Summary
noting that, even if pro se plaintiff had difficulty comprehending tax laws because of his educational level, the clear language of the notices apprised him when he must act
Summary of this case from Ramos v. DavisOpinion
No. 1:01 cv 597
March 7, 2002
OPINION AND ORDER ON UNITED STATES OF AMERICA'S MOTION TO DISMISS
On September 17, 2001, plaintiff filed his complaint in this action pursuant to 26 U.S.C. § 6330(d)(1)(A) seeking damages as well as seeking to have set aside two "Notices of Determination" issued by the Internal Revenue Service ("IRS") on August 15, 2001. The matter is currently before the court on defendant the United States of America's Motion to Dismiss (docket no. 4). Plaintiff has opposed the motion (docket no. 6). For the following reasons, the court grants the motion and dismisses this action as untimely.
Discussion
After plaintiff received from the IRS a notice explaining his right to a collection Due Process hearing, plaintiff submitted an IRS form 12153 "Request for a Collection Due Process Hearing." Plaintiff was granted a hearing on May 8, 2001. On August 15, 2001, the IRS Appeals Office in Detroit, Michigan issued two "Notices of Determination Concerning Collection Actions under Section 6320 and/or 6330." In those notices, the IRS determined that it would not withdraw Notices of Intent to Levy previously issued for the period 1990 — 1992 (income tax) and for December 31, 1994 (civil penalty).
On September 17, 2001, 33 days after issuance of the "Notices of Determination," plaintiff filed his complaint in this action, seeking to have the court declare the determinations "invalid" and requesting an award of punitive damages based on what he alleges is "lawless action" by the IRS.
Plaintiff's complaint includes attached copies of the "Notices of Determination" (Exhibits A1 and A2). Each notice contains a stamped date of August 15, 2001, as well as a reference to a designated "CERTIFIED MAIL NUMBER." Each notice also includes within its text a statement notifying plaintiff that he had 30 days from the date of the notice to file a petition disputing the IRS' determination.
The Notice of Determination for the 1990 — 1992 tax periods contains the following statement:
If you want to dispute this determination in court, you must file a petition with the United States Tax Court for a redetermination within 30 days from the date of this letter.
Complaint, Exhibit A1 (emphasis supplied). The Notice of Determination for the December 31, 1994 penalty contains the following statement:
If you want to dispute this determination in court, you have 30 days from the date of this letter to file a complaint in this appropriate United States District Court for a redetermination.
Complaint, Exhibit A2 (emphasis supplied).
The United States responded to plaintiff's complaint by filing the present motion to dismiss, seeking dismissal on the basis that the court lacks jurisdiction to hear this action because plaintiff failed to file his complaint within the 30-day period prescribed by 26 U.S.C. § 6330(d)(1).
Title 26 U.S.C. § 6330(d)(1) provides as follows:
(d) Proceeding after hearing. —
(1) Judicial review of determination. — The person may, within 30 days of a determination under this section, appeal such determination —
(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.
The United States argues that based on § 6330(d)(1), this action was not timely filed within the required 30-day period and therefore the court lacks jurisdiction over plaintiff's request for review of the IRS' determinations. Plaintiff disputes this assertion, for a number of reasons, which include the following: (1) he is a pro se litigant, and the tax laws are written in such a way that he should be deemed to have difficulty in understanding and complying with them; (2) mail service in the United States was suspended for one or more days following the attacks on the World Trade Center and Pentagon on September 11, 2001; and (3) in any event, a three-day "mail rule" should apply and his complaint should be deemed timely because, he contends, he filed it 30-days after he received the Notices of Determination.
While § 6330(d)(1) further provides that a person shall have an additional 30 days to file an appeal if a court determines that the appeal was originally filed in an incorrect court, id., that provision is not at issue here, as plaintiff is not claiming that a previous appeal has been dismissed after having been filed in the wrong court.
