Opinion
Case No. 8:02-MC-34-T-24MAP
August 5, 2002
ORDER
THIS CAUSE came before the Court on Petitioner's Motion to Quash Third Party Summons (doc. 1), Respondents' Motion to Dismiss (doc. 5), and Respondents' Supplemental Motion to Dismiss (doc. 8). The Internal Revenue Service ("IRS") issued eight administrative summons to third-party recordkeepers in its investigation of Delmore Holmstrom's tax liabilities. The United States claims the IRS mailed the eight administrative summons on January 31, 2002 (1 summons), February 1, 2002 (1 summons), February 4, 2002 (3 summons), February 7, 2002 (2 summons), and March 11, 2002 (1 summons), respectively. On March 25, 2002, Petitioner filed his motion to quash the summons.
Pursuant to 28 U.S.C. § 636(b)(1)(A), Petitioner's Motion to Quash Third Party Summons (doc. 1), Respondents' Motion to Dismiss (doc. 5), and Respondents' Supplemental Motion to Dismiss (doc. 8) have been referred to the undersign for disposition by United States District Judge Susan C. Bucklew (see doc. 11).
These third-party recordkeepers include First Union Bank, Fifth Third Bank, American Express Centurion Bank, SunTrust Bank, Bank of America, Providian National Bank, The Huntington National Bank, and GMAC Mortgage Corporation.
When the IRS serves a summons on a third-party recordkeeper it must also give notice to the person to whom the records pertain. A taxpayer may sue the United States to quash a summons within twenty days after the IRS gives notice to the taxpayer. 26 U.S.C. § 7609(b)(2)(A). The IRS is considered to have given notice on the date it mails the notice. See Callahan v. Schultz, 783 F.2d 1543, 1545 (11th Cir. 1986). In this case, the United States claims seven of the eight administrative summons were mailed more than twenty days prior to the Petitioner filing his motion to quash, and as a result, this Court no longer has subject matter jurisdiction over the motion to quash concerning these seven administrative summons. However, the United States has not provided any proof or evidence as to the dates it claims the summons were mailed. Therefore, its motion to dismiss (doc. 5) is deferred and the United States is directed to submit evidence of the dates the summons were mailed within 30 days from the date of this order. The United States may provide proof by affidavit or by certified mail receipts. See Shisler v. United States, 199 F.3d 848, 851 (6th Cir. 1999).
Notice of an administrative summons must be accompanied by a copy of the summons which has been served on the third-party recordkeeper and must contain an explanation of the taxpayer's right to bring a proceeding to quash the summons. 26 U.S.C. § 7609(a)(1).
In its Supplemental Motion to Dismiss (doc. 8), the United States claims the IRS has withdrawn the eighth administrative summons mailed on March 11, 2002, to GMAC Mortgage Corporation. Therefore, Petitioner's motion to quash as it relates to the administrative summons mailed on March 11, 2002, to GMAC Mortgage Corporation is moot. Accordingly, it is hereby
ORDERED:
1. Petitioner's Motion to Quash (doc. 1) is DEFERRED.
2. Respondents' Motion to Dismiss (doc. 5) is DEFERRED. The United States is directed to submit evidence within 30 days from the date of this order to show when notice was given to the Petitioner as it relates to the seven remaining administrative summons. 3. Respondents' Supplemental Motion to Dismiss (doc. 8) is GRANTED. The Petitioner's Motion to Quash as it relates to the administrative summons issued by the IRS on March 11, 2002, to GMAC Mortgage Corporation is DISMISSED.