MacAlpine v. The United States

Filing 8

ORDER dismissing 6 Motion for Reconsideration.. Signed by District Judge Martin Reidinger on 05/29/12. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12mc15

JAMES EDWARD MacALPINE,

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Petitioner,
vs.
THE UNITED STATES,
Respondent.

ORDER

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THIS MATTER is before the Court on the Petitioner’s pro se Motion to
Reconsider [Doc. 6].
On April 17, 2012, the Petitioner’s Petition to Quash Summons [Doc. 1]
was dismissed as untimely. [Doc. 5]. The Petitioner who has filed two other
petitions to quash a third-party summons issued by the Internal Revenue
Service (IRS), sought to quash a third-party summons issued by the IRS to
Wells Fargo Bank, NA (Wells Fargo).1 [Doc. 1 at 23 -25]. In response to that
dismissal, the Petitioner then filed a Motion to Reconsider in which he

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The Petitioner has a history in this Court of filing petitions to quash third-party
summonses issued by the IRS and, likewise, a history of being unsuccessful in doing
so. MacAlpine v. United States, 1:05mc237; MacAlpine v. United States, 1:06mc11.

essentially blames the staff of the Clerk of this Court for the untimeliness of
his motion. [Doc. 6]. Among the allegations cast upon that office are the
following: (1) it was impossible for him to timely file the petition on April 10,
2012 because the Clerk’s office was closed; thus, the petition filed on April 11,
2012 was timely; and (2) he received inaccurate advice from the deputy clerks
within the Clerk’s office upon which he relied; thus, he should not be blamed
for an untimely filing.
On March 20, 2012, a third-party summons was issued by the IRS to
Wells Fargo and a copy thereof along with Notice was sent to the Petitioner.
[Doc. 1-1 at 8-10]. Included in the Notice were instructions as to the manner
of filing a petition to quash the third-party summons. [Id. at 10]. Among the
instructions provided were the following: “You must file your petition within 20
days from the date of this notice and pay a filing fee as may be required by
the clerk of the court.” [Id.] (emphasis provided). It is undisputed that the
summons and notice attached thereto were dated March 20, 2012. [Id. at 8].
As stated in the Notice, 26 U.S.C. §7609(b)(2)(A) provides that when the
IRS issues a summons to a third-party record keeper, the taxpayer to whom
the summons relates may begin a proceeding to quash the summons within

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twenty days of the date of the summons and notice from the IRS.2 The
twentieth day after the issuance of that summons was April 9, 2012. Thus,
this proceeding, filed on April 11, 2012, is untimely. Berman v. United States,
264 F.3d 16, 18-9 (1 st Cir. 2001) (twenty day period runs from date of
issuance not receipt and provision of Rule 6 for additional three days
inapplicable to §7609(b)(2) which is a statute of limitations); Faber v. United
States, 921 F.2d 1118, 1119 (10 th Cir. 1990) (timely filing of the proceeding is
a jurisdictional prerequisite); Johnson v. United States, 2008 WL 4560726
(W.D.N.C. 2008); Wahler v. United States, 2002 WL 32081856 **4 n.3
(W.D.N.C. 2002), affirmed 62 F. App’x. 526 (4 th Cir. 2003).
By virtue of the Petitioner’s own statements, he made no attempt to file
anything on or before April 9, 2012. He asserts that his first contact with the
Court was on April 10, 2012, which is after the time had already expired. [Doc.
6 at 3-4]. Petitioner claims that on April 10, 2012 he was told by a deputy
clerk of court that he needed summonses and that he appeared at the Clerk’s
office that afternoon only to find it closed. This, however, is irrelevant. The
time within which the Petitioner could have filed a petition to quash expired the
day before, on April 9, 2012. For this reason his claims that he received

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Banks qualify as third-party record keepers. 26 U.S.C. §7603.
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conflicting information from employees of the Clerk’s office on April 10, 11 and
12 of 2012 are likewise of no moment.3 Berman, 264 F.3d at 19-20 (where
IRS agent’s statement of deadline was made after the 20 day period had
already expired, taxpayer could not show any reliance thereon).
Because the petition to quash was untimely filed, it is unnecessary to
reach the many other arguments raised.
IT IS, THEREFORE, ORDERED that the Petitioner’s pro se Motion to
Reconsider [Doc. 6] is hereby DISMISSED.
Signed: May 29, 2012

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The Court notes that the Petitioner quotes statements purportedly made to him
over the telephone by various such employees, indicating that he surreptitiously tape
recorded conversations with federal employees without permission or knowledge. [Doc.
6 at 3]. The Court therefore directs that a copy of Document 6 as well as this Order be
provided to the United States Attorney for the Western District of North Carolina.
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