UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FT. MYERS DIVISION
WTB, )
Petitioner, )
v. ) Case No. 2:06-mc-00xxx
)
UNITED STATES OF AMERICA, )
Respondent. )
The United States, by and through the undersigned counsel, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, moves to dismiss this appeal from an IRS Collection Due Process determination for lack of subject matter jurisdiction because the United States Tax Court, and not this Court, has jurisdiction to entertain the petitioner’s appeal. In support of this motion, United States submits and incorporates the following Memorandum.
MEMORANDUM
Section 6330 of the Internal Revenue Code {Title 26 United States Code, “IRC”} provides a mechanism by which taxpayers receive pre-seizure notice of the intent to levy on assets to collect tax debts, and receive a pre-seizure opportunity to challenge the levy at an administrative hearing. If the taxpayer chooses to exercise that right, a Collection Due Process hearing is held. The hearing officer is required to ensure that the requirements of any applicable law or administrative procedure relating to the service of a levy have been followed. IRC §6330(c)(1). The taxpayer may raise at the hearing “any relevant issue relating to the unpaid tax or the proposed levy….” IRC §6330(c)(2)(A). If the taxpayer had no prior opportunity to challenge the underlying liability, then he may raise the issue at the hearing. IRC §6330(c)(3)(C).
A taxpayer may appeal an adverse administrative determination by filing a petition in the United States Tax Court (if the tax court has jurisdiction over the underlying tax liability) or a complaint in a United States district court (if the tax court lacks jurisdiction with respect to the underlying tax liability). IRC §6330(d)(1).
The pro se petitioner, WTB, filed a petition to Overturn IRS Collection Due Process Determination Issued Pursuant to 26 USC 6330 on August 29, 2005. On September 28, 2005, he filed s Supplement to Petition to Overturn IRS CDPH Determination. The initial petition does not straightforwardly describe the underlying liabilities here, but ambiguously states that WTB requested a Collection Due Process hearing “for the tax periods ending 12/31/2000, 12/31/2001 and 12/31/2002.” Page 4 of the supplement to the petition, however, in the subject line of a letter dated July 26, 2005, shows that the Service has proposed to collect income tax liabilities, and that income taxes underlies the Collection Due Process dispute.
The tax court has jurisdiction over challenges to an IRS determination of income tax liability. IRC §§6212(a), 7442. Accordingly, the tax court has jurisdiction over a Collection Due Process dispute involving the collection of income taxes, and this Court lacks jurisdiction. IRC §6330(d)(1); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004); Marino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004); see also Peterson v. Kreidich, 139 Fed.Appx. 134, 2005 WL 1130354 (11th Cir. 2005) (unpublished1)(copy attached as appendix).
WHEREFORE, the United States moves this Court to dismiss this action for lack of subject matter jurisdiction.
PAUL I. PEREZ
United States Attorney
By: Philip Doyle
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 14198
Washington, D.C. 20044
Telephone: (202) 514-9673
Facsimile: (202) 514-9868
Philip.a.dpyle@usdoj.gov
1 Pursuant to Rule 36-2 of the Local Rules of the Court of Appeals for the Eleventh Circuit, an unpublished decision is not binding precedent but is persuasive authority.
Certificate of Service
IT IS HEREBY CERTIFIED that service of the foregoing Motion by United States to Dismiss and Supporting Memorandum has this 25th day of October, 2005, been made by depositing a copy thereof, first-class postage prepaid, in the United States mail address to the Petitioner.
Signed: Philip Doyle
Trial Attorney, Tax Division