would not have jurisdiction of the underlying tax liability. I.R.C. § 6330(d)(1)(B). Where, as here, a taxpayer challenges collection of income taxes, he may seek judicial review of determinations by the Appeals Office only in the Tax Court. I.R.C. § 6330(d)(1)(A). The fact that taxpayer purports to rest his challenge on constitutional grounds does not obviate the need for compliance with the conditions imposed by Congress in § 6330(d)(1) on the sovereign’s consent to suit.6
Taxpayer’s assertion that the Tax Court is “unable” to decide constitutional claims (Doc. 4 at 2; Doc. 16 at 2) is simply wrong. Indeed, as the District Court observed (Doc. 15 at 2), this Court addressed a similar argument in Peterson v. Kreidich and concluded that “an alleged [due process] violation does not confer subject matter jurisdiction on the district court if the underlying claim involves income tax issues.” 139 Fed. Appx. at 136, 2005 WL 1130354 at * 1. There is no principled reason for the Court to reach a different conclusion here. Accord, Voelker v. Nolen, 365 F.3d at 581 (taxpayer who raised only due process arguments in his CDP appeal could not “reasonably dispute that his suit pertains to his underlying income tax deficiency”); White v. United States, 250 F. Supp. 2d at 922 (“[A] procedural due process claim is . . . properly brought in the Tax Court. Very few courts have expressly addressed this issue, but those that have hold that the Tax Court has jurisdiction over claims involving a [CDP hearing], and district courts
do not.”); see also Christensen v. Ward, 916 F.2d 1462, 1475 (10th Cir. 1990) (“Plaintiff's assertion that the Tax Court lacks constitutional jurisdiction over individual tax liability is without merit.”).
Taxpayer’s reliance (Br. 7, 15-16) on the Second Circuit’s decision in Schulz v. IRS, 413 F.3d 297 (2d Cir. 2005), is misplaced. Schulz stands only for the proposition that a taxpayer cannot be forced to risk incarceration to challenge an IRS summons. 413 F.3d at 302. It has nothing to do with civil collection of existing tax debts and, indeed, does not include the language characterized by taxpayer as the “definite ruling” (Doc. 16 at 1) of the Second Circuit in the case. Taxpayer’s assertion that Schulz mandates “independent judicial review” of administrative collection activity by the IRS (Br. 16; Doc. 16 at 1; see Doc. 4 at 3) is superfluous, since that is precisely what taxpayer has received in this case.
Finally, taxpayer’s attempt to invoke jurisdiction under 28 U.S.C. § 1331, and the Administrative Procedure Act, 5 U.S.C. § 702, is equally without merit. (Br. 21.) It is well settled that sovereign immunity is not waived by general jurisdictional statutes such as 28 U.S.C. § 1331. Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992). Furthermore, 5 U.S.C. § 702 states that “[n]othing herein (1)
affects other limitations on judicial review or the power or duty of the court to dismiss any action . . . ; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Accord, 5 U.S.C. § 701(a)(1) (“This chapter applies . . . except to the extent that (1) statutes preclude judicial review . . . .”). By its express terms, I.R.C. § 6330(d)(1) contains “other limitations on judicial review.”
CONCLUSION
For the foregoing reasons, the order of the District Court is correct and should be affirmed.
Respectfully submitted,
EILEEN J. O’CONNOR
Assistant Attorney General
ANDREA R. TEBBETS
(202) 353-9703
JOHN A. DUDECK, JR.
(202) 514-3026
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
Of Counsel:
PAUL I. PEREZ
United States Attorney
____________________________________
1“Doc.” references are to the documents contained in
the original record as numbered by the Clerk of the District Court. “Br.” references
are to taxpayer’s brief in this Court.
2Taxpayer did not attach a copy of any notice of determination to his petition, but he has appended a copy of one notice to his brief in this Court. While that document is not technically part of the record on appeal under Fed. R. App. P. 10(a), it serves only to confirm the correctness of the District Court’s order dismissing the petition.
3 Pursuant to 11th Cir. Rule 36-2, a copy of the unpublished opinion in Peterson v. Kreidich is attached to this brief as the Addendum.
4 We understand that taxpayer’s wife has a pending appeal that is substantially identical to this one.
5 On August 17, 2006, President Bush signed into law legislation amending § 6330(d)(1) to consolidate all trial-level CDP litigation in the Tax Court. Pension Protection Act of 2006, P.L. 109-280, § 855, 120 Stat. 780. The new amendment applies to determinations made after the date which is 60 days after the date of enactment of the Act. Accordingly, after October 16, 2007, the district courts will no longer have jurisdiction to hear any CDP cases.
6 In any event, taxpayer’s argument that his constitutional due process rights were violated (Br. 16-17) is baseless. The Supreme Court long ago upheld the constitutionality of summary administrative collection procedures contained in the Internal Revenue Code against due process challenges because a tax refund suit is an effective postcollection remedy that satisfies the requirements of constitutional due process. Phillips v. Commissioner, 283 U.S. 589, 595-97, 51 S.Ct. 608 (1931).
CERTIFICATE OF SERVICE
It is hereby certified that this brief was mailed to the Clerk by First-Class Mail, on this 6th day of September, 2006, and that service of the brief was made on the appellant, appearing, pro se, on this 6th day of September, 2006, by mailing two paper copies thereof by First-Class Mail in an envelope properly addressed to him as follows:
Mr. Warren Patriot
Cape Coral, FL 33904
It is also certified that the Internet upload of the electronic brief to the Court of Appeals was completed on this date.
______________________________
JOHN A. DUDECK, JR.
Attorney
-18-
ADDENDUM
Peterson v. Kreidich, 139 Fed. Appx. 134, 2005 WL 1130354
(11th Cir. May 13, 2005)