The court begins by noting the limits of its jurisdiction, which are informed by settled principles of sovereign immunity. "The United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Hercules, Inc. v. United States, 516 U.S. 417, 116 S.Ct. 981, 985 (1996) (citations omitted); accord United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 1368 (1990). In addition, "[w]hen the defendant challenges subject matter jurisdiction through a motion to dismiss, the plaintiff bears the burden of establishing jurisdiction." Hedgepeth v. State of Tennessee, 215 F.3d 608, 611 (6th Cir. 2000); see also Douglas v. E.G. Baldwin Assoc., Inc., 150 F.3d 604, 606 (6th Cir. 1998) ("[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction") (citation omitted). In particular, "when jurisdictional facts are challenged, the party claiming jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject matter." Ohio Nat'l Life Ins. Co. v. United States of America, 922 F.2d 320, 324 (6th Cir. 1990).
As for plaintiff's excuse that he is a pro se litigant, the court concludes that this explanation does not excuse his non-compliance with the 30-day requirement. Even assuming that plaintiff (whose educational level is not known to the court) has difficulty comprehending the tax laws, any such difficulty did not prevent him from responding to the notices in a timely manner; the notices themselves informed plaintiff, in clear language, when he must act. Plaintiff has failed to identify anything about the notices' explanation of the 30-day requirement that he did not understand.
As for plaintiff's reliance on the alleged temporary suspension of mail service in the United States for one or more days following the attacks of September 11, the court fails to see how even a brief suspension of mail service could have prevented plaintiff from filing his action within the required 30-day time limit. By all indications — and plaintiff has utterly failed to show otherwise — the IRS mailed its Notices of Determination to him a full 27 days before September 11, 2001. Although plaintiff asserts, in his supporting brief (without benefit of affidavit), that the suspension of mail service "cost" him time needed to prepare his complaint because "[t]he complaint it self [sic] came from hired paralegals, that are outside the State of Michigan," typically, one is not excused from complying with a statutorily — prescribed filing period simply because he is slow in seeking or obtaining legal assistance. In addition, plaintiff resides in Kentwood, Michigan (located minutes from the Grand Rapids, Michigan federal courthouse), and he has not alleged that he was personally affected by the events of September 11 in a manner which would reasonably prevent him from responding to the notices. By all indications plaintiff should have been able to file his complaint in person (and likely he did — see below) rather than having to rely on mail service to achieve its timely filing.
As for the plaintiff's assertion that the court should in any event apply a three-day "mail rule" such as that contemplated by Fed.R.Civ.P. 6(e), the Federal Rules only govern procedures in civil suits once an action is begun. A civil action is commenced by filing a complaint with the court. Fed.R.Civ.P. 3. "Filing with the Court" is defined by the rules as "filing . . . with the clerk of court," "filing" with the judge (where permitted), or "filing" by electronic means in compliance with the local rules. Fed.R.Civ.P. 5(e). Nothing in Rule 6(e) provides that an action is deemed "filed" upon mailing by a plaintiff.
The Sixth Circuit has held, in the context of a petition to quash a third-party summons that is filed more than 20 days after the IRS mails notice of the summons to the taxpayer under 26 U.S.C. § 7609(b)(2)(A), that the petition must be dismissed for lack of jurisdiction and Fed.R.Civ.P. 6(e) does not extend the limitations period by three days. Shisler v. United States of America, 199 F.3d 848, 852 (6th Cir. 1999); Clay v. United States of America, 199 F.3d 876, 880 (6th Cir. 1999). If a limitation period is jurisdictional for purposes of § 7609, then there is no reason why a similar period prescribed within another code section, such as § 6330(d)(1), should not also be viewed as jurisdictional and therefore not subject to extension. The United States Tax Court has clearly viewed the 30-day period prescribed in § 6330(d)(1) as jurisdictional. Sarrell v. Commissioner of Internal Revenue, 117 T.C. 122, 125 (2001); McCune v. Commissioner of Internal Revenue, 115 T.C. 114, 117-118 (2000). The court agrees that the time period is jurisdictional and cannot be extended simply because the plaintiff received the Notice of Determination by mail.
