MEMORANDUM AND ORDER

WILLIAM NEALON, Senior District Judge

The Plaintiff, Billy G. Asemani, initiated this civil action by the pro se filing of a document entitled "Petition for Review of Final Administrative Agency Action" on April 19, 2004, in which he challenges the denial of an Offer in Compromise that he submitted to the Internal Revenue Service (IRS). (Doc. 1). The Government filed a motion to dismiss the action for lack of subject matter jurisdiction on August 25, 2004. (Doc. 21). A brief in support of the motion was filed on August 31, 2004. (Doc. 22). Plaintiff filed a brief in opposition to the motion to dismiss on September 8, 2004, alleging only that the Government's motion to dismiss should be denied as it was filed untimely. (Doc. 23). The Government filed a reply brief on September 10, 2004, (Doc. 24). On September 17, 2004, the Plaintiff filed a request for an extension of time in which to file a brief on the issue of subject matter jurisdiction. Since the Plaintiff did not address the question of jurisdiction in his original brief in opposition to the motion to dismiss, he was granted an extension of time to file a supplemental brief on this issue. (Doc. 27). On September 27, 2004, the Plaintiff filed a supplemental brief in opposition to the Government's motion to dismiss. (Doc. 28). A reply was filed by the Government on October 12, 2004. (Doc. 29). The motion is ripe for consideration and, for the reasons that follow, will be granted.

Background

The Plaintiff submitted an Offer in Compromise, IRS Form 656, dated August 30, 2001, to the IRS attempting to settle his outstanding liabilities for the tax years 1997 and 1998. (Complaint, Doc. 1, Exhibit A). Plaintiff offered the amount of $20,000 in compromise of an obligation which the Government avers exceeds $500,000. Asemani stated an inability to pay as justifying his offer on the Form 656 that he submitted to the IRS. (Complaint, Doc. 1, Exhibit A). The IRS rejected Asemani's Offer in Compromise initially and at all levels of administrative appeal that the taxpayer pursued. The IRS found that the Plaintiff did indeed have an ability to pay his outstanding obligations. Plaintiff now contends that the decision of the IRS to deny his Offer in Compromise was and abuse of discretion by an administrative agency and that the finding that he had an ability to pay was made without any basis in fact. He requests this court to set aside the decision of the IRS and to remand the matter for further proceedings. The Government contends that this court lacks jurisdiction over Plaintiff's claim.

Discussion

The United States District Court for the Eastern District of Louisiana recently addressed a district court's jurisdiction to review the IRS's actions in processing a taxpayer's Offer in Compromise in Desire Community Housing Corp. v. U.S., 2004 WL 838041 (E.D.La. March 3, 2004). There, the Court noted: "The authority to compromise a tax liability is stated in 26 U.S.C. § 7122. The statute provides `the Secretary may compromise any civil or criminal case arising under the internal revenue laws prior to reference to the Department of Justice for prosecution or defense.' Section (c) further states that `the Secretary shall prescribe guidelines for officers and employees of the Internal Revenue Service to determine whether an offer-in-compromise is adequate and should be accepted to resolve a dispute'. . . . Under Treasury Regulation § 301.7122-1(b), the Secretary may only compromise a tax liability on one of three grounds. They include (1) doubt as to liability; (2) doubt as to collectibility; and (3) the promotion of effective tax administration." Id. at *2. In Desire, the IRS denied the taxpayers Offer in Compromise because it was not processable due to the taxpayer's failure to comply with certain procedural requirements. The Court held that no jurisdiction existed to review the IRS's determination.

Here, Asemani claimed before the IRS that there was a doubt as to collectibility of his outstanding obligations as he purportedly did not have sufficient assets to pay his outstanding taxes, interest and penalties. The IRS rejected that contention. Plaintiff now requests this court to set aside the IRS's determination and remand the mater to that agency.

In its first brief in support of its motion to dismiss, the Government argued that a taxpayer's only recourse in obtaining judicial review of a determination by the IRS to deny an Offer in Compromise is pursuant to 26 U.S.C. §§ 6630(c)(2)(iii) and 6320(c). This argument is well taken. Section 6630 of the Internal Revenue Code, addressing the notice and opportunity to be heard requirements before levy states, in relevant part:

(a)(1) In general. — No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made. Such notice shall be required only once for the taxable period to which the unpaid tax specified in paragraph (3)(A) relates. . . .

(c) Matters considered at hearing. — In the case of any hearing conducted under this section —

(1) Requirement of investigation. — The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.

(2) Issues at hearing. —

(A) In general. — The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy, including —

(i) appropriate spousal defenses;

(ii) challenges to the appropriateness of collection actions; and

(iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise.

