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United States v. Meyer

United States District Court, D. Minnesota

February 17, 2017

United States of America, Plaintiff,
v.
Joseph D. Meyer, Defendant.

          Hilarie E. Snyder, Esq., United States Department of Justice, Washington, DC, on behalf of Plaintiff.

          Joseph D. Meyer, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. BACKGROUND

         On 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 No. 20].

         The 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.

         On 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.

         The 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.

         On 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.

         II. DISCUSSION

         A. Motion to Dismiss

         Meyer's 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.

         B. Summary Judgment

         The 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 ...


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