United States District Court, S.D. California
November 9, 2005.
CAROL B. MANN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS [DOC NO. 4]
The Internal Revenue Service ("IRS") has issued a summons to
the Rancho Santa Fe National Bank ("Rancho Santa Fe") in
Escondido, California, for financial records related to
Petitioner Carol B. Mann for the years 2002 and 2003. On July 18,
2005, Ms. Mann filed a petition to quash the IRS summons, arguing
that she never received notice of the third-party summons as
required by 26 U.S.C. § 7609(a)(1). Ms. Mann also argues that the
IRS summons exceeds administrative authority because the IRS
seeks the information in support of a civil penalty proceeding or
The government now moves to dismiss Ms. Mann's petition,
arguing that the petition was filed beyond the 20-day
jurisdictional time period set forth in
26 U.S.C. § 7609(b)(2)(A). Ms. Mann has filed an opposition, and the
government has filed a reply. This motion is appropriate for
submission on the papers and without oral argument pursuant to
Local Rule 7.1(d)(1), and the November 7, 2005 hearing is
VACATED. For the reasons explained below, the government's motion
to dismiss is GRANTED and this petition to quash is DISMISSED. Background
Revenue Agent Yvonne Soto-Gasso is conducting an examination of
the income tax liabilities of Petitioner Carol B. Mann for the
years 2001 through 2003. [Declaration of Yvonne Soto-Gasso in
support of motion to dismiss ("Gasso Decl."), at ¶ 2.] In
furtherance of that examination, the IRS issued a summons to
Rancho Santa Fe for financial records relating to Ms. Mann for
the years 2002 and 2003. [Gasso Decl., ¶ 3.] In particular, the
summons requests documents pertaining to bank accounts, loans,
and credit/debit/charge cards of Ms. Mann. [Id.]
On June 9, 2005, Revenue Agent Yvonne Soto-Gasso directed that
an attested copy of the summons be sent to Rancho Santa Fe as a
third-party recordkeeper, by certified mail. On the same date,
Revenue Agent Gasso directed that a copy of the summons be
provided to Ms. Mann by certified mail to her last known address.
[Gasso Decl., ¶ 5-6.] The summons and notice of summons were both
sent by certified mail on June 14, 2005. [Id., Exhibits 2 and
3.] The United States Postal Service attempted delivery to Ms.
Mann at her last known address as indicated on the IRS envelope
on June 15, 20, and 30, 2005. [Gasso Decl., ¶ 6 and Exhibit 3.]
The envelope was subsequently returned to the IRS as unclaimed.
On July 19, 2005, Ms. Mann filed this petition to quash the IRS
summons issued to Rancho Santa Fe. [Docket No. 1.] On the same
date, Ms. Mann sent a copy of the petition, by certified mail, to
the United States Attorney General, the United States Attorney
for the Southern District of California, the IRS, and Rancho
Santa Fe. [Declaration of Daniel J. Treuden in support of
opposition to motion to dismiss ("Treuden Decl."), ¶ 4 and
Exhibit B.] On September 28, 2005, the government filed the
current motion to dismiss the petition.
The government moves to dismiss the petition under
Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction.*fn1 The United States
is immune from suit unless there is a valid waiver of sovereign
immunity. Valdez v. United States, 56 F.3d 1177, 1179 (9th
Cir. 1995). Section 7609(b) is the exclusive method by which a taxpayer can
challenge a summons issued by the IRS to a third-party
recordkeeper. The procedures for filing a petition to quash are
set forth in § 7609(b) as follows:
(A) In general. 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). In
any such proceeding, the Secretary may seek to compel
compliance with the summons.
Pursuant to subsection (b)(2)(A), the petition to quash must be
filed within 20 days after notice of the summons is given to the
taxpayer. This 20-day period is jurisdictional, and the court
must dismiss a petition not filed within that time period.
Ponsford v. United States, 771 F.2d 1305
, 1309 (9th Cir.
1985); Clay v. United States, 199 F.3d 876
, 879 (6th Cir.
1999); Faber v. United States, 921 F.2d 1118
, 1119 (10th
Cir. 1990). Ms. Mann filed her petition to quash on July 19,
2005, 35 days after the government sent notice of the summons to
her by certified mail at her last known address on June 14, 2005.
Thus, on its face, the petition appears untimely.
In opposition to the government's motion to dismiss, Ms. Mann
argues that she never received notice of the Rancho Santa Fe
summons such that the time period under § 7609(b)(2)(A) never
began to run.*fn2 The 20-day time period under that
subsection begins to run, however, on the date that notice of the
summons is mailed to the taxpayer, not the date on which it is
received. Berman v. United States, 264 F.3d 16, 18-19 (1st
Cir. 2001); Clay, 199 F.3d at 878; Stringer v. United States,
776 F.2d 274, 275-76 (11th Cir. 1985). Section 7609(a)(2)
provides that notice given to a taxpayer is "sufficient" if it
"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." That subsection
further provides that notice is "sufficient" upon such mailing
"even if such person or fiduciary is then deceased, under a legal
disability, or no longer in existence." This language evidences
an obvious intent to relieve the government of the obligation to
provide actual notice to the taxpayer. Berman, 264 F.3d at 19. Ms. Mann does not argue that the notice was mailed other than
to her last known address. Upon review, the Court notes that the
government sent the notice of summons to Ms. Mann by certified
mail at the same address it used in May of 2005 to notify Ms.
Mann of its examination of her tax liability. [Petition to Quash,
Exhibits B and C.] Therefore, the 20-day time period within which
Ms. Mann could have filed a petition to quash under § 7609 began
to run on the date the IRS sent the notice to her by certified
mail, on June 14, 2005. Her petition to quash, filed 35 days
later on July 19, 2005, was untimely. There has been no waiver of
sovereign immunity, and the petition to quash must be
For the reasons set forth herein, the government's motion to
dismiss [Doc. No. 4] is GRANTED and the petition to quash is
hereby DISMISSED with prejudice, terminating this case.
IT IS SO ORDERED.
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