United States of America v. Hattrup

Filing 18

MEMORANDUM AND ORDER dismissing 13 Motion to Reopen Redemption Period. Signed by District Judge Carlos Murguia on 8/3/2017. Mailed to pro se party Scott Gregory Hattrup by regular mail. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

In the Matter of the
Tax Indebtedness of
SCOTT GREGORY HATTRUP

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Case No. 15-mc-00219-CM

MEMORANDUM AND ORDER
This matter comes before the court upon respondent Scott Gregory Hattrup’s Motion to Reopen
Redemption Period (Doc. 13) and petitioner United States of America’s Motion to Strike respondent’s
motion (Doc. 14).
I.

Factual Background
Petitioner originally filed this action to collect unpaid taxes by levying on pro se respondent

Scott Hattrup’s house. Because respondent’s house was his principal residence, petitioner sought
judicial approval of the levy under 26 U.S.C. § 6334(e)(1)(A). Out of an abundance of caution, the
court held a hearing on respondent’s objection because he proceeds pro se, although the court now
notes that respondent did practice law for a period of time. After a hearing, on February 10, 2016, the
court issued an order granting the levy. Respondent did not appeal and the court terminated the case.
On June 13, 2017, respondent filed his current motion, claiming that petitioner auctioned his
house on October 6, 2016, but never notified him of the sale. Respondent first learned about it from
the purchaser’s attorney on May 17, 2017, well beyond the 180-day statutory redemption period.
Respondent argues petitioner’s failure to notify him deprived him of due process by preventing his
timely redemption of the property.
Petitioner then filed its motion to strike respondent’s motion. Petitioner argues that the court
should dismiss respondent’s motion under Federal Rule of Civil Procedure 12(b)(1) and (2) because
respondent failed to establish the court’s subject-matter and personal jurisdiction. Alternatively,

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petitioner argues that the court should strike the motion under Rule 12(f) because respondent’s motion
can be construed as a pleading that is immaterial to the original February 2016 case. Respondent’s
response attempts to meet the 12(b)(1) and 12(b)(2) requirements by listing statutes giving the court
jurisdiction. Respondent also argues that the issues and parties involved in his motion are the same as
those in the original case, and because reviewing his motion now would promote judicial efficiency,
the court should not strike it.
II.

Legal Standards
A. Administrative Tax Levy
Government tax levies initiated under 26 U.S.C. § 6331–44 are administrative levies. United

States v. Rodgers, 461 U.S. 677, 682 (1983). Administrative levies generally do not require court
involvement. However, if the taxpayer owes more than $5,000 and does not have sufficient assets to
pay the amount due, the government may levy a taxpayer’s residence after obtaining court approval.
26 U.S.C. § 6334(a)(13), (e). In its petition to the court, the government must show: “[t]he underlying
liability has not been satisfied, the requirements of any applicable law or administrative procedure
relevant to the levy have been met, and no reasonable alternative for collection of the taxpayer’s debts
exists.” 26 C.F.R. § 301.6334-1(d)(1).
If the taxpayer files a timely objection asserting a genuine dispute of material fact which
challenges any of the three elements under § 301.6334-1(d)(1), the court will schedule a hearing where
the taxpayer may refute the government’s contentions. 26 C.F.R. § 301.6334-1(d)(2). If the court
grants the levy, the government may sell the residence. 26 U.S.C. § 6335. The taxpayer may redeem
the property within 180 days of the sale by paying the purchaser the purchase price plus interest.
26 U.S.C. § 6337(b)(1), (2).
B. Requirements to Establish Personal Jurisdiction

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To initiate a lawsuit, the Federal Rules of Civil Procedure require a party to file a complaint
with the court, obtain a summons signed by the clerk and stamped with the court’s seal, and serve the
other party with both documents. Fed. R. Civ. P. 3–5. The summons is crucial in initiating a lawsuit
as it “[directs] an individual . . . to participate in a civil action or forgo procedural or substantive
rights.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). “[S]ervice of
summons is the procedure by which a court having venue and jurisdiction of the subject matter of the
suit asserts jurisdiction over the person of the party served.” Mississippi Pub. Corp. v. Murphree, 326
U.S. 438, 444–45 (1946). Only after the summons has been served may a federal court exercise
personal jurisdiction over a defendant. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987).
III.

Discussion
Because respondent filed an objection to the government’s petition to levy upon his personal

residence, the court held a hearing, heard his objection, and issued a written order of judicial approval
to levy respondent’s principal residence. In addition to stating respondent’s tax liability exceeded
$5,000, the petition asserted: respondent had not paid the amount owed; petitioner adhered to
applicable laws and procedures related to the levy; and no reasonable alternatives existed to satisfy
respondent’s debt. The court’s involvement was limited to assessing respondent’s challenges to those
three assertions.

Respondent objected to the second and third assertions, the court heard those

objections, and finding respondent’s arguments unpersuasive, the court then issued an order granting
the court’s approval for petitioner to levy upon respondent’s principal residence.
The court order constituted a final decision. “A ‘final decision’ generally is one which ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v.
United States, 324 U.S. 229, 233 (1945).

The court evaluated the merits of petitioner’s and

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respondent’s arguments and granted the petition. This ended the litigation, and the court closed the
case.
Respondent’s current submission attempts to reopen that case. But he does not provide any
precedent suggesting that doing so is proper. His only argument is that it would promote judicial
efficiency and allow the case to progress more swiftly than starting a new case. But respondent
ignores the fact that this case was only before the court to resolve the very discrete issue of whether
petitioner should be allowed to levy on respondent’s personal residence. The court decided that issue
and closed the case. Absent authority to the contrary, the court will not now reopen the case to hear
respondent’s grievances on that process. Though respondent construes his filing as a motion, it is more
analogous to a complaint. It raises an issue outside the scope of those previously addressed by the
court and seeks relief that was originally unavailable. The proper course for respondent to address
petitioner’s alleged failure to notify him of the redemption period for his residence is not to file a
motion in this case. This case is closed.
IT IS THEREFORE ORDERED that respondent’s Motion to Reopen Redemption Period
(Doc. 13) is dismissed.
Dated August 3, 2017, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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