Franklin v. United States , 581 F. Supp. 38 ( 1984 )

581 F. Supp. 38 (1984)

David W. FRANKLIN, Petitioner,
v.
UNITED STATES of America, Respondent.

Civ. A. No. 83CV-6445-AA.

United States District Court, E.D. Michigan, S.D.

March 16, 1984.

David W. Franklin, pro se.

Ross I. MacKenzie, Asst. U.S. Atty., Detroit, Mich., Richard M. Prendergast, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

ORDER

JOINER, District Judge.

This matter is before the Court on the respondent's motion to dismiss the petition to quash an IRS summons. The motion has been considered on the papers filed and without oral argument pursuant to Fed.R. Civ.P. 78 and Local Rule 17(j).

Congress recently changed the procedures for challenging Internal Revenue summons issued to statutory third-party recordkeepers when it enacted the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Under the new procedure, in order to challenge an IRS summons by a petition to quash, the taxpayer must file an action within 20 days of receiving notice of the summons.

(b) Right to Intervene; right to proceedings to quash—

. . . . .

(2) Proceeding to quash.—

(A) In general. 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).

The taxpayer was entitled to notice under subsection (a) and notice was mailed on October 7, 1983. The statute provides for notice by certified mail. That method of service was used in the present case. § 7609(a)(2) provides that notice is sufficient if it "is mailed". "Notice is given" as required by (b)(2) when it "is mailed".

The taxpayer filed the petition to quash on November 10, 1983. This is more than 20 days after October 7. The petition is untimely and consequently this Court lacks jurisdiction to provide the relief requested.

THEREFORE, the respondent's motion is GRANTED.

SO ORDERED.