Fisher v. United States of America et al

Filing 14

ORDER granting 5 Motion to Dismiss(Written Opinion). Signed by Senior Judge David S. Doty on 7/17/2012. (PJM)cc: Cybil L Fisher Modified on 7/17/2012 (jam). Modified on 7/17/2012 (jam).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Misc. No. 12mc18(DSD/JJK)
Cybil L. Fisher,
Petitioner,
ORDER

v.
United States of America,
Internal Revenue Service
and Michael R. Bake, Revenue
Agent,
Respondents.

Cybil L. Fisher, 1609 Redstone Trail, Green Bay, WI
54313, pro se.
Miranda J. Bureau, U.S. Department of Justice, Tax
Division, Central Region, P.O. Box 7238, Ben Franklin
Station, Washington, D.C. 20044, counsel for respondents.

This matter is before the court upon the motion by respondents
United States of America, Internal Revenue Service (IRS) and IRS
agent Michael R. Bake to dismiss the petition to quash summons.
Based on a review of the file, record and proceedings herein, and
for the following reasons, the court grants the motion.

BACKGROUND
This tax-liability dispute arises from the alleged non-payment
of federal income tax by petitioner Cybil L. Fisher.

Fisher

operates Cybil Fisher Photography in Green Bay, Wisconsin.
On October 4, 2011, Bake issued a written request for Fisher
to file tax returns for 2007 through 2010.

Bake Second Decl. ¶ 2.

Fisher did not respond.

Id.

On October 21, 2011, and again on

January 12, 2012, Bake sent Fisher a letter, informing her that the
IRS may contact third-parties in conjunction with its investigation
into her tax liability.

Id. ¶ 3.

On January 31, 2012, the IRS issued an administrative summons
directing U.S. Bank to provide financial information pertaining to
Fisher and her photographic service by February 29, 2012.
Decl. ¶ 3; id. Ex. 1.

Bake

A notice of this summons was also sent to

Fisher via certified mail on January 30, 2012.

Id. ¶ 6.

On

February 23, 2012, Fisher filed the petition to quash the summons.
See ECF No. 1.

DISCUSSION
When the government opposes a motion to quash a summons, the
petitioner maintains the burden to establish a valid defense to the
summons.

See Wilde v. United States, 385 F. Supp. 2d 966, 968 (D.

Ariz. 2005).

A motion to dismiss in this context mirrors a Rule

12(b)(6) motion to dismiss for failure to state a claim for
relief.1

Id. (citation omitted).

1

In a motion to dismiss, the court may only consider
materials “that are part of the public record,” Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999), and matters
“necessarily embraced by the pleadings and exhibits attached to the
complaint.” Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 n.4
(8th Cir. 2003). After analyzing the record, the court notes that
all of Fisher’s claims would fail if the court converted the
present motion into a motion for summary judgment.
2

As an initial matter, the government argues that Fisher’s
motion to quash is untimely.

A petitioner “shall have the right to

begin a proceeding to quash [a] summons not later than the 20th day
after the day such notice is given.”

26 U.S.C. § 7609(b)(2)(A);

accord Shisler v. United States, 199 F.3d 848, 852 (6th Cir. 1999)
(noting that twenty day requirement is jurisdictional in nature).
Notice is sufficient when mailed to the petitioner by certified or
registered mail.
(10th Cir. 1990).

See Faber v. United States, 921 F.2d 1118, 1119
As a result, a motion to quash must be “filed

within 20 days of the mailing of the notice, not of its receipt.”
Berman v. United States, 264 F.3d 16, 19 (1st Cir. 2001) (citation
omitted).
In the present action, the government mailed the summons to
Fisher on January 30, 2012.

Bake Decl. ¶ 3.

Fisher filed her

petition to quash on February 23, 2012, more than twenty days after
issuance of the summons.

Fisher did not respond to this argument

in her brief in opposition or at oral argument.

Therefore,

dismissal of Fisher’s motion to quash is warranted.
Dismissal is also warranted because Fisher failed to serve the
respondents properly.

“To serve the United States, a party must

deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought,” and
must also “send a copy of each by registered or certified mail to
the Attorney General of the United States.”

3

Fed. R. Civ. P.

4(i)(1).

Fisher named the United States of America and the IRS as

parties to the present action, but served only Bake and U.S. Bank.
See ECF No. 1. Therefore, for this additional reason, dismissal is
warranted.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendant’s motion to dismiss [ECF No. 5] is granted.
LET JUDGEMENT BE ENTERED ACCORDINGLY.
Dated:

July 17, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court

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