Assuming that equitable considerations would at all be relevant under certain circumstances, see United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 852 (1997) ("Tax law, after all, is not normally characterized by case-specific exceptions reflecting individualized equities"), it is clear that equities do not here demand that plaintiff be granted an extension of time in which to file his action. Plaintiff complains that he had to go to the Kentwood post office to obtain the notices, which he contends were not "delivered to [his] domicile." Plaintiff's Answer to Defendant's Motion to Dismiss, at 1. However, presumably plaintiff received some timely notice that he had mail to retrieve at the post office, perhaps through notice of an unsuccessful attempt by the Postal Service to make delivery while plaintiff was not at home. There is no indication on the record that the address to which the IRS mailed the notices via certified mail was not plaintiff's correct address. While plaintiff argues that not applying a three-day mail rule permits the IRS to "hold" a document before mailing, thus deliberately reducing the amount of time in which a taxpayer may respond by filing a complaint, plaintiff's concern is not reasonably justified. Where — as was done here — the IRS mails a notice by certified mail, establishing the date on which it was both mailed and received should be a relatively straightforward process. See Shisler, 199 F.3d at 851 (certified mail receipts were sufficient to prove dates of mailing). It is telling that plaintiff does not say on what date he retrieved the notices from the post office; if he had received them long after the dates of issuance, no doubt he would have been able to provide the court with this information. In any event, the court is not inclined to apply a rule which would make the timeliness of plaintiff's complaint dependent on when he chooses to retrieve his mail.
The address which plaintiff provided on his complaint filed in this action is 6092 Woodfield Drive, S.E., Apt. 4, Kentwood, Michigan 49549. This is the same address and zip code which plaintiff provided to the IRS in a letter dated April 27, 2001. Complaint, Exhibit F. Although the Notices of Determination list plaintiff's zip code as 49548-8542, Complaint, Exhibits A1, A2, plaintiff had provided the 49548 zip code to the IRS in a letter dated October 28, 2000. Complaint, Exhibit B1. In addition, the court has observed that plaintiff himself has listed his zip code as 49548 on his Brief in Support of Plaintiff's Answer to Defendant's Motion to Dismiss. Notwithstanding plaintiff's apparent confusion regarding his own zip code, it appears that his zip code is indeed 49548.
Finally, while 26 U.S.C. § 7502(a) establishes what is in effect a "mailbox rule" in some instances, there is no indication in the statute that this rule applies here. Mailbox rules which operate to extend to limitations periods have been applied by the courts only under extremely narrow circumstances, such as where the plaintiff is incarcerated and is therefore unable to control when his pleading is placed in the mails. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999) (prison mailroom filing rule of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) applied to render federal prisoner's motion to vacate sentence under 28 U.S.C. § 2255 timely). The court is simply not inclined to apply any rule which would operate to extend the statutory period at issue here, under the circumstances as presented, where Congress has clearly chosen to limit the time period in which a taxpayer may file a complaint against the sovereign. The federal courts "have been rather consistent in denying equitable' pleas to disregard the strict timing rules" of the Tax Code. Smith v. United States, 96 F.3d 800, 802 (6th Cir. 1996). In any event, plaintiff's complaint bears a sworn execution date of September 17, 2001 — the precise date on which it was filed with the court — thus suggesting that it was delivered to the court in person, not by mail. See id. (mailbox rule of 26 U.S.C. § 7502 did not apply where plaintiff sent returns by private courier service).
The burden was on the plaintiff to establish that the court has subject matter jurisdiction over this action by virtue of a timely filed complaint. Plaintiff has failed to meet this burden, and the court therefore dismisses this action, which was untimely filed, for lack of jurisdiction.