26 U.S.C. §§ 6630(c)(2)(iii) (emphases added). As indicated by the Government, the IRS has not commenced collection activity and has not indicated that it intends to do so. Should the IRS commence collection of Plaintiff's outstanding obligations, he will then have an opportunity to have the denial of his Offer in Compromise reviewed under the above procedure. Outside this setting, the Internal Revenue Code provides no opportunity for the type of review that the Plaintiff now seeks.

In his supplemental brief, Asemani proffered three alterative grounds for this court's jurisdiction to address his claim, viz., mandamus jurisdiction, the Administrative Procedures Act (APA) and the Federal Tort Claims Act (FTCA). None of these grounds, however, provide an avenue for judicial review in a district court of the IRS's decision to deny a taxpayer's Offer in Compromise.

The federal mandamus statute, 28 U.S.C. § 1361 states: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." As this court has previously noted:

Issuance of a writ of mandamus is carefully circumscribed and used "only in extraordinary situations," since it is a "drastic" remedy. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (per curiam). The petitioner seeking mandamus must satisfy the "burden of showing that [his] right to issuance of the writ is `clear and indisputable.'" Bankers Life Casualty Co. v. Holland, 346 U.S. 379, 384 (1953) ( quoting United States v. Duell, 172 U.S. 576, 582 (1899). The Third Circuit has consistently adhered to this stringent standard. See, e.g., PAS v. Travelers Ins. Co., 7 F.3d 349, 357 (3d Cir. 1993) (denying writ of mandamus because it was not clear and indisputable that state claims were not preempted by ERISA); Sunbelt Corp. v. Noble, Denton Associates, Inc., 5 F.3d 28 (3d Cir. 1993) (granting writ because it was clear and indisputable that district court did not have the legal authority to transfer a case to a district where personal jurisdiction was lacking) ; Travellers International AG v. Robinson, 982 F.2d 96, 98 (3d Cir. 1992), cert. denied, 113 S.Ct. 1946 (1993) (denying writ of mandamus because it was not clear and indisputable that petitioner was entitled to jury trial). Hillyer v. Commissioner of Internal Revenue, 1994 WL 240348, *5 (M.D.Pa. Mar 30, 1994). Here, the Plaintiff has no clear and indisputable right to have the denial of his Offer and Compromise overturned. His remedies are circumscribed by the Internal Revenue Code as discussed above. Accordingly, he is not entitled to mandamus relief. See also Martin v. Commissioner of Internal Revenue, 584 F.Supp. 977, 978 (N.D.Ohio 1984).

Similarly, the Administrative Procedures Act is inapplicable to this matter. "[T]he 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.'" Helvie v. Beach, 2003 WL 22073142; at *3 (S.D.Fla. July 16, 2003) ( citing Einhorn v. DeWitt, 618 F.2d 347, 350 (5th Cir. 1980). Moreover, the APA provides that "This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). As noted above, section 7122 of the Internal Revenue Code states that the "the Secretary may compromise any civil or criminal case arising under the internal revenue laws . . ." 26 U.S.C. § 7122(a). The discretionary denial of the Plaintiff's Offer in Compromise by the IRS is not reviewable under the APA.

Lastly, Plaintiff has not stated a cognizable claim under the Federal Tort Claims Act. "The FTCA was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances. . . . The Act accordingly gives federal district courts jurisdiction over claims against the United States for injury caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Sosa v. Alverez-Machain, ___ U.S. ___, 124 S.Ct. 2739, 2747 (2004). However, as the Supreme Court further recognized "the Act also limits its waiver of sovereign immunity in a number of ways." Id. at 2747-8. Indeed, 28 U.S.C. § 2680(c) specifically states that the waiver of immunity does not apply to "[a]ny claim arising in respect of the assessment or collection of any tax . . ." The United States District Court for the Eastern District of New York has considered this specific issue and has concluded that the § 2860(c) exception to the FTCA bars a taxpayer's challenge to the IRS's denial of an Offer in Compromise. Higgins v. United States, 2003 WL 21693717 (E.D.N.Y. May 27, 2003). See also, Wheeler v. Baugh, 2002 WL 373461 (W.D.Pa. Jan. 29, 2002) ("The United States has waived its immunity for certain tort claims under the Federal Tort Claims Act (`FTCA'), 28 U.S.C. § 2671 et seq. and 1346(b), although this immunity does not apply to torts allegedly committed by the IRS concerning the assessment and collection of taxes; the FTCA in fact explicitly exempts from its coverage `any claims arising in respect of the assessment or collection of any tax.' 28 U.S.C. § 2680(c).")

Based on the forgoing, the court concludes that there is no subject matter jurisdiction to hear this case and, therefore, the Government's motion to dismiss will be granted.

An appropriate Order is attached.

ORDER

1) The Defendant's Motion to Dismiss, (Doc. 21), is GRANTED.

2) The Clerk of Court is directed to close this case.