United States District Court, E.D. Pennsylvania
May 27, 2004.
MICHAEL FRAGALE, Petitioner,
UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Presently before the Court is Respondent's motion to dismiss the
petition to quash the summons of the Internal Revenue Service for lack of
subject matter jurisdiction. For the reasons set forth below,
Respondent's motion is granted.
On February 13, 2004, the Internal Revenue Service ("IRS") served a
summons on Petitioner's former attorney, Scott G. Mayhart, seeking
records pertaining to Petitioner's financial transactions in connection
with an investigation of Petitioner's federal income tax liability for
the years 2000, 2001, and 2002. (Keiper Decl. ¶¶ 2-3.) On February 17,
2004, Special Agent Joseph C. Keiper sent Petitioner notice of the
service of the summons via certified mail. (Id. ¶ 4.) Special Agent
Keiper subsequently received a completed certified mail receipt signed by
Petitioner and dated February 19, 2004. (Id. ¶ 5.) On March 15, 2004,
Petitioner Michael Fragale brought this action by filing a petition to
quash the summons.
Section 7609(b) of the Internal Revenue Code sets forth the procedural
framework governing enforcement of summonses issued to third-party
recordkeepers, such as banks, securities brokers, and attorneys, and
proceedings to quash such summonses. 26 U.S.C. § 7603(b)(2), 7609(b)
(2004). Pursuant to section 7609(b), the summoned third-party
recordkeeper must comply with the summons unless the taxpayer begins a
proceeding to quash the summons not later than twenty days after receiving notice of the service of the summons. 26 U.S.C. § 7609(b)(2)(A).
A district court for the district within which the summoned third-party
recordkeeper resides or is found has jurisdiction to hear and determine
any proceeding brought under subsection (b)(2). A district court,
however, does not have jurisdiction under subsection (b)(2) if the
procedural prerequisites of this section are not met. Berman v. United
States, 264 F.3d 16, 19 (1st Cir. 2001) (holding court is without
jurisdiction to hear motion to quash under section 7609 if not filed
within twenty days from date that notice is mailed); Faber v. United
States, 921 F.2d 1118, 1119 (10th Cir. 1990) ("[A] petition to quash a
third party summons that is filed more than twenty days after the mailing
of the summons by the IRS must be dismissed for lack of jurisdiction.);
Stringer v. United States, 776 F.2d 274, 275-76 (11th Cir. 1985) (same);
Ponsford v. United States, 771 F.2d 1305, 1309 (9th Cir. 1985) (same);
Sommers v. United States, Civ. A. No. 97-7299, 1998 U.S. Dist. LEXIS
1366, at *7 n.3 (E.D. Pa. Jan. 19, 1998) (characterizing § 7209(b)'s
timely filing requirement as jurisdictional); Grisham v. United States,
578 F. Supp. 73, 74 (S.D.N.Y. 1983) (same); see also Clay v. United
States, 199 F.3d 876, 880 (6th Cir. 1999) (holding twenty-day period for
filing petition to quash is jurisdictional and Federal Rule of Civil
Procedure 6(e) does not operate to provide additional three days for
filing of petition to quash where notice is sent by first class mail).
Thus, failure to file a petition within twenty days from the date of
notice deprives a district court of jurisdiction to decide the petition
In the present case, Special Agent Keiper timely sent notice of the
third-party summons to Petitioner via certified mail on February 17,
2004. 26 U.S.C. § 7609(a). Twenty-seven days later, on March 15,
2004, Petitioner filed his petition to quash. Because the petition is
untimely, this Court is without jurisdiction. Accordingly, Respondent's
motion to dismiss for lack of subject jurisdiction is granted. An
appropriate Order follows. ORDER
AND NOW, this 27th day of May, 2004, upon consideration of
Respondent's Motion to Dismiss Petition to Quash Summons, it is hereby
1. Respondent's Motion to Dismiss Petition to Quash
Summons (Document. No. 4) is GRANTED and the
petition is DISMISSED.
2. The Clerk of Court is directed to close this
case for statistical purposes.
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