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Thayer v. Internal Revenue Service

April 24, 2007

WILLIAM THAYER, PLAINTIFF,
v.
INTERNAL REVENUE SERVICE DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

This matter comes before the Court upon the motion for summary judgment of Defendant Internal Revenue Service ("IRS"). This case involves the challenge of Plaintiff William Thayer, appearing pro se, to the results of a collection due process hearing before the IRS claiming that he was denied due process by the IRS' hearing officer's failure to provide Plaintiff with sufficient time to prepare and accumulate the necessary documents prior to the hearing. For the reasons discussed below, summary judgment will be granted in favor of Defendant Internal Revenue Service.

I. BACKGROUND

A. Facts Related to the Administrative Proceedings

On October 14, 2004, the IRS issued to Plaintiff a notice of intent to levy regarding his liability for trust fund recovery penalties for periods ending June 30, 1988, June 30, 1989, March 21, 1990, and September 30, 1991. (Declaration of Edith Dermody ¶ 3.) On November 14, 2004, the IRS received from Thayer a request for a collection due process ("CDP") hearing under 26 U.S.C. 6330.*fn1 (Id. ¶ 4.) Settlement Officer Edith Dermody, who had no prior involvement with the outstanding tax liabilities, was assigned to conduct the hearing. (Id. ¶ 5.)

On July 20, 2005, Dermody sent Thayer a letter scheduling a CDP for August 24, 2005 and suggested that the hearing by held by telephone and stated she would call Plaintiff's power-of-attorney (Henry M. Ricci) at his office, but also gave Plaintiff the option of having a face-to-face conference. (Id. ¶ 6.) In her letter to Plaintiff, Dermody requested that, in advance of the hearing, Plaintiff send her a completed Form 433-A (Collection Information Statement) by August 5, 2005 and a signed copy of his 2004 income tax return by August 15, 2005. (Id.) She sent a copy of this letter to his representative, Mr. Ricci. (Id.) Plaintiff never sent Dermody the requested documents prior to the hearing. (Id. ¶ 7.)

At the time set for the August hearing, Dermody called Ricci's office and Ricci informed her that he no longer was represented Thayer. (Id.) Later that day, Dermody received a message from Steven Goldman, an individual that informed her that he would be representing Plaintiff. He requested additional time to review the matter, which was granted and Dermody left a voice-mail message with Goldman in which she requested that he submit the appropriate form (Form 2848) under which he could be the Power of Attorney and represents Plaintiff regarding the tax liabilities at issue. (Id. ¶ 8.)

Dermody never received a response from Goldman. As a result, on September 12, 2005, Dermody sent Plaintiff a second letter offering him a final opportunity for a hearing, tentatively scheduling a hearing for September 28, 2005. (Id. ¶ 9, Ex. B.) Dermody also requested that he submit the documents she had previously requested (a Collection Information Statement and a signed copy of his 2004 income tax return) by September 26, 2005 and asked Plaintiff to contact her if he had any question. Dermody never received a power of attorney authorizing Goldman to represent Plaintiff and according to her affidavit, Plaintiff never contacted her to request an adjournment of the hearing. (Id. ¶ 10.)

After failing to hear from Plaintiff, Dermody verified that the requirements of the applicable laws and administrative procedures were met and determined that a federal tax levy balanced the need for efficient tax collection with Plaintiff's concern that any collection action be no more intrusive than necessary. (Id. ¶¶ 11-12.) Next, on October 21, 2005, the IRS's Appeals Office issued a Notice of Determination in which the proposed levy against Thayer's property was sustained. (Id. ¶ 13, Ex. C.)

In his Complaint, Plaintiff states that on or before September 24, 2005, the Plaintiff sent the IRS the requested "1040 forms for 2004 as well as a letter explaining his need for additional time due to an automobile accident in which he sustained a head injury." (Compl. ¶ 6.) Plaintiff states that, due to a serious automobile accident which occurred in May of 1995, he required an extension of time to file the materials needed for the CDP hearing.

B. Procedural History

Plaintiff filed his Complaint in this Court on November 21, 2005 seeking what appears to be reconsideration of the IRS' determination regarding the proposed levy against Plaintiff. Defendant IRS moved for summary judgment on September 25, 2006.

[Docket Item No. 14.] After considerable delay, Plaintiff filed his opposition to the Defendant's ...


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