Hunkler v. United States of America et al

Filing 7

Opinion and Order signed by Judge James S. Gwin on 4/8/13. The Court grants petitioner's motion to alter or amend and this case is reopened. Respondent shall fie a response to the petition to quash within 60 days from the date of entry of this order. The Court certifies that an appeal from this decision could not be taken in good faith. (Related Doc. 5 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

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

ORDER
[Resolving Doc. No. 5]

UNITED STATES OF AMERICA, et al.,
Respondents.

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Before the Court is pro se Petitioner Dennis J. Hunkler’s Motion to Alter or Amend the
Court’s Opinion & Order (Doc. No. 5) of February 15, 2013. (Doc. No. 3). On that date, the Court
dismissed Mr. Hunkler’s Petition to Quash based on a lack of jurisdiction. The Petition, as filed,
failed to comply with the jurisdictional notice requirements set forth in 26 U.S.C. § 7609(b)(2)(B).
See 26 C.F.R. § 301.7609-3.1 Mr. Hunkler now maintains that he did comply with the jurisdictional
notice requirement and furnishes documentary evidence to support his claim.
Motions to alter or amend judgment may be granted if there is a clear error of law, newly
discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. See
1

The regulation explains: “The act of filing a petition in district court does not in and of itself
institute a proceeding to quash under section 7609(b)(2). Rather, the filing of the petition must be
coupled with notice as required by section 7609(b)(2)(B).”
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Case No. 1:13-CV-0157
Gwin, J.
GenCorp, Inc. v. American Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)(citations
omitted). Mr. Hunkler does not explicitly seek relief based on an error of law, newly discovered
evidence, or a change in controlling law. Thus, the Court presumes he seeks relief to prevent
manifest injustice.
In support of his Motion, Mr. Hunkler attaches a photocopy of two separate United States
Postal Service Return Receipt cards addressed to Citizens National Bank and I.R.S. Agent Timothy
O'Boyle. Both cards indicate an article was delivered to each party on January 19, 2013 and January
22, 2013, respectively. Mr. Hunkler states that the cards were returned to him as proof that the
parties received notice that he filed a Petition to Quash in this court. These facts were neither shared
nor were copies furnished to the Court at the time Mr. Hunkler filed his Petition to Quash. The
United States agrees that the Petition omitted these relevant facts, but now confirms that the I.R.S.
agent did receive timely notice of Mr. Hunkler’s Petition to Quash on January 22, 2013. Moreover,
the United States does not object to Mr. Hunkler’s belated notice that Citizens Bank and the I.R.S.
were, in fact, timely served notice.
Based on the foregoing, the Court finds Mr. Hunkler timely served notice “to the person
summoned [Citizens National] and to such office as the Secretary may direct in the notice referred
to in subsection (a)(1)[I.R.S. Agent O’Boyle].” 26 U.S.C. §7609(b)(2)(B); see Bell v. United States,
521 F. Supp. 2d 456, 458 (D. Md. 2007) aff'd, 275 F. App'x 221 (4th Cir. 2008)(Court lacks subject
matter jurisdiction over the petition where movant failed to mail copy of Petition to bank); see, e.g.,
Dorsey v. United States, 618 F.Supp. 471, 474 (D. Md.1985); Yocum v. United States, 586 F.Supp.
317, 318–19 (D.C.Ind.1984); Fogelson v. United States, 579 F.Supp. 573, 574 (D.Kan.1983). In the
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Case No. 1:13-CV-0157
Gwin, J.
interest of justice, good cause exists to amend the Court’s judgment of February 15, 2013.
Accordingly, the Motion to Alter or Amend is granted (Doc. No. 5) and the case is hereby
reopened. The United States is ordered to respond to the Petition to Quash within 60 days from the
date this Order is issued. See FED . CIV . R. 12(a)(2). 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.2
IT IS SO ORDERED.

Dated: April 8, 2013

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

2

28 U.S.C. § 1915(a)(3) provides: “An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.”
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