IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
September 28, 2012
MARK ANDRES GREEN, PETITIONER,
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Rufe, J.
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.