Rand v. US
| Decision Date | 15 April 1993 |
| Docket Number | No. 92-CV-6215L.,92-CV-6215L. |
| Citation | 818 F. Supp. 566 |
| Parties | Martin W. RAND, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of New York |
Martin Rand, pro se.
Brian McCarthy, Asst. U.S. Atty., Eugene Rossi, for U.S.
AMENDED DECISION AND ORDER
Plaintiff, proceeding pro se, brought this action seeking to quiet title to his property, by having a United States Government ("Government") tax lien removed from it. Plaintiff alleges that the government failed to follow proper procedures when it levied upon his property. Plaintiff moves to compel the Government to produce copies of certain tax levy and lien notices. The government moves to dismiss the plaintiff's complaint for lack of subject matter jurisdiction, or, in the alternative, that summary judgment be granted in its favor.
This matter was originally referred to me by District Judge David G. Larimer, by order dated July 31, 1992, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). The parties subsequently executed a Consent to Proceed Before a United States Magistrate Judge on September 22, 1992, pursuant to 28 U.S.C. § 636(c).
The following constitutes my decision and order denying plaintiff's motion to compel, dismissing his complaint and granting defendant's summary judgment motion.
On April 2, 1992, the Internal Revenue Service ("IRS") filed a Notice of Federal Tax Lien against the plaintiff with the Monroe County Clerk. The government filed the lien in the amounts of its assessments made against the plaintiff on July 16, 1990, April 1, 1991 and December 16, 1991, for income tax years 1986, 1987 and 1988, respectively. See Statement of Undisputed Material Facts, annexed to Defendant's Motion for Summary Judgment (docket entry # 4); Complaint. The plaintiff does not challenge the tax liability underlying these assessments. Complaint, ¶ 7. Rather, he alleges that the government "did not follow current proper procedures when they placed a lien/levy on his property." Id. After the government filed the lien, plaintiff brought this quiet title action, pursuant to 28 U.S.C. § 2410.
In response to the plaintiff's first request for production of documents, the government sent plaintiff copies of the summary records of assessments made against him, and the certified mail listings showing that the statutory notices of deficiency listed in the Certificates of Assessments and Payments ("Certificates") were also sent to him. See Letter to plaintiff, dated August 24, 1992, annexed as Exh. 1 to Defendant's Second Response to Plaintiff's Document Request ("Second Response") (docket entry # 10). Not satisfied with the certified mail listing, plaintiff moved to compel production of the actual hard copies of the notices and demands for payments. At the oral argument of these motions, held on September 8, 1992, I ordered the defendant to respond to plaintiff's request to the extent that it possessed the documents in question. The defendant filed its Second Response on September 28, 1992, in which it informed the court that the IRS did not retain hard copies of the notices and demands for payments or the notices of intent to levy.
The Federal Rules of Civil Procedure apply to discovery disputes. Rule 26(b)(1) governs the scope and limits of discovery and provides in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Thus, "the scope of discovery under Fed. R.Civ.P. 26(b) is very broad." Maresco v. Evans Chemetics, 964 F.2d 106, 114 (2d Cir. 1992). The "key phrase in this definition is `relevant to the subject matter involved in the pending action.'" Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978) (quoting Fed.R.Civ.P. 26(b)(1)). Relevancy has been defined for discovery purposes as "any matter that bears on, or that reasonably could relate to other matters that could bear on any issue that is or may be the case." Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 389, 91 L.Ed. 451 (1947). Thus, even though the court is "to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than it would in reviewing a pleading submitted by counsel," Platsky v. CIA, 953 F.2d 26, 28 (2d Cir.1991), "it is relevancy of the subject matter which is the test," In re Surety Association of America, 388 F.2d 412, 414 (2d Cir.1967).
