LaBrecque v. USA
ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 13 is AFFIRMED AND ADOPTED. In accordance therewith, the United States' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) 5 is GRANTED, and the Motion for Hearing 17 is DENIED. ORDERED that this matter is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction by Chief Judge Wiley Y. Daniel on 12/17/12.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.
THOMAS ALBERT LaBRECQUE,
UNITED STATES OF AMERICA,
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES’ MAGISTRATE JUDGE
INTRODUCTION AND BACKGROUND
THIS MATTER is before the Court on the United States’ Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(1) (ECF No. 5). The matter was referred to Magistrate
Judge Shaffer for a Recommendation by Order of Reference dated May 25, 2012. On
October 3, 2012, Magistrate Judge Boland issued a Recommendation (ECF No. 13),
which is incorporated herein by reference. See 28 U.S.C. ' 636(b)(1), Fed. R. Civ. P.
72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Shaffer recommends therein that the
United States’ motion to dismiss be granted. Magistrate Judge Shaffer advised the
parties that they had fourteen (14) days to serve and file written, specific objections to the
Recommendation. Petitioner filed objections to the Recommendation which
necessitates a de novo determination as to those specified proposed findings or
recommendations to which objection is made since the nature of the matter is dispositive.
Fed. R. Civ. P. 72(b); 28 U.S.C. ' 636(b)(1).
As set forth more fully in Magistrate Judge Shaffer’s Recommendation, pro se
Petitioner Thomas LaBrecque initiated this action seeking to quash an IRS summons
issued to US Bank as part of ongoing activities by the IRS to collect on his alleged tax
liabilities. Petitioner premises his Petition to Quash Summons on 26 U.S.C. § 7609,
which describes special procedures for challenging third-party summonses by the IRS,
26 U.S.C. § 7602 and other statutory provisions inapplicable here.
In response, the United States contends that Petitioner lacks standing to proceed
under 26 U.S.C. § 7609(b) and moves to dismiss for lack of subject matter jurisdiction. In
his Recommendation, Magistrate Judge Shaffer agreed and recommended that the
United States’ motion to dismiss be granted.
In his Recommendation, Magistrate Judge Shaffer correctly noted that the United
States relies on Fed. R. Civ. P. 12(b)(1) as grounds for dismissal of this action for lack of
subject matter jurisdiction.
As courts of limited jurisdiction, federal courts may only adjudicate cases that the
Constitution and Congress have granted them authority to hear. Todd Holding Co., Inc. v.
Super Value Stores, Inc., 744 F. Supp. 1025, 1026 (D. Colo. 1990). Thus, the court must
satisfy itself of subject matter jurisdiction before proceeding to the merits of a claim. Gold
v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1309-10 (10th Cir.
1998). "[T]he burden is on the party claiming jurisdiction to show it by a preponderance of
the evidence." Celli v. Shoell, 40 F.3d 324, 327 (10th Cir.1994). "Mere conclusory
allegations of jurisdiction are not enough." United States, ex rel. Hafter v. Spectrum
Emergency Care, Inc., 190 F.3d 1196, 1160 (10th Cir. 1999). Where a party moves to
dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the attack
can be either a facial attack to the allegations of the complaint or a factual attack. Osborn
v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Where there is a facial attack, the
court must look to the factual allegations of the Complaint. Groundhog v. Keller, 442 F.2d
674, 677 (10th Cir. 1971). In a factual attack, the court may consider matters outside the
pleadings, and the motion is not converted to a motion for summary judgment. Id.; Cizek
v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992).
In his objection, Petitioner cites numerous federal tax statutes, arguing that the
United States failed to comply with proscribed tax assessment procedures. Petitioner
also claims that IRS personnel lacked authority to issue and serve the IRS Summons.
As set forth in more detail in the Recommendation, Petitioner mistakenly argues that
26 U.S.C. § 7608 confers the only authority for IRS personnel to serve summonses.
Based on these objections, Petitioner seems to contend that the tax assessments issued
against him are legally deficient, thus, he should have been given notice of the Summons
and is entitled to file the instant Petition to Quash. I overrule Petitioner’s objections.
Under 26 U.S.C. § 7609(b), the rights to intervene and challenge a third-party IRS
summons are to be narrowly construed. The statute provides that a person has the right
to bring a proceeding to quash a summons only if he or she is entitled to notice.
§ 7609(b). Here, however, since the Summons was issued as part of the collection
process for assessed income tax liabilities, Petitioner is not entitled to notice of the
Summons pursuant to § 7602(c)(2).1 26 U.S.C. § 7609(c)(2); see Davidson v. United
States, 149 F.3d 1190, at *1 (10th Cir. 1998) (“if a summons is issued in aid of collection,
no notice is required, and the district court does not have subject matter jurisdiction over a
petition to quash the summons.”).
Having reviewed the Recommendation, I am satisfied that there is no clear error on
the face of the record. I find that Magistrate Judge Shaffer’s Recommendation is
thorough, well reasoned and sound. I agree with Magistrate Judge Shaffer that the
United States’ motion to dismiss should be granted for the reasons stated in both the
Recommendation and this Order. Finally, I see no need for oral argument on this issue
and deny Petitioner’s request for a hearing.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF No.
13) is AFFIRMED AND ADOPTED. In accordance therewith, the United States’ Motion
to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) (ECF No. 5) is GRANTED, and the Motion
for Hearing (ECF No. 17) is DENIED. It is
FURTHER ORDERED that this matter is DISMISSED WITHOUT PREJUDICE for
lack of subject matter jurisdiction.
As Magistrate Judge Schaffer correctly found in his Recommendation, § 7602 gave the IRS officers the
legal authority to issue the Summons. Likewise, §7603 gave the IRS officers the authority to serve the
Dated: December 17, 2012
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge
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