Gloria J. Concoby, Robert H. Concoby v. Commissioner of Internal Revenue , 767 F.2d 919 ( 1985 )

767 F.2d 919

Unpublished Disposition
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GLORIA J. CONCOBY, ET AL., PLAINTIFFS, ROBERT H. CONCOBY,
PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF INTERNAL REVENUE, ET AL., DEFENDANTS-APPELLEES.

NO. 84-3950

United States Court of Appeals, Sixth Circuit.

6/7/85

N.D.Ohio

VACATED AND REMANDED

ORDER

BEFORE: CONTIE and MILBURN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

1

This matter is before the Court upon the appellant's motion to proceed in forma pauperis. The appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record, the appellant's motion and informal brief, and the response thereto, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

In review of the record, it appears the appellant is unable to pay the costs of this appeal. Consequently, the motion to proceed in forma pauperis is granted. 28 U.S.C. Section 1915.

3

This action stems from the attempts by the Internal Revenue Service to collect taxes due on appellant's wages for 1981 and 1982. The I.R.S. has levied upon the appellant's wages to collect the taxes. The appellant's complaint sets forth the contention that the I.R.S. failed to give adequate notice of the tax deficiency as provided in 26 U.S.C. Section 6212. The district court, however, misconstrued the complaint as an action for the refund of taxes and dismissed the claim pursuant to 28 U.S.C. Section 1915(d) because the appellant had not paid the disputed tax prior to filing the action. See Flora v. United States, 357 U.S. 63 (1958).

4

The appellant's action is proper pursuant to 26 U.S.C. Section 6213(a). The claim seeks to enjoin collection of the tax because of an insufficient notice of deficiency.

5

Accordingly, it is ORDERED that the motion to proceed in forma pauperis is granted. The judgment of the district court is vacated and the case is remanded pursuant to Rule 9(d)(4), Rules of the Sixth Circuit.