United States of America v. Ellison
ORDER denying 4 Motion to Dismiss. Signed by District Judge Lawrence P. Zatkoff. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. 12-51560
Hon. Lawrence P. Zatkoff
PHILIP W. ELLISON, SR.,
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on March 19, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
This matter is before the Court on Respondent’s1 Motion to Dismiss the Petition [dkt 4].
Petitioner filed a response to the Motion [dkt 5]. Respondent failed to file a reply brief and the
time period in which to do so has elapsed. The Court finds that the facts and legal arguments are
adequately presented in the parties’ papers such that the decision process would not be
significantly aided by oral argument or additional briefing. Therefore, pursuant to E.D. Mich.
L.R. 7.1(f)(2), it is hereby ORDERED that the Motion be resolved on the briefs submitted. For
the reasons set forth below, Respondent’s Motion to Dismiss is DENIED.
Petitioner commenced this action pursuant to §§ 7402(b) and 7604(a) of the Internal
Revenue Code of 1986, 26 U.S.C. §§ 7402(b) and 7604(a) (hereinafter referred to as § 7402(b)
and § 7604(a), respectively), to judicially enforce an Internal Revenue Service (“IRS”) summons
Respondent is proceeding pro se.
issued to Respondent. Petitioner, on behalf of the IRS, is conducting an investigation into the
income tax liability of Respondent for the year 2011.
Petitioner alleges that Respondent has within his possession and control testimony,
books, records, papers and other data that are relevant to the investigation. On May 18, 2012, an
IRS summons was issued to Respondent ordering him to appear before an IRS agent on June 14,
2012, to testify and produce the financial information requested in the summons. Respondent
failed to appear.
The IRS scheduled a “last chance appointment” for July 18, 2012, and provided notice of
that appointment in letter sent to Respondent. Respondent again failed to appear. As such,
Petitioner was prompted to file the Petition to enforce the IRS summons in this Court [dkt 1].
On December 12, 2012, the Court ordered Respondent to appear for a show cause hearing on
February 19, 2013, in Port Huron, Michigan, to explain why he should not be compelled to
comply with the IRS summons.2
In response to the Petition, on January 7, 2013, Respondent filed an answer and the
instant Motion to Dismiss [dkt 3]. Respondent’s Motion presents two arguments that allegedly
warrant dismissal: (1) the Court does not have jurisdiction to hear this matter; and (2)
Respondent has complied with the Petitioner’s request for tax information by producing IRS
Form 433-A3 prior to Petitioner issuing the summons.
The Court held the show cause hearing on February 19, 2013. Because Respondent’s Motion had not yet been
addressed, the Court deferred ruling on whether Respondent must comply with the IRS summons. The Court noted
on the record, however, it was likely that the Petition would be enforced against Respondent so long as
Respondent’s Motion was denied.
The IRS issues Form 433-A, captioned “Collection Information Statement for Wage Earners and Self-Employed
Individuals”, to collect financial information from an individual that has unpaid tax debt. The individual then
submits the form with the requested information if he or she desires to enter into an amicable settlement with the
IRS pertaining to the tax debt.
III. STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(1) permits dismissal for “lack of jurisdiction over the subject
matter.” Lack of subject-matter jurisdiction may be asserted at any time, either in a pleading or
in a motion. See Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which all allegations of the plaintiff must be considered as true, or it
can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence
and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Ky., 381 F.3d
511, 516 (6th Cir. 2004).
Respondent’s first ground of attack against the Petition is the Court’s apparent lack of
subject matter jurisdiction to hear this case.
Respondent’s justification for his conclusory
assertion is perplexing: “The only jurisdictional court that can hear matters of the People per the
declared Supreme Law of the Land, the Constitution of the united States, and pursuant to the
Michigan State Constitution, is a Court that conforms to and functions pursuant to Article 6
Section 1 of the Federal Constitution . . . .” See Dkt. # 3, p. 1. The undersigned is well apprised
of his duties emanating from the U.S. Constitution—including Article 6—and questions how,
exactly, such a statement would strip this Court of jurisdiction.
Irrespective of that, the Court finds that jurisdiction in this matter is proper pursuant to §
7604(a). That section states:
If any person is summoned under the internal revenue laws to
appear, to testify, or to produce books, papers, records, or other
data, the United States district court for the district in which such
person resides or is found shall have jurisdiction by appropriate
process to compel such attendance, testimony, or production of
books, papers, records, or other data.
26 U.S.C. § 7604(a).4 Respondent resides in Macomb, Michigan, which is located within the
Eastern District of Michigan. Accordingly, because this Court is “the United States district court
for the district in which [Respondent] resides”, the Court has jurisdiction to compel
Respondent’s compliance with the above-mentioned Petition.
II. FORM 433-A
Respondent next argues that the Petition should be dismissed because he provided “the
required documentation that was asked of [him]” by submitting IRS Form 433-A. The Court
It is alleged that Respondent has failed to file a tax return for the year 2011. In order to
resolve this discrepancy, Petitioner has requested via the Petition that Respondent provide
information regarding his 2011 income, as well as any other information necessary to generate a
tax return for 2011. Respondent’s argument that IRS Form 433-A is sufficient to satisfy that
request is misplaced. IRS Form 433-A does not provide the “testimony, books, records, papers,
and other data” regarding the tax liability of Respondent for the year 2011 as requested in the
Petition. Because the financial information requested by Petitioner has not been produced, the
Court finds Respondent’s argument without merit.
Accordingly, and for the above reasons, IT IS HEREBY ORDERED that Respondent’s
Motion to Dismiss [dkt 4] is DENIED.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge
Dated: March 19, 2013
For authority of district courts generally to enforce the provisions of Title 26, see § 7402.
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