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Mark andres Green v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 28, 2012

MARK ANDRES GREEN, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.

The opinion of the court was delivered by: Rufe, J.

MISCELLANEOUS CASE

MEMORANDUM OPINION

The United States has filed a motion to dismiss Petitioner's "Complaint/Petition to Quash" ("Petition"). Because the Court lacks subject matter jurisdiction over the Petition, the motion will be granted.

I. B ACKGROUND

Petitioner Mark Andres Green, proceeding pro se, filed the Petition, seeking to quash a third-party summons issued by the Internal Revenue Service ("IRS") to Wells Fargo Home Mortgage ("Wells Fargo"). The summons sought information related to any mortgage held by Wells Fargo on property owned by Mark and Jana Green. *fn1 It appears from the record that a copy of the summons was forwarded to Petitioner on October 13, 2011, by "Wachovia Mortgage, a division of Wells Fargo Bank, N.A." *fn2

The United States moves to dismiss the Petition to Quash under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

II. S TANDARD OF R REVIEW

Where a party asserts that sovereign immunity deprives a federal court of subject matter jurisdiction, "the motion may properly be considered a motion to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)." *fn3 "At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" *fn4 Where a defendant does not challenge the truthfulness of the facts material to a jurisdictional analysis, a court evaluates the motion as a facial attack, accepting the factual allegations in the complaint, along with any attachments, as true to determine whether the facts as alleged provide a basis for the court's subject matter jurisdiction. *fn5 The summons is attached to the Petition and may be considered.

III. D ISCUSSION

Respondent argues that Petitioner lacks standing to file a motion to quash. Specifically, it argues that because Petitioner was not entitled to notice of the summons, the United States has not waived its sovereign immunity to suit.

The IRS has the power to issue a summons to "any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax . . .." *fn6

The Internal Revenue Code sets forth the circumstances under which notice must be provided to a person when a summons requires a third party to give testimony or produce records relating to that person. *fn7 If a person is entitled to notice, the statute "provides certain limited circumstances in which [this] person may intervene in a third-party IRS summons and file a motion to quash" and waives the sovereign immunity of the United States for this purpose. *fn8

Thus, if Petitioner is not entitled to notice, he has no standing to bring a proceeding to quash the summons, sovereign immunity is not waived, and, consequently, the Court lacks jurisdiction to entertain the petition. *fn9

The question, therefore, is whether the IRS was required to give notice to Petitioner. The Court finds it was not. The summons states that it "is issued in aid of collection of a tax assessment." *fn10 Under the Internal Revenue Code, a summons "issued in the aid of collection of [] an assessment made or judgment rendered against the person with respect to whose liability the summons is issued" is exempt from the requirement of notice and the right to intervene. *fn11

Petitioner does not dispute that the summons was issued in aid of collection of an assessment, but instead argues that the summons is "void as a matter of law" *fn12 and "invalid" because it was issued and signed by Revenue Officer Fred Rice rather than the Commissioner of the IRS. *fn13 Petitioner also appears to dispute the underlying tax liability itself and Petitioner's obligation to pay taxes. *fn14 Because the United States has not waived its sovereign immunity in this instance, the Court lacks jurisdiction to resolve these disputes and the Petition will be dismissed. *fn15

IV. C ONCLUSION

For the reasons stated above, the Court lacks jurisdiction to consider the Petition, which will be dismissed. An appropriate order will be entered.


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