Navarro v. Internal Revenue Service , 378 F. App'x 101 ( 2010 )

09-4001-cv
Navarro v. Internal Revenue Service
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 25th day of May, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROGER J. MINER,
RICHARD C. WESLEY,
Circuit Judges.
__________________________________________
Louis Navarro,
Petitioner-Appellant,
v. 09-4001-cv
Internal Revenue Service,
Respondent-Appellee.
__________________________________________
FOR APPELLANT: Louis Navarro, pro se, Fort Ann, NY.
FOR APPELLEE: John A. DiCicco, Acting Assistant Attorney
General; Michael J. Haungs and John Schumann,
Attorneys, Tax Division, Department of
Justice, Washington, D.C.; Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Albany, NY.
Appeal from two orders of the United States District Court
for the Northern District of New York (Treece, M.J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the magistrate judge’s orders be AFFIRMED.
Appellant Louis Navarro, pro se, appeals the two rulings of
the magistrate judge, one denying Navarro’s motion to quash four
Internal Revenue Service (“IRS”) third-party summonses, the other
denying reconsideration. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the
issues on appeal.
We review de novo the dismissal of a motion to quash an IRS
summons for lack of subject matter jurisdiction. See Upton v.
I.R.S., 104 F.3d 543, 545 (2d Cir. 1997). In general, “[t]he
United States and its agencies enjoy immunity from suit except
insofar as Congress has enacted legislation effecting an
unequivocal waiver,” id., and, relevant to the instant case,
under 26 U.S.C. § 7609, Congress created a discrete and limited
waiver of that immunity solely for the purpose of permitting a
taxpayer to “quash an administrative summons served on a third-
party recordkeeper,” Upton, 104 F.3d at 545 (internal quotations
omitted). However, a taxpayer’s ability to quash a summons--and
thereby overcome sovereign immunity--requires strict compliance
with the applicable statute. Therefore, a taxpayer may bring an
action to quash a third-party summons within twenty days of
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receiving notice thereof, but only if the taxpayer “mail[s] by
registered or certified mail a copy of the petition to the person
summoned and to such office as the Secretary may direct in the
notice.” 26 U.S.C. § 7609(b)(2)(B); see also Upton, 104 F.3d at
546 (describing procedure).
Our review of this record confirms that Navarro failed to
comply with the requirements of § 7609(b)(2)(B), and therefore
did not overcome the presumptive immunity of the United States.
Accordingly, the magistrate judge properly determined that he
lacked subject matter jurisdiction to consider Navarro’s motion
to quash, and, for this reason, did not err by denying Navarro’s
motion for reconsideration. See RJE Corp v. Northville Indus.
Corp., 329 F.3d 310, 316 (2d Cir. 2003) (per curiam) (denial of
motion for reconsideration reviewed for abuse of discretion).
For the foregoing reasons, the orders of the magistrate
judge are hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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