Opinion
CIVIL ACTION NO. 1:02-CV-3167-BBM
February 11, 2003
ORDER
This action is before the court on the United States of America's motion to dismiss for lack of subject matter jurisdiction [Doc. No. 2-1].
Factual and Procedural Background
On November 21, 2002, the plaintiff, Kevin Thompson ("Thompson"), filed this action challenging an Internal Revenue Service ("IRS") determination that he paid insufficient income taxes in 1997. Prior to filing the instant complaint, Thompson received notice of the IRS' intent to create a lien against all of his property. Upon receipt of this notice, Thompson requested a Collection Due Process Hearing with the IRS. He was afforded the administrative hearing, and on October 25, 2002, the IRS issued a Notice of Determination. In the Determination Letter, the IRS confirmed Thompson's income tax deficiency and sustained the proposed levy action against him. The Determination Letter further informed Thompson of his right to appeal the action to the United States Tax Court.
However, Thompson appealed the IRS' decision to this court instead. In his complaint, Thompson argues that the Tax Court does not have jurisdiction over this action. He believes that the issues of law and fact involved in this action cannot be determined by the Tax Court, because "[p]laintiff's complaint involves his claim that employees of the [United States of America] broke the law" and "the Tax Court is not a court of law." Contesting Thompson's assertions, on January 15, 2003, the United States filed a motion to dismiss for lack of subject matter jurisdiction. The United States argues that the Tax Court has jurisdiction over this matter, thereby divesting this court of subject matter jurisdiction. In light of these arguments, the court now resolves the United States motion to dismiss [Doc. No. 2-1].
Subject Matter Jurisdiction
[T]he 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.' United States v. Mitchell, 445 U.S. 535, 538 (1930); see also Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Accordingly, a lawsuit may only be maintained against the United States where the federal government has expressly waived its immunity from suit and has consented to be sued. United States v. Mottaz, 476 U.S. 834, 851 (1986); Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999). When the IRS creates a lien or levy against a taxpayer's property, the United States has waived sovereign immunity and has consented to be sued by the taxpayer. 26 U.S.C. § 6320 (c), 6330(d)(1). However, specific procedures must be followed. Id.
The court notes that a lack of subject matter jurisdiction cannot be waived, even through procedural default. See, e.g., Harris v. United States, 149 F.3d 1304, 1308 (11th Cir. 1998); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1131 (11th Cir. 1994).
Pursuant to the language of section 6330, "[n]o 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 . . . before such levy is made." 26 U.S.C. § 6330 (a)(1). If the taxpayer requests a hearing, "such hearing shall be held by the Internal Revenue Service Office of Appeals." Id. at § 6330(b)(1). At the hearing, the taxpayer may raise any relevant issue relating to the unpaid tax or the proposed lien or levy. Id. at § 6330(b)(2)(A). Thereafter, the IRS Office of Appeals must issue a "Notice of Determination" to the taxpayer. If the taxpayer disagrees with the determination, the taxpayer may seek judicial review of the decision. Id. at § 6330(d)(1). A taxpayer "may, within 30 days of a determination . . . 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." Id. Hence, a taxpayer may appeal the IRS' determination to a federal district court only if the Tax Court does not have jurisdiction. See True v. Comm'r, 108 F. Supp.2d 1361, 1363-64 (M.D. Ha. 2000).
Under this provision, this court must determine whether jurisdiction properly lies here or in the Tax Court. Id. at 1364. The Tax Court has jurisdiction if three requirements are met. Lunsford v. Comm'r, 117 T.C. 159, 161 (2001). First, the Tax Court must have general jurisdiction over the type of tax involved. Id.; see also Green v. Comm'r, 85 T.C.M. (CCH) 742 (2003). In the instant action, this requirement is not at issue: Thompson disputes federal income tax liability, and the Tax Court has jurisdiction over federal income tax deficiencies. Id.; see also Downing v. Comm'r, 118 T.C. 22 (2002); Landry v. Comm'r, 116 T.C. 60 (2001). Second, if the Tax Court has jurisdiction over the type of tax involved, a taxpayer must file a timely petition for appeal. Lunsford, 117 T.C. at 161; Raymond v. Comm'r, 119 T.C. 191 (2002). Here, Thompson filed an appeal of the IRS' decision on November 21, 2002. Since the IRS' determination was issued on October 25, 2002, Thompson's appeal was timely filed within the thirty days permitted by statute. 26 U.S.C. § 6330 (d)(1); see also Green, 85 T.C.M. at 742.
Moreover, the statute provides that "[i]f a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court." 26 U.S.C. § 6330 (d)(1).
Finally, as the third prerequisite, the Tax Court has jurisdiction if the IRS issued a valid Notice of Determination to proceed with collection. Id.; Raymond, 119 T.C. at 191. In his complaint, Thompson argues that this requisite is lacking. He asserts that the Appeals Office of the IRS did not provide notice and a hearing according to law. He contends he was denied appropriate process because the notice issued to him was not signed by the Secretary of the Treasury and because he was not permitted to tape-record his hearing. However, Thompson admits that the IRS issued a Notice of Determination Letter to him on October 25, 2002, and he attaches a copy of the letter to his complaint.
Despite Thompson's arguments, the final requirement for Tax Court jurisdiction has been met. In Lunsford v. Commissioner, the Tax Court held that, when assessing its jurisdiction, it would not "look behind" a Notice of Determination to discern whether an appropriate hearing was held. 117 T.C. at 164; Stower v. Comm'r 84 T.C. M. (CCH) 13 (2002);Roberts v. Comm'r, 84 T.C.M. (CCH) 270 (2002); Hauck v. Comm'r, T.C.M. (RIA) 2002-184 (2002). Similarly, the Tax Court refuses to recognize frivolous arguments regarding the proper signatory to a Notice of Determination. Nestor v. Comm'r, 118 T.C. 162, 165 (2002); Crow v. Comm'r, 83 T.C.M. (CCH) 1853 (2002); see also Cram v. Comm'r, 737 F.2d 1417 (5th Cir. 1984) (holding "we perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit"). As long as a Notice of Determination has been issued to the taxpayer, the Tax Court has jurisdiction. Lunsford, 117 T.C. at 164. In the case sub judice, there is no dispute that Thompson received a Determination Letter from the IRS shortly after October 25, 2002. Because Thompson admits to receiving this letter, the three requirements for Tax Court jurisdiction have been met, and thus, there is no subject matter jurisdiction in this court 26 U.S.C. § 6330 (d)(1).
Summary
Accordingly, the United States of America's motion to dismiss for lack of subject matter jurisdiction [Doc. No. 2-1] is GRANTED. This action is hereby DISMISSED. Plaintiff Kevin Thompson has thirty (30) days from the issuance of this order to file an appeal with the United States Tax Court. 26 U.S.C. § 6330 (d)(1).