Opinion
CIVIL ACTION NO. 01-0369
December 20, 2001
Complaint for Motion to Compel in the Nature of Mandamus 28 U.S.C. § 1361
MEMORANDUM AND ORDER
Pending is Defendants' Motion to Dismiss (Document No. 11). After having reviewed the motion, response, and applicable law, the Court concludes that the Motion should be granted.
I. Background
This is a suit to obtain a writ of mandamus pursuant to 28 U.S.C. § 1361. Plaintiff John Parks Trowbridge ("Trowbridge") requests that the Court issue a writ of mandamus compelling the Internal Revenue Service ("IRS") and its District Director for the Houston Office, Paul Cordova, to grant Trowbridge's request for an administrative appeal and review conference before the IRS Appeals Office. The Appeals Office is the IRS's dispute resolution forum whose main responsibility includes the administrative determination of liability for income taxes and certain penalties. Trowbridge asserts that he is entitled to an administrative appeal before the Appeals Office as a matter of right, which the government denies.
Trowbridge's complaint arises from an IRS income tax return audit that was conducted by Revenue Agent Michael Reno for the years 1991 through 1996. Pursuant to an IRS directive, Trowbridge had submitted Form 1040 returns for the years being audited. He did so under protest, however, alleging that taxing statutes do not apply to him and that he should not have been directed to submit tax returns for the years under investigation. Accordingly, Trowbridge filed several requests with the IRS, both before and after submitting the Form 1040 returns, demanding that a determination letter be issued specifically identifying the taxing statutes and implementing regulations that apply to Trowbridge and require him to file an income tax return. The determination letter was never issued.
To compel the issuance of the requested determination letter, Trowbridge filed a separate suit in this court to obtain a writ of mandamus against the IRS and its District Director, Paul Cordova. See Trowbride v. Internal Revenue Service, No. H-00-4426, 2001 WL 1172417 (S.D. Tex. Aug. 28, 2001) (Rosenthal, J.). On August 28, 2001, Judge Rosenthal dismissed Trowbridge's suit for failure to state a claim upon which relief can be granted. Id. at *3 The Court held that Trowbridge was not entitled to the relief requested because the issuance of an IRS determination letter is discretionary and not mandatory. Id.
Upon completion of the audit, Agent Reno concluded that Trowbridge had not satisfied his tax liability for the years under investigation. Accordingly, the IRS District Director, Paul Cordova, issued a 30-day letter notice to Trowbridge setting out the proposed additional tax liabilities and notifying Trowbridge of his right to an administrative appeal in the event he disagreed with the IRS's findings.
After receiving the 30-day letter, Trowbridge timely submitted a written protest requesting an administrative appeal. Trowbridge's protest, however, did not challenge the amount of tax liability that had been determined but alleged issues that the IRS regarded as frivolous—such as his claiming not to be subject to tax rates under the Internal Revenue Code and his claim of various Constitutional impediments that the courts have rejected. The IRS does not allow administrative appeals for these kinds of arguments and therefore, the IRS did not respond to Trowbridge's request for an administrative appeal.
The IRS issued to Trowbridge a deficiency letter. Trowbridge's position is that he is entitled as a matter of right to an administrative appeal pursuant to 26 C.F.R. § 601.106 and that the IRS's refusal to grant the requested appeal amounts to a violation of his due process rights under the Fifth Amendment. The government maintains that contrary to Trowbridge's assertions, he is not entitled to an administrative appeal as a matter of right. Accordingly, the government requests that the Court enter an order of dismissal against Trowbridge pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
II. Standard for Evaluating Motions to Dismiss
Rule 12(b)(1) provides for dismissal of a complaint for "lack of jurisdiction over the subject matter." FED. R. CIV. P. 12(b)(1). Rule 12(b)(6) authorizes the dismissal of a claim for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a district court must liberally construe the allegations in the complaint in favor of the plaintiff and must accept as true all well-pleaded facts in the complaint. Lowrey v. Tex. A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Dismissal of a claim is improper "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 78 S.Ct. 99, 102 (1957).
III. Discussion
Under 28 U.S.C. § 1361, a district court has original jurisdiction to issue an order of mandamus compelling an agency of the United States to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. "The legal duty [owed] must be set out in the Constitution or by statute, and its performance must be positively commanded and so plainly prescribed as to be free from doubt." Dunn-McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997) (citing Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992)). To prevail under a writ of mandamus, a plaintiff must be able to establish: (1) that he is clearly entitled to the relief requested; (2) that the defendant has a clear legal duty to provide the relief that the plaintiff is seeking; and (3) that the plaintiff lacks an adequate remedy at law. United States v. O'Neil, 767 F.2d 1111, 1112 (5th Cir. 1985). Whether to grant mandamus is within the discretion of the district court. United States 603 F.2d 1143, 1146 (5th Cir. 1979). Mandamus, however, is not available to review discretionary acts of agency officials, Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984), and where available, is granted only in extraordinary circumstances. Denson, 603 F.2d at 1146.
In the instant case, Trowbridge has failed to establish the elements necessary to seek mandamus relief. First, as the government points out, Trowbridge is not entitled as a matter of right to an administrative appeal before the IRS Appeals Office. Further, the IRS does not have a legal duty to grant him an appeal. Trowbridge relies on 26 C.F.R. § 601.106, .201(a)(1), (a)(3) of the IRS's General Procedural Rules and IRS Publications 1, 5, and 556, to support his position that he is entitled to an IRS administrative appeal as a matter of right and that the IRS has a legal duty to grant his request. These are procedural rules and publications, however, which do not have the force of law. Einhorn v. DeWitt, 618 F.2d 347, 349-50 (5th Cir. 1980); Bothke v. Commissioner, 39 T.C.M. (CCH) 826 (1980); Cataldo v. Commissioner, 60 T.C. 522, 523 (1973)
The procedural rules that Trowbridge cites for support are promulgated under 5 U.S.C. § 301 for the sole purpose of aiding the administration of the IRS's internal affairs. 5 U.S.C. § 301;Einhorn, 618 F.2d at 350; see also Luhring v. Glotzbach, 304 F.2d 560, 563-54 (4th Cir. 1962). They constitute administrative directives rather than mandatory legal duties imposed by law. Bothke, 39 T.C.M. (CCH) 826; Cataldo, 60 T.C. at 523. As administrative directives, they do not create duties to the public. Kirkland Masonr Inc. v Commissioner, 614 F.2d 532, 534 (5th Cir. 1980). Nor do they impose on the IRS a legal duty to grant administrative appeals before the IRS Appeals Office. See Bothke, 39 T.C.M. (CCH) 826. Consequently, this Court has no jurisdiction under § 1361 to command the IRS to give Trowbridge an administrative appeal because there is no legal duty for the IRS to do so. Section 1361 "confers jurisdiction on a district court only when the defendant . . . agency owes a specific duty to the plaintiff." Kirkland Masonry, Inc., 614 F.2d at 534 (emphasis added). Accordingly, the government' s motion will be granted to dismiss this case for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
IV. Order
For the foregoing reasons, it is hereby
ORDERED that Defendants' Motion to Dismiss (Document No. 11) is GRANTED. Plaintiff's suit to Compel in the Nature of Mandamus (Document No. 1) is dismissed with prejudice.
The Clerk will enter this Order and send copies to all counsel of record.