Suvak v. United States of America

Filing 20

MEMORANDUM AND ORDER: For the reasons discussed above, the plaintiff's application for reconsideration is granted, but I adhere to my prior decision granting the government's partial motion to dismiss. (Signed by Magistrate Judge James C. Francis on 6/7/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ROBERT M. SUVAK,
:
:
Plaintiff,
:
:
- against :
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

(ECF)
12 Civ. 6004 (JCF)
MEMORANDUM
AND ORDER

Robert Suvak has applied for reconsideration of my May 21,
2013 Memorandum and Order, granting the government’s partial motion
to dismiss his claims for income tax refunds as to tax years 1998,
1999, and 2004 for lack of subject matter jurisdiction.

See Suvak

v. United States, No. 12 Civ. 6004, 2013 WL 2217171 (S.D.N.Y. May
21, 2013).

For the following reasons, reconsideration is granted,

but I adhere to my prior determination.
Background
Mr. Suvak brought this action seeking to recover tax refunds
for alleged overpayment for tax years 1998 through 2004.

On March

22, 2013, the government moved to dismiss the plaintiff’s claims
related to tax years 1998, 1999, and 2004 for lack of subject
matter jurisdiction because Mr. Suvak filed suit more than two
years after the Internal Revenue Service (the “IRS”) mailed him
notices of disallowance for those years. The plaintiff was granted
two extensions of time to respond. (Memorandum Endorsement dated
April 11, 2013; Memorandum Endorsement dated May 1, 2013).
However, he did not submit a timely response.
1

On May 21, 2013, I issued a Memorandum and Order, granting the
government’s motion.

Suvak, 2013 WL 2217171.

I observed that the

Court is deprived of subject matter jurisdiction over a tax refund
suit brought “after the expiration of 2 years from the date of
mailing by certified mail or registered mail by the Secretary to
the taxpayer of a notice of disallowance of the part of the claim
to which the suit . . . relates.”

Id. at *3 (alteration in

original) (quoting 26 U.S.C. § 6532(a)(1)).

The records provided

by the government demonstrated that the IRS sent to Mr. Suvak by
certified mail notices of disallowance for tax years 1998 and 1998
on March 31, 2010, and for tax year 2004 on May 12, 2010.
Since

Mr.

Suvak

brought

suit

after

the

two-year

Id.

statute

of

limitations lapsed, I granted the government’s motion and dismissed
the plaintiff’s claims as to 1998, 1999, and 2004.

Id. at *3-4.

In a letter dated May 21, 2013, plaintiff’s counsel informed
the Court that he had been unable to file the response to the
defendant’s motion electronically and instead mailed it on May 14,
2013.

(Memorandum

Order”)).
the

Endorsement

dated

May

22,

2012

(“May

22

No such papers were received1 but I agreed to consider

plaintiff’s

untimely

response

reconsideration of the May 21 decision.

as

an

application

for

(May 22 Order).

Discussion
A.

Legal Standard

A motion for reconsideration is governed by Rule 6.3 of the

1

On May 30, 2013, I received the plaintiff’s opposition
papers which had been docketed on May 28, 2013.
2

Local Rules of the United States District Courts for the Southern
and Eastern Districts of New York and is committed to the sound
discretion of the court.

Idowu v. Middleton, No. 12 Civ. 1238,

2013 WL 371657, at *1 (S.D.N.Y. Jan. 31, 2013). “‘The standard for
granting

such

generally

be

a

motion

denied

is

unless

strict,
the

and

moving

reconsideration
party

can

will

point

to

controlling decisions or data that the court overlooked -- matters,
in other words, that might reasonably be expected to alter the
conclusion reached by the court.’”

Space Hunters, Inc. v. United

States, 500 F. App’x 76, 81 (2d Cir. 2012) (quoting Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Generally,
reconsideration “requires ‘an intervening change of controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Capitol Records, Inc.
v. MP3tunes, LLC, No. 07 Civ. 9931, 2013 WL 1987225, at *1
(S.D.N.Y. May 14, 2013) (quoting Virgin Atlantic Airways Ltd. v.
National Mediation Board, 95 F.2d 1245, 1255 (2d Cir. 1992)).
Reconsideration

is

“an

extraordinary

remedy

to

be

employed

sparingly in the interest of finality and conservation of scarce
judicial resources.”

Hinds County, Mississippi v. Wachovia Bank

N.A., 700 F. Supp. 2d 378, 407 (S.D.N.Y. 2010) (internal quotation
marks omitted).
B.

Reconsideration

The plaintiff contends that this Court erred in dismissing his
claims as to tax years 1998, 1999, and 2004 because the government
has not provided “adequate proof” that the notices of disallowance
3

were

sent

by

certified

mail.

(Plaintiff’s

Opposition

to

Defendant’s motion to Dismiss in Part and Memorandum of Law (“Pl.
Memo.”) at 2).

He cites Barnes v. Commissioner of Internal

Revenue, No. 8219-07L, 99 T.C.M. (CCH) 1126, 2010 WL 610674, at *5
(T.C. Feb. 22, 2010), which notes that “[a] properly completed
[United States Postal Service (“USPS”) Form] 3877 certified mailing
list

reflecting

Postal

Service

receipt

represents

direct

documentary evidence of the date and fact of mailing.”
The IRS is presumed to have properly mailed a notice if it can
demonstrate

that

the

notice

existed

and

produce

a

properly

completed USPS Form 3877 certified mail list or its equivalent.
O’Rourke v. United States, 587 F.3d 537, 540 (2d Cir. 2009).

A

list by the IRS of certified mailings (“Certified Mail List”)
“compiled in accordance with [the IRS’] regular practices” that
indicates that the mailings were received by the USPS is sufficient
proof that the notices were sent by certified mail.

