Umoren v. United States of America

Filing 5

REPORT AND RECOMMENDATION that ECF No. 3 Motion to Quash IRS Summons be dismissed for lack of jurisdiction. Objections to R&R due by 7/24/2017. Signed by Magistrate Judge Nancy J. Koppe on 7/10/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 KING ISAAC UMOREN, 11 12 13 14 15 16 17 18 19 ) ) Plaintiff(s), ) ) v. ) ) UNITED STATES, ) ) Defendant(s). ) __________________________________________) Case No. 2:17-cv-01353-MMD-NJK REPORT AND RECOMMENDATION Pending before the Court is a Petition to Quash IRS Summons. Docket No. 3. Congress has codified the requirements for serving such a petition: If any person begins a proceeding under subparagraph (A) with respect to any summons, not later than the close of the 20-day period referred to in subparagraph (A) such person shall mail by registered or certified mail a copy of the petition to the person summoned and to such office as the Secretary may direct in the notice referred to in subsection (a)(1). 20 21 26 U.S.C. § 7609(b)(2)(B). Hence, this section requires a moving party to serve the person summoned by 22 the IRS and on any office designated in the notice provided with the original IRS summons. See, e.g., Bilan 23 v. United States, 2011 WL 724971, at *1 (N.D. Cal. Feb. 23, 2011). The failure to properly serve the 24 petition to quash as directed by § 7609(b)(2)(B) is a jurisdictional defect. See, e.g., Strong v. United States, 25 57 F. Supp. 2d 908, 916 (N.D. Cal. 1999). 26 27 28 1 In this case, the proof of service accompanying the motion to quash identifies Timothy Bauer1 and 2 Bank of America as having been served. Docket No. 3 at 4. The petition to quash has not attached a copy 3 of the notice and summons, however, making it impossible for the Court to determine if service was 4 effectuated.2 As such, the Court ordered Petitioner to show cause in writing, no later than July 6, 2017, why 5 the petition should not be denied for lack of service. Docket No. 4. Petitioner did not respond to that order 6 to show cause. Accordingly, the undersigned RECOMMENDS that the petition to quash IRS summons 7 be DISMISSED for lack of jurisdiction. 8 Dated: July 10, 2017 9 ________________________________________ NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE 10 11 12 NOTICE 13 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in 14 writing and filed with the Clerk of the Court within 14 days of service of this document. The 15 Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to 16 the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This 17 circuit has also held that (1) failure to file objections within the specified time and (2) failure to 18 properly address and brief the objectionable issues waives the right to appeal the District Court’s order 19 and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 20 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 22 23 24 1 25 26 Although the proof of service does not identify Mr. Bauer’s title, the Court takes judicial notice of the fact that the address provided for him is the Las Vegas IRS office according to the IRS website. See, e.g., Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010) (courts may take judicial notice of information on government websites). 27 2 28 The motion indicates that it attaches the IRS summons as Exhibit A. See Docket No. 3 at 1. No such exhibit was attached. 2

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