REMOLE v. INTERNAL REVENUE SERVICE

MICHAEL P. McCUSKEY, U.S.D.J.

On July 2, 2001, the defendant, United States of America, filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (#6) along with an accompanying Memorandum of Law In Support (#7). The plaintiffs have never filed a response to the motion; consequently, the Court considers the material facts stated in the memorandum to be true and correct.

It is undisputed that plaintiff Frances Remole ("Frances") never requested a Section 6330 hearing from the Internal Revenue Service ("IRS"). 26 U.S.C. § 6330. Consequently, there was no notice of determination concerning collection actions issued under Section 6320 and/or 6330. Thus, there was nothing for review under Section 6330(d). Accordingly, defendant's Motion to Dismiss (#6) as to plaintiff Frances Remole is GRANTED. The law is clear that this Court has no jurisdiction to hear any of her claims against the defendant.

Plaintiff Delbert Remole ("Delbert") did request a Section 6330 hearing before the IRS. However, Delbert has only attacked the amount of unpaid tax liability not the merits of the tax assessment. Delbert had an opportunity to dispute the tax assessment in the appeal process before the IRS but failed to avail himself of that opportunity. Consequently, the merits of Delbert's tax liability, including the amount of the liability, were not properly the subject of a collection due process hearing. Accordingly, those issues are not subject to review by this Court in a Section 6330(d) judicial review proceeding. 26 U.S.C. § 6330 (d). In addition, Delbert has asked this Court to consider documents that were not furnished to the IRS appeals officer during the collection due process hearing. As such, those documents are not part of the administrative record and cannot be considered by this Court.

For the reasons stated, this Court dismisses the action as to Frances and affirms the determination of the IRS appeals officer as to Delbert. Consequently, defendant's Motion for Summary Judgment (#6) against plaintiff Delbert Remole is GRANTED because there are no material facts in dispute and the law does not support plaintiffs cause of action in any way.

IT IS HEREBY ORDERED:

1. Defendant's Motion to Dismiss (#6) the claims filed by plaintiff Frances Remole is GRANTED.

2. Defendant's Motion for Summary Judgment against plaintiff Delbert Remole is GRANTED.

This case is terminated.