Opinion
CIVIL DOCKET NO.: 5:03MC1
October 23, 2003
Memorandum Order
THIS MATTER is before the Court on the United States' Motion To Dismiss, filed June 5, 2003 (Documents # #3-5); and Petitioner's Response, filed June 19, 2003 (Document #7). For the reasons stated herein, the Government's motion to dismiss will begranted.
I. Factual Background
Petitioner Thomas E. Tilley requests an Order quashing summons issued by the Internal Revenue Service to Carolina Farm Credit. (Document #1) The administrative summons, which was issued March 20, 2003, requested that Carolina Farm Credit appear before IRS Agent Marvin Hedgepeth on April 21, 2003, to give testimony and produce financial records concerning accounts and other records of Tilley for the years of 2000 and 2001. (Exhibit A) (Hedgepeth Decl. ¶¶ 2, 4) According to Agent Hedgepeth, the IRS is conducting investigations into the income tax liabilities of Petitioner for this time period. (Hedgepeth Decl. ¶ 2) However, there is no "Justice Department referral" in effect. 26 U.S.C. § 7602(a). (Hedgepeth Decl. ¶ 11) Nor has the Department of Justice made any request for disclosure under 26 U.S.C. § 6103(h)(3)(B) of any return or return information (as those terms are defined in 26 U.S.C. § 6103(b)) relating to Tilley. (Hedgepeth Decl. ¶ 11) In other words, the IRS has not requested that the Department of Justice investigate Petitioner, or vice versa.
Petitioner was served with notice of the summons on March 21, 2003, by certified mail to his last known address. (Hedgepeth Decl. ¶ 6) In conjunction with providing Petitioner notice of the summons, the IRS provided Petitioner with "Form 2039 Part D," which identifies the governing statute, namely, 26 U.S.C. § 7609, and sets forth the procedure and specific instructions for moving to quash. (Sample Form 2039 Part D / Exhibit C) The form expressly states that if the person receiving notice objects to the summons, a petition to quash must be filed "within 20 days from the date of this notice."Id. (emphasis added) It also indicates that the relevant provisions of the Internal Revenue Code accompany the notice,Id. Tilley's "Petition To Quash Summons" was filed with the Court on April 14, 2003.
II. Statute Of Limitations
Petitioner's motion to quash is barred by the 20-day statutory limitations period. Title 26, United States Code, Section 7609(b)(2)(A) provides as follows:
"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) . . ."26 U.S.C. § 7609(b)(2)(A) (emphasis added). Thus, in order to properly calculate the commencement of the 20-day limitations period, the undersigned must determine when "notice is given" under the statute. According to Subsection (a)(2),
"Such notice shall be sufficient if, on or before such third day, such notice is served in the manner provided in section 7603 (relating to service of summons) upon the person entitled to notice, or 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. If such notice is mailed, it shall be sufficient if mailed to the last known address of the person entitled to notice . . ."26 U.S.C. § 7609(a)(2) (emphasis added). While the Fourth Circuit has not had occasion to consider when notice is "given" as opposed to when it is "sufficient," courts addressing this issue conclude they are one in the same. In other words, for purposes of Section 7609(a)(2), "notice is given" upon the date it is mailed. Clay v. United States, 199 F.3d 876, 879 (6th Cir. 1999); Faber v. United States, 921 F.2d 1118, 1119 (10th Cir. 1990); Stringer v. United States, 776 F.2d 274, 275 (11th Cir. 1985); Ponsford v. United States, 771 F.2d 1305, 1309 (9th Cir. 1985). As explained by the Sixth Circuit, the jurisdictional limitation within § 7609 constitutes a conditional waiver of the government's sovereign immunity and, therefore, must be strictly construed, Id. This Court agrees.
In this case, the notice for Tilley was dated March 21, 2003, and sent the same day by certified mail. (Exhibit B) The return receipt indicates that Tilley received the notice the following day, on March 22, 2003.Id. Therefore, any motion to quash should have been filed within twenty (20) days of March 21, 2003 — not the date of receipt — or by April 10, 2003. Petitioner claims that he mailed his petition by certified mail on April 8, 2003. (Tilley Decl. ¶ 2) (Exhibit 3) According to Petitioner, "Timely mailing is timely filing under the Federal Rules of Civil Procedure." (Petitioner's Response at 1.) However, Petitioner fails to identify which federal rule leads him to this conclusion. Petitioner's claim is not supported by the law. While pro se litigants who are incarcerated may benefit from what is commonly known as the 'prisoner mailbox rule,' Tilley, who is not incarcerated, is not entitled to the same benefit. Thompson v. E.I. DuPont de Nemours Co., Inc., 76 F.3d 530,534 (4th Cir. 1996)("[I]n contrast to the incarcerated, pro se litigant, the unincarcerated litigant who decides to rely on the vagaries of the mail must suffer the consequences if the notice of appeal fails to arrive within the applicable time period.") This Court cannot disregard the plain language of the statute. Because Tilley's petition is untimely, it is not properly before the Court.
In this calculation, the Court does not include an additional three (3) days for mailing under FED. R. Civ. P. 6(e) since Tilley is a noticee — not a "party" for purposes of Rule 6(e). Clay, 199 F.3d at 880. The Court also notes that even if the undersigned considered the date of actual notice, March 22, 2003, Tilley's motion to quash would still be barred.
The prisoner mailbox rule, enunciated by the Supreme Court inHouston v. Lack in the context of a habeas corpus appeal, rests on the notion that prisoners, unlike other litigants, are unable to take the steps other litigants can take (i.e., phoning the courthouse and / or delivering their documents to the court if the mail goes awry) to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the applicable deadline. Houston v. Lack, 487 U.S. 266, 270-71 (1988). Other courts have declined to extend this doctrine in other contexts. See generally, Jackson v. Nicoletti, 875 F. Supp. 1107 (E.D.Pa 1994) (refusing to extend prisoner mailbox rule tostatutory limitations period for filing of § 1983 claim); Nigro v. Sullivan, 40 F.3d 990 (9th Cir. 1994) (refusing to extend mailbox rule to appeal of administrative decision which rendered prisoner in procedural default for purposes of habeas petition).
III. Conclusion Order
Moreover, the Court finds Petitioner's legal arguments completely without merit. While a complete analysis is not required given the Court's ruling, Petitioner fails to demonstrate that the IRS lacks a proper purpose for issuing the summons to Carolina Farm Credit. Likewise, Petitioner fails to establish that the Government's actions do not comport with the statutory procedures. For example, Furthermore, Section 7609(a)(2) makes clear that service can be accomplished by either personal service on the noticee or by mailing notice to the last known address, as was done in the instant case. The Court rejects Tilley's challenge regarding the sufficiency of notice. Finally, the Court does not find that the summons is overbroad in anyway. Dismissal is proper on the merits as well.
The Court rejects Petitioner's argument to the contrary. Asserting that the statute governing issuance of summons to third-party recordkeepers, § 7603 (which also no longer requires personal service), should be incorporated into § 7609(a)(2), Petitioner claims that he was entitled to personal service, as well as an attested copy of the notice.
IT IS HEREBY ORDERED that the Petition To Quash is DENIED and this miscellaneous civil action is DISMISSED due to lack of subject matter jurisdiction.