Pflum v. United States

953 F. Supp. 339, 1997 WL 50520
CourtDistrict Court, D. Kansas
DecidedJanuary 31, 1997
DocketNos. 96-4105-SAC, 96-4106-SAC and 96-4113-SAC
StatusPublished

This text of 953 F. Supp. 339 (Pflum v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pflum v. United States, 953 F. Supp. 339, 1997 WL 50520 (D. Kan. 1997).

Opinion

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On May 13, 1996, Revenue Officer Angie Anderson, an employee of the Internal Revenue Service, caused summonses to be issued to three financial institutions1 to aid in the collection of unpaid federal tax liability assessed against David Pflum on April 10, 1990.2 Each summons sought the production of Pflum’s banking records, including loan applications, agreements and financial statements, for the period of January 1, 1988, through May 13,1996.

On May 28, 1996, Pflum filed two separate pleadings titled “Petition to Quash Internal Revenue Service Summons.” On June 21, 1996, Pflum filed a third pleading bearing the same title as the pleadings filed on May 28, 1996. In each of those pleadings Pflum seeks to challenge the United States’ authority to issue third party summons to each of the three financial institutions. In each pleading, Pflum contends that he is not a person liable for or subject to federal income taxes.3 Consequently, the issuance of the summonses are inappropriate and unlawful.

This case comes before the court upon the United States’ “Motion to Dismiss Petitions to Quash Summonses and Supporting Memorandum” (Dk. 6). In that motion the United States argues that based upon 26 U.S.C. § 7609(c)(2)(B)(i), this court lacks subject matter jurisdiction to consider each of Pflum’s petitions. In the alternative, the [340]*340United States contends that Pflum’s petitions otherwise fail on the merits.4

Pflum filed a twenty-one page response to the United States motion. Pflum concedes that 'this court lacks jurisdiction over the summons issued to Wells Fargo Mortgage Loan Center and Home Savings-of America, F.A., as neither of those institutions reside or are found within the jurisdiction of the District of Kansas. See 26 U.S.C. § 7609(h)(1); Fortney v. United States, 59 F.3d 117, 119 (9th Cir.1995). In any event, Pflum contends that the exception in § 7609(c)(2)(B)® does not apply to the summonses issued in these cases. Pflum argues that certain deficiencies in each summons, including lack of prior notice to him, make them unenforceable and warrant the relief he seeks.

In its reply brief, the government contends that Pflum’s contention that the exception embodied in § 7609(c)(2)(B)® does not apply in these cases is unsupported both legally and factually. The government contends that all three of Pflum’s petitions should dismissed with prejudice for lack of subject matter jurisdiction, as the plain language of § 7609(c)(2)(B)® makes it clear that no district court anywhere has jurisdiction to consider Pflum’s petitions.

Analysis

“The United States, as sovereign, is immune from suit unless it consents to be sued.” Tew v. United States, 86 F.3d 1003, 1004 (10th Cir.1996).

Thus, under sovereign immunity principles, the United States may be sued only if and to the extent that it consents. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). “ ‘[T]he terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ ” Id. (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). “Such a waiver of sovereign immunity must be strictly construed in favor of the sovereign and may not be extended beyond the explicit language of the statute.” Fostvedt v. United States, 978 F.2d 1201, 1202 (10th Cir.1992), cert. denied, 507 U.S. 988, 113 S.Ct. 1589, 123 L.Ed.2d 155 (1993).

Kelley v. United States, 69 F.3d 1503, 1507 (10th Cir.1995). ‘When the United States of America is -a defendant in an action by a taxpayer, the taxpayer has the burden of showing an explicit waiver of sovereign immunity as a prerequisite to federal court jurisdiction.” Niewald v. Internal Revenue Service, 73 F.3d 373 (10th Cir.1996) (Table; available on Westlaw at 1996 WL 5551) (citing National Commodity and Barter Ass’n v. Gibbs, 886 F.2d 1240 (10th Cir.1989)).

Although § 7609(b) establishes a procedure for any person “who is entitled to notice” of a third-party summons issued pursuant to § 7609(a) to bring a proceeding to quash such summons, § 7609(c)(2)(B)® creates an exception to this general rule: “A summons shall not be treated as described in this subsection if— ... (B) it is in aid of the collection of — (i) the liability of any person against whom an assessment has been made or judgment rendered.” In Bancsi v. Pennington, 812 F.Supp. 759 (N.D.Ohio 1992), the district court explained:

Generally, § 7609(a) requires the IRS to provide notice to the person whose records have been summoned. However, no notice need be provided if the summons is issued to aid the collection of a tax liability which was previously assessed or adjudged. § 7609(c)(2)(B)(ii). Since the IRS need not provide notice of a summons issued in aid of collection, no person has a right to move to quash such a summons. “Essentially, a District Court lacks jurisdiction to entertain a petition to quash a collection summons.” Church of Human Potential, Inc. v. Vorsky, 636 F.Supp. 93, 94 (D.N.J.1986).

812 F.Supp. at 760. - The legislative history of § 7609(c)(2)(B) clearly supports this analysis:

However, this procedure will not apply in the case of a summons used solely for purposes of collection____ Thus, where the Service has made an assessment or obtained a judgment against a taxpayer and serves a summons on a bank, for [341]*341example, in order to determine whether the taxpayer has an account in that bank, and whether the assets in that account are sufficient to cover the tax liability which has been assessed, the Service is not required, under the committee bill, to give notice to the taxpayer whose account is involved.

H.R.Rep. No. 94-658, at 310 (1976), reprinted in 1976 U.S.C.C.A.N. 2897, 3206.

Each summons issued by the IRS and challenged by Pflum falls squarely within the exception created by § 7609(c)(2)(B)(i), and nothing argued by Pflum- — including his contention that he is not subject to federal income tax — demonstrates otherwise. Each summons represents an attempt to collect on Pflum’s 1989 tax liability. As the government suggests, numerous federal courts have dismissed similar petitions to quash third-party summonses under § 7609(e)(2)(B)(i). See, e.g., Don v. Internal Revenue Service, No. MS 95-4487, 1996 WL 249351, *2 (D.Idaho Feb.

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Related

United States v. Testan
424 U.S. 392 (Supreme Court, 1976)
United States v. Dalm
494 U.S. 596 (Supreme Court, 1990)
Tew v. United States
86 F.3d 1003 (Tenth Circuit, 1996)
Cox v. CIR
99 F.3d 1149 (Tenth Circuit, 1996)
Fostvedt v. United States
978 F.2d 1201 (Tenth Circuit, 1992)
John H. Fortney v. United States
59 F.3d 117 (Ninth Circuit, 1995)
Kersting v. United States
818 F. Supp. 297 (D. Hawaii, 1992)
Church of Human Potential, Inc. v. Vorsky
636 F. Supp. 93 (D. New Jersey, 1986)
Bancsi v. Pennington
812 F. Supp. 759 (N.D. Ohio, 1992)
Commissioner v. Hayes
631 F. Supp. 785 (N.D. California, 1985)
Kelley v. United States
69 F.3d 1503 (Tenth Circuit, 1995)
Lonsdale v. United States
919 F.2d 1440 (Tenth Circuit, 1990)
Wolak v. United States
507 U.S. 988 (Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
953 F. Supp. 339, 1997 WL 50520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pflum-v-united-states-ksd-1997.