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DOROTHEA C. ASBURY, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.

ORDER OF COURT

GARY LANCASTER, U.S.D.J.

This is an appeal from a proposed tax levy and collection under the Internal Revenue Code. Plaintiff appeals on the basis that the defendant "has abused its discretion and has otherwise acted improperly in refusing to entertain a settlement or other compromise of its proposed tax levy and collection under Internal Revenue Code, section 6320 et seq." Complaint ¶ 5. By this action, plaintiff conveys the impression that the IRS. has a legal obligation to compromise its action with her. Plaintiff has failed to cite to any code provision or regulation in support of this position.

Moreover, the only mechanism by which the IRS may compromise a tax case before referral to the Department of Justice is pursuant to 26 U.S.C. § 7122. Section 7122 clearly states that the Secretary may compromise any civil or criminal tax case prior to referral to the Department of Justice. The decision to accept or reject a compromise offer, however, is discretionary and cannot "be compelled by any action."Addington v. U.S., 75 F. Supp.2d 520, 524 (S.D. W. Va. 1999); see also Carroll v. IRS, 14 A.F.T.R. 2d (RIA) 5564 (E.D.N.Y. 1964)

Accordingly, plaintiff fails to state a claim for which relief can be granted. Defendant's motion to dismiss is granted.

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ASBURY v. INTERNAL REVENUE SERVICE, (W.D.Pa. 2001)
(Nov 2, 2001)