Nardini v. US, Civ. A. No. 87-988-Mc.
Decision Date | 16 December 1987 |
Docket Number | Civ. A. No. 87-988-Mc. |
Citation | 676 F. Supp. 389 |
Parties | Michael J. NARDINI, Mary Nardini and Michael J. Nardini, D.D.S., P.C., Petitioners, v. UNITED STATES of America, Respondent. |
Court | U.S. District Court — District of Massachusetts |
Parisi, DeLorenzo, Gordon, Pasquariello & Weiskopf, Eric A. Tepper, Schenectady, N.Y., for petitioners.
Joseph S. Ackerstein, Asst. U.S. Atty., David H. Dickieson, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for respondent.
This is a Rule 12 motion to dismiss a petition to quash an Internal Revenue Service summons. The petition was brought pursuant to 26 U.S.C. § 7609(b)(2) which deals with proceedings to quash summonses served on third party recordkeepers. No oral argument was heard, the parties having agreed to submission on the papers.
The facts are not in serious dispute. According to copies of documents provided by the United States, on March 24, 1984 an IRS summons was served upon Attorney Louis F. Giovanni requiring an appearance and production of documents relating "to the petitioners Michael J. Nardini, Mary Nardini, and/or Michael J. Nardini, D.D.S., P.C. regarding real estate transactions for the years 1981, 1982, 1983, and 1984...." Notice of service of summons was sent to the petitioners by certified mail on March 26, 1987.
A similar IRS summons was served on the law firm of Hayes and Hayes on March 25, 1987. Notice of this service was sent to plaintiffs by certified mail on March 26, 1987 also.
There is considerable lack of cohesiveness in the materials and arguments on both sides. Nonetheless, the central dispute, and the issue which I find to be dispositive, is whether or not petitioners have complied with the statutory time limit for filing their petition to quash. If they did not, there is no subject matter jurisdiction and we need go no further.
Section 331(a) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) is codified in 26 U.S.C. § 7609(b)(2). Under the predecessor statute to § 7609 a taxpayer who received notice of a summons which had been served on a third party recordkeeper could stay compliance with that summons simply by sending a certified letter to the third party recordkeeper and the IRS. Unlike its predecessor § 7609(b)(2) prescribes procedures which require the taxpayer to demonstrate an appropriate reason for obtaining a stay of compliance:
Subsection (a) reads, in pertinent part:
The question we must answer is whether Mr. Nardini and/or the United States complied with these requirements. We will assume for the moment, without deciding, that the summonses were served upon third-party recordkeepers. It also seems safe to assume that there were no irregularities in the service itself or in the notice given to Mr. Nardini. So much appears on the face of the summons and is not disputed.
The next move was up to Mr. Nardini. § 7609(b)(2)(A) gave him 20 days in which to file a petition to quash. That petition was filed on April 20, 1987, some 25 days after notice was sent to Mr. Nardini by certified mail.
Mr. Nardini contends that the purpose of § 7609(b)(2) is to give him 20 days from receipt of notice to file a petition to quash. He cites two cases, Grisham v. United States, 578 F.Supp. 73 (S.D.N.Y.1983) and Fogelson v. United States, 579 F.Supp. 573 (D.Ka...
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