Follum v.

Commissioner of Internal Revenue, 128 F.3d 118, 121 (2d Cir. 1997);
see United States v. Dickert, No. 1:11-cv-00060, 2012 WL 7807609,
at *4 (N.D. Fla. Sept. 24, 2012) (finding that notice indicating it
was sent by certified mail and containing certified mail tracking
number which matched tracking number listed on IRS’ certified mail
log and “Track & Confirm” printout from USPS listing delivery
information for same certified mail number were sufficient); see
also Venhuizen v. Commissioner of Internal Revenue, No. 19660-11L,
104 T.C.M. (CCH) 345, 2012 WL 4344169, at *10 (T.C. Sept. 24, 2012)
(“A

certified

mailing

list

containing
4

substantially

the

same

information as is found on Postal Service Form 3877 raises a
presumption in favor of the Commissioner that is sufficient, absent
contrary evidence, to prove that a notice . . . was properly
mailed.”); Crain v. Commissioner of Internal Revenue, 103 T.C.M.
(CCH) 1533, T.C. Memo. 2012-97, 2012 WL 1083489, at *5 (T.C. April
2, 2012) (finding certified mailing list which “discloses that (1)
the notice . . . was sent to petitioner by certified mail; (2) the
notice’s certified mail tracking number, and (3) the address to
which

the

notice

was

sent,”

and

equivalent to USPS Form 3877).

bearing

USPS

date

stamp

is

Likewise, courts have considered

the IRS’ Form 4340 Certificate of Assessment to be sufficient
evidence of certified mailing.

See, e.g., Brach v. United States,

98 Fed. Cl. 60, 66 n.13 (Fed. Cl. 2011) (finding copy of notice of
disallowance marked with “certified mail” and listing USPS’ 20digit

certified

Assessment

which

mail

label

listed

number,

“claim

Form

4340

disallowance”

Certificate
entry

date,

of
and

declaration of IRS employee about customary mailing practice at IRS
were sufficient); Hansen v. United States, 7 F.3d 137, 138 (9th
Cir. 1993) (finding Form 4340, “a computer-generated IRS form
prepared exclusively for litigation” indicating notice was sent is
sufficient); Leathers v. Leathers, Civil Action No. 08-1213, 2013
WL 1873275, at *7 (D. Kan. May 3, 2013) (certified transcript from
the IRS showing notices were sent is sufficient); United States v.
Stevenson, Civil Action No. 09-3034, 2010 WL 2490756, at *3 (E.D.
Pa. June 15, 2010) (collecting cases)
Here, the government provided a Certified Mailing Repository
5

Individual Report (“CMR Report”) for each notice of disallowance.
(Certified Mailing Report for Tax Year 1998 (“1998 CMR Report”),
attached as Exh. A to Declaration of Hildegard Grysiak dated March
21, 2013 (“Grysiak Decl.”); Certified Mailing Report for Tax Year
1999 (“1999 CMR Report”), attached as Exh. B to Grysiak Decl.;
Certified Mailing Report for Tax Year 2004 (“2004 CMR Report”),
attached as Exh. C to Grysiak Decl.); Suvak, 2013 WL 2217171, at
*3.

A CMR Report is generated from the IRS’ Certified Mailing

Repository System (“CMR System”), “which is [a system] maintained
by the IRS for tracking notices and correspondence sent by the IRS
through United States Postal Service [] Certified Mail.”
Decl., ¶ 3).

(Grysiak

When the IRS sends notices by certified mail, “the

IRS transmits to the USPS a certified mailing listing” which is “a
listing of data corresponding to the actual notices or letters that
are delivered to USPS for mailing.”

(Grysiak Decl., ¶ 4).

The

USPS inputs the information from the certified mailing listing into
its own database and updates the information with the delivery
status

of

each

notice

or

letter,

electronically to the CMR System.

which

is

then

transmitted

(Grysiak Decl., ¶ 5).

“The IRS

can then access the CMR System to track letters sent by Certified
mail and print reports generated by the system but cannot modify or
update the information in the system.”

(Grysiak Decl., ¶ 5).

The

CMR Report for tax years 1998, 1999, and 2004 indicate that the
notices were “Delivered and Signed” according to the USPS.
CMR Report; 1999 CMR Report, 2004 CMR Report).

6

(1998

Further, the information contained in the CMR Report for each
of the notices corroborates with the mailing information on the
notices themselves.

The notices for tax years 1998, 1999, and 2004

indicate that they were sent by certified mail and contain the same
certified

mailing

tracking

respective CMR Reports.

numbers

that

are

listed

on

the

(Notice of Disallowance of Claim for Tax

Year 1998, attached as Exh. A to Declaration of Gennady Zilberman
dated March 21, 2013 ("Zilberman Decl."), Notice of Disallowance of
Claim for Tax Year 1999, attached as Exh. B to Zilberman Decl.;
Notice of Disallowance of Claim for Tax Year 2004, attached as Exh.
C to Zilberman Decl.).

The government has thus provided ample

evidence that the notices of disallowance for tax years 1998, 1999,
and 2004

were sent by certified mail and that

the plaintiff's

corresponding claims are untimely.
Conclusion
For the reasons discussed above, the plaintiff's application
for reconsideration is granted, but I adhere to my prior decision
granting the government's partial motion to dismiss.
SO ORDERED.

FRANCIS IV
MAGISTRATE JUDGE
Dated:

New York, New York
June 7, 2013

Michael E. Breslin, Esq.

250 W. 57th St.

Suite 816

New York, NY 10107

7

Elizabeth Tulis, Esq.
Assistant United States Attorney
86 Chambers Street
New York, NY 10007

8