7429, S. Rep. No. 94-938, 94th Cong., 2d Sess. 359 (1976), which indicates that the aforementioned procedures "were to be utilized to achieve maximum compliance with the internal revenue laws rather than to attempt to disrupt the distribution of narcotics." Id. at 362. Because the record shows that Freistak had already been arrested before the IRS acted in the present case, we find that the emphasis of the IRS was properly on tax liability rather than interference with drug trafficking.
Additionally, the taxpayer/appellant in Nichols requested administrative review under 26 U.S.C. § 7429(a) (2), and "since the administrative process was not resolved, appellant filed a complaint in the district court pursuant to 26 U.S.C. § 7429(b)." Id. at 830. We read this to show what Freistak was required to do in the current matter, i.e., when the administrative process had resulted in no decision on his protest and the forty-sixth day following the submission of his protest arrived, he should have preserved his right to judicial review. Freistak's protest letter indicated that he was not incarcerated and his trial was not held until July. Therefore, we can perceive no reason why Freistak could not have submitted his petition on May 3, as required by the statute. Moreover, Freistak was not attempting to proceed pro se on the tax matter but instead had retained counsel. Certainly his attorney had both the duty and the ability to ferret out the meaning of the statute so that Freistak was fully protected.
Freistak has argued that the language of the March 3 letter he received from the IRS was misleading. Assuming that it was, the case of Zakem v. United States 78-2 USTC P 9584 (W.D. Wis. 1978), speaks to the issue. In that case an administrative decision on a taxpayer's § 7429 protest had been made, and the taxpayer filed his petition within thirty days of that decision. Nevertheless, the district court concluded that it did not have jurisdiction since the civil action was filed beyond the forty-six day statutory deadline, i.e., forty-six days after submission of the protest. Moreover, the court concluded that even though a letter from the IRS erroneously advised the taxpayer that he could file suit within thirty days after the administrative decision, that the statutory time limit was jurisdictional and not waivable. Accordingly, the conduct of the IRS official could not estop the government from raising the issue of subject matter jurisdiction. We find the rationale of Zakem persuasive and will follow it.
Contrary to Freistak's position, the controlling time periods are completely parallel to those in the present matter. In Zakem, the protest was made on March 17, 1978, and the court determined that the last day to seek judicial review was May 2. The administrative decision that occurred on April 12 did not extend the time, and plaintiff's civil action filed on May 9 was, therefore, untimely.
Nothing in the statute requires that an administrative decision be made before it is incumbent upon one to seek judicial review. The thrust of § 7429 is the provision of a speedy, summary determination on reasonableness of the assessment and appropriateness of the amount assessed. Furthermore, as the Senate Report correctly states,
A determination made under new section 7429 will have no effect upon the determination of the correct tax liability in a subsequent proceeding. The proceeding under the new provision is to be a separate proceeding which is unrelated, substantively and procedurally, to any subsequent proceeding to determine the correct tax liability, either by action for refund in a Federal district court or the Court of Claims or by a proceeding in the Tax Court.