733 F.Supp. 1444 (W.D.Okl. 1990), CIV-89-2270, Selman v. United States

Docket Nº:CIV-89-2270-A.
Citation:733 F.Supp. 1444
Party Name:Robert E. SELMAN and Pauline Selman, Plaintiffs, v. UNITED STATES of America, Defendant.
Case Date:March 29, 1990
Court:United States District Courts, 10th Circuit, Western District of Oklahoma

Page 1444

733 F.Supp. 1444 (W.D.Okl. 1990)

Robert E. SELMAN and Pauline Selman, Plaintiffs,


UNITED STATES of America, Defendant.

No. CIV-89-2270-A.

United States District Court, W.D. Oklahoma.

March 29, 1990

Timothy M. Larason, John F. Fischer, Andrews, Davis, Legg, Bixler, Milsten & Price, Oklahoma City, Okl., for plaintiffs.

Timothy D. Leonard, U.S. Atty., Oklahoma City, Okl., for defendant.


ALLEY, District Judge.


Before the Court for determination is the Motion to Dismiss by the United States. The government asserts there is no subject matter jurisdiction for two reasons. First, 28 U.S.C. § 1346(a)(1) grants jurisdiction to district courts only to hear cases involving tax that was erroneously or illegally collected, and not cases involving abatement of interest already paid. Second, there is no right of judicial review because the applicable tax section, 26 U.S.C. § 6404(e)(1), is committed to agency discretion and there is no law to apply. The plaintiffs, Robert and Pauline Selman, assert that § 1346(a)(1) does indeed extend to abatement of interest, even though the statute only mentions "tax," based on a Connecticut district court case which recognized subject matter jurisdiction when construing § 1346(a)(1) with an unrelated IRS provision. As another basis for § 1346(a)(1) jurisdiction, the Selmans urged in a creative argument that the Court equate "illegal"

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and "erroneous" with "abuse of discretion," thus somehow bootstrapping judicial review under the Administrative Procedures Act to § 1346(a)(1).

The Selmans further assert that the "no law to apply" doctrine from Overton Park is fatally flawed and should not be followed. Alternatively, if Overton Park is followed, the Selmans assert that there is law to apply found buried in the legislative history. That "law to apply" is a standard of whether failure to abate interest would be "widely perceived as unfair."

Thus, the issue before the Court is whether § 1346(a)(1) grants subject matter jurisdiction to district courts to hear cases regarding IRS failure to abate interest, and whether district courts may review actions of the IRS when it refuses to abate interest under § 6404(e)(1).


The first statute on which defendant relies for its argument of lack of subject matter jurisdiction is 28 U.S.C. § 1346(a)(1). That section gives...

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