Opinion
Case No. 4:03CV00035
March 3, 2004
MEMORANDUM OPINION
Before me is Respondent United States' Motion to Dismiss [No. 3-1]. The parties have fully briefed the issues and oral argument was held on February 10, 2004. The motion is therefore ripe for decision. For the reasons below, I hereby GRANT the United States' Motion to Dismiss and DISMISS the petitioners' Petition to Quash.
STATEMENT OF FACTS
In connection with an investigation into the tax liabilities of Thomas Tilley and Ms Tilley (collectively, "the Tilleys" or "the petitioners"), the IRS issued administrative summonses requesting the Mortgage Company of Virginia to produce the petitioners' 2000 and 2001 financial records. On March 21, 2003, the IRS mailed copies of the summonses to the Tilleys and on April 14, 2003, the petitioners moved to quash the summonses. The United States filed this Motion to Dismiss on October 9, 2003.
DISCUSSION
In support of its Motion to Dismiss, the United States argues that the Tilleys' Petition to Quash is time-barred because they failed to file the petition within the requisite statutory period. See I.R.C. § 7609(b)(2)(A). In opposition, the Tilleys contend that the petition was timely filed because "[t]imely mailing is timely filing under the Federal Rules of Civil Procedure." Pet. Resp. in Opp. at 1. The petitioners offer no legal support for their assertion and I do not find their argument persuasive.
The Internal Revenue Code provides a clear statutory period within which an individual may institute a proceeding to quash an ERS summons. Title 26, United States Code, Section 7609(b)(2)(A) provides, in relevant part, that:
Notwithstanding any other law or rule of law, any person who is entitled to notice of a summons under subsection (a) shall have the right to begin a proceeding to quash such summons not later than the 20th day after the day such notice is given in the manner provided in subsection (a)(2). . . .Id. (Emphasis added.) According to subsection (a)(2), notice is sufficient "if, on or before the third day, such notice is serviced in the manner provided in section 7603 (relating to service of summons) upon the person entitled to notice, or is mailed by certified or registered mail to the last known address of such person, or, in the absence of a last known address, is left with the person summoned." 26 U.S.C. § 7609 (a)(2). Although the Fourth Circuit has not addressed when "notice is given," our sister circuits have held that "notice is given" upon the date it is mailed. See Clay v. United States, 199 F.3d 876, 879 (6th Cir. 1999) (dismissing petition to quash because it was filed twenty-two days after petitioner received notice of the summons). See also Faber v. United States, 921 F.2d 1118, 1119 (10th Cir. 1990) ("[M]otions to quash must be filed within twenty days from the date the notice given. Notice is given on the date it is mailed.").
Here, the United States gave sufficient notice of the summonses to the Tilleys when it mailed the summonses on March 21, 2003, Applying the plain language of the statute, the Tilleys had twenty (20) days-or until April 10, 2003-after the United States gave notice to file their petition to quash. Although the Tilleys mailed the petition on April 9, 2003, it was not filed with this Court until April 14, 2003-four days after the statutory period expired. Accordingly, the Tilleys' Petition to Quash is untimely and not properly before me.
CONCLUSION
Because I find that Petitioners' petition is untimely under Section 7606(b)(2)(A), I decline to address the United States' remaining arguments in favor of dismissal. The United States Motion to Dismiss is hereby GRANTED and the Tilleys' Petition to Quash is DISMISSED.
The Clerk is directed to send a copy of this Memorandum Opinion and the accompanying Order to all pro se litigants and counsel of record.