United States District Court, D. Minnesota
Hilarie E. Snyder, Esq., United States Department of Justice,
Washington, DC, on behalf of Plaintiff.
D. Meyer, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
March 25, 2016, Plaintiff United States of America commenced
this tax collection action, asserting that Defendant Joseph
D. Meyer (“Meyer”) owes $110, 352.74 in
outstanding federal income tax liabilities for the years 2002
and 2009. Compl. [Docket No. 1] ¶¶ 7, 8. On April
13, 2016, Meyer denied the substantive allegations in the
Complaint and asserted a Counterclaim. See Answer
Compl. Countercl. [Docket No. 6]. Meyer's Counterclaim
was dismissed on July 19, 2016. See Order [Docket
Government additionally contends that Meyer has not filed an
income tax return for tax years 2013, 2014, and 2015. Phipps
Decl. [Docket No. 32] ¶ 2. Revenue Agent Nancy J. Phipps
(“Agent Phipps”), the Agent assigned to
investigate Meyer's tax filings, learned that Meyer
opened an account with Bremer Bank in June 2015. Id.
¶ 10. On September 19, 2016, in furtherance of her
investigation into Meyer's tax delinquencies for tax year
2015, Agent Phipps issued a summons to Bremer Bank,
requesting banking records for tax year 2015. Id.
Prior to issuing the summons, Agent Phipps provided Meyer
with “Publication 1, Your Rights as a Taxpayer, ”
which stated that “we sometimes talk with other persons
if we need information that you have been unable to provide,
or to verify information we have received.”
Id. ¶ 6.
October 11, 2016, Meyer filed a Petition to Quash IRS Third
Party Summons [Docket No. 22] (“Petition”). In
the Petition, which names the United States, the Internal
Revenue Service (“IRS”), and Agent Phipps as
Respondents, Meyer argues that he was not provided with
advance notice that third parties would be contacted, as
required by 26 U.S.C. § 7602(c)(1) and (2). Meyer also
argues that the summons: 1) was issued while a referral for
criminal prosecution was pending; 2) was issued in bad faith;
3) will cause Meyer's records to be tuned over to the IRS
in violation of banking and constitutional law of the United
States and Minnesota; and 4) was not issued to aid in the
collection of a tax assessment.
Government filed a Motion to Dismiss and Motion for Summary
Judgment [Docket No. 29]. The Government argues that the IRS
and Agent Phipps should be dismissed from the Petition, and
that the Petition should be summarily denied because it lacks
merit. Argument on the Government's Motions was scheduled
for February 14, 2017.
February 14, 2017, Hilarie E. Snyder from the United States
Department of Justice appeared on behalf of the Government.
Meyer, who is proceeding pro se, did not make an appearance.
The motions were therefore taken under advisement on the
written submissions of the parties.
Motion to Dismiss
Petition names the United States, IRS, and Agent Phipps as
Respondents. When, as here, the Petition's complaints are
directed at actions taken by an IRS employee in her official
capacity, the claims are actually against the United States
and not the employee or its agency. See Atkinson v.
O'Neil, 867 F.2d 589, 590 (10th Cir. 1989)
(“When an action is one against named individual
defendants, but the acts complained of consist of actions
taken by defendants in their official capacity as agents of
the United States, the action is in fact one against the
United States.”); see also Fisher v. United
States, 676 F.Supp.2d 1165, 1168 (W.D. Wash. 2009).
Therefore, the IRS and Agent Phipps are dismissed as
Respondents in this action.
Government argues that Meyer's Petition should be
summarily denied. The Government argues that dismissal is
appropriate because it has established a prima facie case
that the summons was issued in good faith, and Meyer has
failed to carry ...