Under this standard, it is clear that the documents plaintiff seeks are relevant to his action. Plaintiff argues that he is entitled to copies of these notices pursuant to 26 C.F.R. § 301.6203-1. Plaintiff's Response to Answer of Defendant ("Response to Answer"), p. 2 (docket entry # 6). This regulation contains the following provision:
If the taxpayer requests a copy of the record of assessment, he shall be furnished with a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character or the liability assessed, the taxable period, if applicable, and the amounts assessed.
26 C.F.R. § 301.6203-1. See Hughes v. United States, 953 F.2d 531, 538 (9th Cir. 1992) (). This information is contained in "the summary record of assessment," 26 C.F.R. § 301.6203-1, copies of which were provided to plaintiff in response to his first request.
In Gentry v. United States, 962 F.2d 555 (6th Cir.1992), the Sixth Circuit rejected the plaintiffs' contention "that they were entitled to obtain all original documents used by the IRS to prepare the summary record," and it found that the IRS' selection of certificate of assessments and payments "as the means for providing information specified" by statute and regulation complied with Treasury Regulations 26 C.F.R. § 301.6203-1. Id. 962 F.2d at 558. See also United States v. Chila, 871 F.2d 1015, 1017 (11th Cir.1989), cert. denied, 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501 (1989) ().
I find that the government has adequately complied with plaintiff's request for documents. With respect to the copies of the actual notices and demands for taxes, the regulations clearly show that the government is not required to furnish plaintiff with these documents, nor can it be compelled to produce documents not in its possession. Accordingly, plaintiff's motion to compel is denied.
The government argues that plaintiff's quiet title action cannot be maintained pursuant to 28 U.S.C. § 2410 because he failed to identify any property in his complaint that is affected by the federal tax lien. In response, plaintiff filed an amended complaint (docket entry # 7), which this court treated as a motion to amend. The motion to amend was subsequently granted on September 8, 1992. In the amendment, plaintiff sets out the description of his property located at 127 Alphonse Street, Rochester, New York, as well as the title number of his motor vehicle. Thus, due to plaintiff's proper pleading, this prong of defendant's argument has no merit.
The motion to dismiss for lack of subject matter jurisdiction and on the ground of sovereign immunity is similarly denied. Plaintiff does not challenge the validity of the underlying tax assessments. Rather, he challenges the procedures used by the government when it made the assessments and levied on his property. "When the taxpayer challenges the procedural regularity of the tax lien and the procedures used to enforce the lien, and not the validity of the tax assessment, sovereign immunity is waived and the district court does have jurisdiction over a quiet title action." Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990). It is true that 28 U.S.C. § 2410 "does not allow a taxpayer to challenge the validity of the underlying tax assessment in district court." Montgomery v. United States, 933 F.2d 348, 349 (5th Cir.1991); Arford v. United States, 934 F.2d 229, 232 (9th Cir.1991) (same); Brewer v. United States, 764 F.Supp. 309, 314 (S.D.N.Y.1991) (same). But 28 U.S.C. § 2410(a) "permits a party to challenge procedural irregularities in the assessment process." Johnson v. United States, 990 F.2d 41, 42 (2d Cir.1993). Consequently, "the alleged failure of the IRS to assess properly or to send valid notices of assessment and demands for payment are procedural defects cognizable in a quiet title suit." Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir.1992). Because plaintiff's quiet title action pursuant to 28 U.S.C. § 2410 is directed to the propriety of the procedures used, the United States has waived its sovereign immunity to be sued. Johnson v. United States, 990 F.2d at 42; Kulawy v. United States, 917 F.2d 729, 733 (2d Cir.1990); Guthrie v. Sawyer, 970 F.2d at 737; Hughes v. United States, 953 F.2d at 539; Arford v. United States, 934 F.2d at 232; Montgomery v. United States, 933 F.2d at 349. Defendant's motion to dismiss for lack of jurisdiction under 28 U.S.C. § 2410 is therefore denied.
The rules applicable to summary judgment motions recently have been restated by the Supreme Court as follows:
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