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Lamar Ellis v. Commissioner of Internal


March 22, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting Respondent's Motion to Dismiss Petition

Petitioner Lamar Ellis seeks to quash an IRS summons issued to the Custodian of Records of GODADDY.COM, Inc. The government has filed a motion to dismiss the petition for lack of subject matter jurisdiction. Petitioner did not file an opposition to the motion.*fn1 The Court previously found the motion appropriate for submission on the papers and without oral argument. The government's motion to dismiss is GRANTED.


The government moves to dismiss the petition under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction.

1. Revenue Agent Jonathan Andrews

The doctrine of sovereign immunity bars actions against federal officers in their official capacity. In such cases, the proper defendant, if any, is the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (a suit against IRS employees in their official capacity is essentially a suit aginst the United States). The only relief sought by Petitioner is to quash the summons issued by Revenue Agent Andrews in accordance with 26 U.S.C. §§ 7602 and 7603. Such claim against Revenue Agent Andrews is barred by sovereign immunity. Gilbert, 756 F.2d at 1459.

2. Suit Against the United States

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). The only statute providing the court with jurisdiction to quash an IRS summons is 26 U.S.C. § 7609(b). Section 7609(b), therefore, is the exclusive method by which a taxpayer can challenge a summons issued by the IRS. Ponsford v. United States, 771 F.2d 1305, 1309 (9th Cir. 1985). 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, 771 F.2d at 1309; Clay v. United States, 199 F.3d 876, 879 (6th Cir. 1999); Faber v. United States, 921 F.2d 1118, 1119 (10th Cir. 1990). The 20-day time period under § 7609(b)(2)(A) begins to run 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); 26 C.F.R. § 301.7609-4(b)(2) (requiring that proceeding to quash a summons be instituted "not later than the 20th day following the day the notice of the summons was served on or mailed to such person"). 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." This language evidences an intent to relieve the government of the obligation to provide actual notice to the taxpayer. Berman, 264 F.3d at 19.

Here, Petitioner filed his petition to quash on October 29, 2010, 29 days after the government sent notice of the summons to him by certified mail on September 30, 2010. Thus, the petition is untimely and the Court lacks jurisdiction.*fn2


For the reasons explained herein, the government's motion to dismiss is GRANTED. The petition to quash is dismissed.


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