Hunkler v. United States of America et al

Filing 3

Opinion and Order signed by Judge James S. Gwin on 2/15/13 denying the petition to quash third party summons filed by Dennis J. Hunkler. (Related Doc. 1 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

DENNIS HUNKLER,
CASE NO. 1:13-CV-0157
Petitioner,
vs.

OPINION & ORDER
[Resolving Doc. No. 1]

UNITED STATES OF AMERICA, et al.,
Respondents.

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On January 22, 2013, pro se Petitioner Dennis J. Hunkler filed the above-captioned Petition
to Quash I.R.S. Summons.(Doc. No. 1). Mr. Hunkler seeks an order from this Court quashing a
third-party summons issued by the Commissioner of Internal Revenue on January 2, 2013. For the
reasons set forth below, the Petition is denied.
I. Background
I.R.S. Agent Timothy O’Boyle issued a summons on January 2, 2013 to Citizens National
Bank, P.O. Box 88, Bluffton, Ohio 45817. (Pet.'s Ex. A.) The Summons required Citizens Bank
to appear before Agent O’Boyle, or his designee: "to give testimony and to bring with you and to
produce for examination the following books, records, papers and other data relating to the tax
liability . . . concerning . . . Dennis J. Hunkler . . .”. Id. Citizens Bank was scheduled to comply with
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the I.R.S. summons on or about February 1, 2013. Mr. Hunkler does not aver on what date he
received a copy of the summons.
Mr. Hunkler now seeks to quash the summons, arguing that: (1) the I.R.S. failed to timely
notify him of the summons in violation of 26 U.S.C. §7609(a)(1); (2) the I.R.S. failed to provide
advance notice that contact would be made with third parties; (3) the summons was issued while
a referral for criminal prosecution was pending in violation of 26 U.S.C. §7602(d)(2)(A); (4) the
I.R.S. failed to act in good faith as set forth in United States v. Powell, 379 U.S. 48 (1964); and, (5)
the I.R.S. will violate banking laws as well as his right to privacy if the summoned records are
revealed. Mr. Hunkler seeks $1,000.00 for each violation of State and Federal privacy laws and asks
this Court to order the I.R.S. to turn over to him any third party summons and request for documents,
as well as records seized as a result of the summons.
II. Internal Revenue Service
Third Party Review
The I.R.S. is authorized, by statute, to examine any relevant documentation and summon any
person in possession of any relevant information or documentation when conducting a tax
investigation. See 26 U.S.C. § 7602(a). To achieve its goal, the I.R.S. may serve a summons upon
a third-party record keeper, such as a bank or other financial institution, in order to obtain financial
records or information regarding a person who is the subject of an investigation by the I.R.S. See 26
U.S.C. § 7609(a).
There is no dispute Mr. Hunkler is the subject of an I.R.S. investigation. Thus, when the
I.R.S. served a summons on a third-party record keeper, he was entitled to notice that a summons

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had been served. Id.; Clay v. United States, 199 F.3d 876, 878 (6th Cir.1999). Pursuant to 26 U.S.C.
§ 7609(a)(1), a copy of the summons served on Citizens Bank was also provided to Mr. Hunkler.
After receiving the summons, Mr. Hunkler was entitled to file a petition to quash the summons
within twenty days from the date the summons was mailed. See Shisler v. United States, 199 F.3d
848, 850 (6th Cir.1999); see also 26 U.S.C. § 7609(b)(2)(A).
“The United States district court for the district within which the person to be summoned
resides or is found shall have jurisdiction to hear and determine” a petition to quash a summons
issued by the I.R.S. to a third-party record keeper. 26 U.S.C. § 7609(h)(1). The summoned party,
Citizens Bank, is located in Bluffton, Ohio 45817.1 Because this address is well within the
jurisdiction of the Northern District Court of Ohio, this Court has jurisdiction to address Mr.
Hunkler's petition to quash the summons. Id.
III. I.R.S. Notice
As the person (other than the person summoned) identified in the notice of the summons,
Mr. Hunkler was entitled to notice “within 3 days of the day on which such service is made, but no
later than the 23rd day before the day fixed in the summons as the day upon which such records are
to be examined.” 26 U.S.C. §7609(a)(1). Notice is considered sufficient if
on or before such third day, such notice is served in
the manner provided in section 7603 (relating to

