Opinion
CIVIL ACTION NO. H-00-4426
August 28, 2001
MEMORANDUM AND OPINION
Plaintiff, John Parks Trowbridge, sues to obtain a writ of mandamus against the Internal Revenue Service and its District Director for the Houston office. Trowbndge asks this court to issue a writ of mandamus ordering the IRS to issue a "determination letter" on Trowbridge's tax status. The government has moved to dismiss. Trowbridge has responded to the government's motion. Based on the pleadings, the motion and response, the parties' submissions, and the applicable law, this court GRANTS the government's motion to dismiss, for the reasons set out below.
I. Background
On June 10, 1999, Trowbridge sent a letter to the IRS District Director for the Houston area, requesting assistance in determining his tax status. In this letter, Trowbridge asked the agency to issue him a "determination letter" under 26 C.F.R. § § 601.201(a)(1) and (3). Ten days later, having received no response, Trowbridge sent a second letter to the District Director, again asking the agency to issue him a determination letter. Approximately two weeks later, on August 2, 1999, Trowbridge received a letter signed by Michael Winters, the IRS District Technical Coordinator. This letter told Trowbridge that the IRS could not issue him a determination letter because 1) Trowbridge had not furnished the agency with a complete statement of the facts pertinent to his financial situation; 2) Trowbridge had not specified the tax regulations or provisions relevant to his request; and 3) Trowbridge had not shown that there was a tax return over which the IRS District Director had jurisdiction. (Docket Entry No. 1, attachment).
Trowbridge sent a number of additional letters to the District Director. Trowbridge asserts that he provided the agency with the information that it contended was missing in his first two letters, but the IRS did not issue Trowbridge a determination letter as requested.
The government contends that Trowbridge cannot allege or show the elements necessary to obtain the relief he seeks in this suit.
II. Analysis
In deciding a Rule 12(b)(6) motion for failure to state a cause of action upon which relief can be granted, the court must accept the factual allegations in the complaint and construe them in the light most favorable to the nonmoving party. Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45.46 (1957). If, assuming the facts alleged in the complaint to be true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations, granting a Rule 12(b)(6) motion is proper. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations. We will thus not accept as true conclusory allegations or unwarranted deductions of fact." Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) (internal citations, quotation marks and ellipses omitted). 28 U.S.C. § 1361 states that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The Fifth Circuit has repeatedly held that a writ of mandamus is an extraordinary remedy that should be issued only in extraordinary circumstances. See United States v. Denson, 603 F.2d 1143, 11146 (5th Cir. 1979). Before a writ of mandamus may properly issue under section 1361, a plaintiff must prove three elements: (1) a clear right to the relief sought, (2) a clear duty by the defendant to do the particular act, and (3) that no other adequate remedy is available. See, e.g., United States v. O'Neil, 767 F.2d 1111 (5th Cir. 1985); Green v. Hedler, 742 F.2d 237, 241 (5th Cir. 1984); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1970); Duron v. Johnson, 2001 WL 376339, *1 (N.D. Tex.).
The government has also moved for dismissal under Rule 12(b)(1). for lack of subject matter jurisdiction. This court decides this case under Rule 12(b)(6).
Mandamus is not available to review discretionary acts of agency officials. Green, 742 F.2d at 241. "Mandamus against a public official will not lie unless the alleged duty to act involves a mandatory or ministerial obligation which is so plainly prescribed as to be free of doubt." First Fed. Sav. Loan Ass'n. v. Baker, 860 F.2d 135, 138 (4th Cir. 1988) (citations omitted).
The necessary elements for a mandamus action have not been satisfied in this case. Trowbridge has failed to demonstrate that he has a "clear right" to the issuance of a determination letter by the IRS, or that the IRS has a "clear duty" to issue such a letter. In his complaint, Trowbridge relies on 26 C.F.R. § 601 .201(a)(1) and (3). Section (a)(1) states, in relevant part, that "[i]t is the practice of the Internal Revenue Service to answer inquiries of individuals and organizations, whenever appropriate in the interest of sound tax administration, as to their status for tax purposes and as to the tax effects of their acts or transactions." 26 C.F.R. § 601.201 (a)( 1). Section (a)(3) states that "[a] "determination letter' is a written statement issued by a district director in response to a written inquiry by an individual or an organization that applies to the particular facts involved, the principles and precedents previously announced by the National Office. A determination letter is issued only where a determination can be made on the basis of clearly established rules as set forth in the statute, Treasury decision, or regulation, or by a ruling, opinion, or court decision published in the Internal Revenue Bulletin." 26 C.F.R. § 601.201 (a)(3). The Internal Revenue Service Manual, section 1218P-(ll)-23, contains similar language: "Rulings and determination letters are issued to individuals and organizations upon written requests, whenever appropriate in the interest of sound tax administration, as to their status for tax purposes and as to the tax effect of their acts or transactions, prior to their filing of returns or reports as required by the revenue laws."
The IRS regulations on which Trowbridge relies make it clear that the issuance of a determination letter is discretionary, not mandatory. The IRS may issue a determination letter when it is "appropriate in the interest of wise and sound tax administration." The regulations do not create any absolute right to the issuance of a determination letter. Nor do the regulations create a ministerial obligation to issue a determination letter, "so plainly prescribed as to be free of doubt." See Lloyd v. Internal Revenue Service, 1999 WL 691881 (M.D.N.C.) (reaching identical conclusion).
In this case, the IRS responded to Trowbridge's initial letter and explained why it was not issuing a determination letter. Even if Trowbridge later provided the additional information described in the agency's response, the IRS had no mandatory or ministerial obligation to issue a determination letter, and Trowbridge had no absolute right to receive such a letter.
Finally, Trowbridge has not demonstrated that he lacks other remedies for his questions concerning his tax status. As the court in Lloyd explained:
If [plaintiff] fails to pay income tax and is issued a deficiency notice by the IRS under 26 U.S.C. § 6212, she has ninety days after the notice is mailed to "file a petition with the Tax Court for a redetermination of the deficiency." 26 U.S.C. § 6213. If she pays the income tax, she may file a claim for refund with the IRS. If her claim is unsuccessful, she may file a civil action in court. See 26 U.S.C. § 7422. "Under ordinary circumstances, the availability of a refund suit . . . negate[s] any claim of irreparable injury." (quoting Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503, 510 (4th Cir. 1999)).
The prerequisites for a mandamus action have not been satisfied in this case. Trowbridge has failed to state a claim for which relief can be granted. Trowbridge has not shown that he could amend to plead facts that would entitle him to the relief he seeks. Dismissal is proper.
III. Conclusion
The govermnent's motion to dismiss is GRANTED. This case will be dismissed by separate order.