1

In his petition, Mr. Hunkler provides an address for Citizens Bank in Woodsfield, Ohio
43713, which is within the United States District Court for the Southern District of Ohio’s
jurisdiction. The I.R.S. summons, however, identifies a Bluffton, Ohio address for Citizens Bank.
Because the summons is the centerpiece of Mr. Hunkler’s petition, the Court will rely on the address
provided on that document.
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service of summons) upon the person entitled to
notice, or is mailed by certified or registered mail to
the last known address of such person, or, in the
absence of a last known address, is left with the
person summoned. If such notice is mailed, it shall be
sufficient if mailed to the last known address of the
person entitled to notice. . .
26 U.S.C. §7609(a)(2). Therefore, the I.R.S. was required to mail Mr. Hunkler a copy of the
summons it served on Citizens Bank, within three days of the January 2, 2013 date it mailed the
original summons, or 23 days before the February 1, 2013 date the records were scheduled for
examination. Thus, the latest date on which I.R.S. notice should have been provided to Mr. Hunkler
was by January 9, 2013.
Mr. Hunkler does not provide any sworn statement declaring when he received notice from
the I.R.S. Instead, he simply states the I.R.S. failed to provide timely notice. Without even
disclosing the date on which he received notice, Mr. Hunkler cannot argue the I.R.S. did not meet
its obligation to provide timely notice.
IV. Timeliness - Petition to Quash
A taxpayer's motion to quash an I.R.S. third-party record-keeper summons must be filed
within twenty days from the date the notice of the summons, and the right to file a petition to quash,
is mailed to the taxpayer by the I.R.S. See 26 U.S.C. § 7609(b)(2)(A). This twenty-day limit must
be strictly construed because it is a condition precedent to the United States' waiver of sovereign
immunity. Shisler v. United States, 199 F.3d 848, 852 (6th Cir. 1999); Clay v. United States, 199 F.3d
876 (6th Cir.1999). Although Mr. Hunkler claims he failed to file his petition on time because the
I.R.S. failed to provide timely notice, he misstates the record. When the petition to quash was filed
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on January 22, 2013, it was within the twenty-day period required to secure this Court’s jurisdiction.
Therefore, Mr. Hunkler complied with the twenty-day filing requirement set forth in section
7609(b)(2)(A).
V. Improper/Untimely Service
Although the Petition to Quash was timely filed, this Court still lacks subject matter
jurisdiction as to this summons because Mr. Hunkler has not strictly complied with 26 U.S.C.
§7609(b)(2)(B). Section 7609 of the Code contains special procedures for third-party summons. 26
U.S.C. § 7609. Where a party exercises his right to intervene or bring proceedings to quash a third
party summons, the statute mandates that "[n]otice shall be given to any persons identified" in the
summons. 26 U.S.C. § 7609(a)(1)(B). Notice is deemed sufficient if it is "‘mailed by certified or
registered mail to the last known address of such person' who is entitled notice." Cook v. United
States, 104 F.3d 886, 888 (6th Cir.1997)(quoting 26 U.S.C. § 7609 (a) (2)).
The challenged summons was served by United States mail upon Citizens Bank on January
2, 2013. Therefore, Mr. Hunkler was required not only to file his Petition before this Court on or
before January 22, 2013, but also to serve a copy of the Petition upon the person summoned (i.e.
Citizens Bank) and “the I.R.S. employee and office designated in the notice of summons to receive
the copy” (here, presumably Mr. O’Boyle at the I.R.S.) on or before January 22, 2013. Faber v.
United States, 921 F.2d 1118, 1119 (10th Cir.1990)(for purposes of 26 U.S.C. 7609(b)(2), notice is
given on the date it is mailed); see also 26 C.F.R. § 301.7609–4(b)(2).
Mr. Hunkler avers he served the Petition upon Mr. O’Boyle on February 1, 2013, ten days
beyond the required time limitation. Moreover, he provides no evidence that he served Citizens
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Bank at all. Thus, he failed to provide Citizens Bank any notice, by certified or registered mail, of
his Petition to Quash. “The failure to comply strictly with § 7609(b)(2)(B) results in a finding ... that
the [United States has] not waived [its] sovereign immunity and that the petition to quash those
summonses must be dismissed.” Maikronz v. United States, 612 F .Supp. 590, 591 (S.D. Ind.1985);
see Gaumer v. United States, 685 F. Supp. 167 (N.D. Ohio 1988)(Party who had initiated proceeding
to quash I.R.S. summons required to send copy of petition proper I.R.S. agent, or persons
summoned, within 20 days of notice of summons; failure to do so required conclusion that United
States had not waived its sovereign immunity). Because Mr. Hunkler failed to comply with the
statutory notice requirements, this Court lacks subject matter jurisdiction to hear this action. See id.
VI. Conclusion and Order
For the reasons set forth above, the Petition to Quash Third Party Summons (Doc. No. 1)
is DENIED. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: February 15, 2013

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