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
matter is before the undersigned United States District Judge
for a ruling on Plaintiff United States of America’s
(the “Government”) Motion for Summary Judgment
[Docket No. 47] and Defendant Joseph D. Meyer’s
(“Meyer”) Motion for Summary Judgment [Docket No.
53]. For the reasons set forth below, the Government’s
Motion is granted and Meyer’s Motion is denied.
March 25, 2016, the Government commenced this civil tax
collection action, asserting that Meyer owes $110,352.74 in
outstanding federal income tax liabilities for tax 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].
Government and Meyer both move for summary judgment. The
Government seeks a judgment to enforce Meyer’s unpaid
federal income tax liabilities. Meyer seeks an order holding
that the tax assessments levied for tax years 2002 and 2009
Tax Year 2002
did not timely file a federal income tax return for tax year
2002. First Kofoid Decl. [Docket No. 50] ¶ 8. As a
result, the Internal Revenue Service (“IRS”)
computed Meyer’s tax obligation through third parties
such as employers and financial institutions. Id. On
April 30, 2004, the IRS sent Meyer a letter explaining its
tax computation. Id. Attach. 3. The IRS determined
that Meyer owed $43,554.20 in tax, $14,086.17 in penalties,
and $2,884.27 in interest, for a total of $60,524.64.
2, 2008, Meyer filed a $40,000 offer in compromise with the
IRS in an effort to resolve his tax liabilities. First Kofoid
Decl. ¶ 9; Attach. 5. By letter of October 29, 2008, the
IRS rejected Meyer’s offer because “[t]he amount
offered is less than your reasonable collection potential. .
. . Based on the financial information you submitted, we have
determined you can pay the amount due in full.”
Id. Attach. 6. Meyer administratively appealed the
rejection, which was upheld on September 30, 2009. First
Kofoid Decl. ¶ 10.
Tax Year 2009
did not file a federal income tax return for tax year 2009.
Id. ¶ 8. As with the 2002 return, the IRS
computed Meyer’s tax obligation. Id. Attach.
1. By letter of November 13, 2012, the IRS informed Meyer
that for tax year 2009 he owed $23,469.30 in tax, $9,425.31
in penalties, and $2,773.91 in interest, for a total of
The Present Motions
Government seeks entry of judgment to establish Meyer’s
tax liabilities for tax years 2002 and 2009. Inclusive of
interest, the Government contends that Meyer now owes
$57,790.60 for tax year 2002 and $43,333.46 for tax year
2009, for a total of $101,124.06. Meyer does not dispute the
amount of tax the IRS claims he owes. Instead, Meyer argues
that the Government failed to follow Internal Revenue Code
(“I.R.C.”) §§ 6212(a) and 6213(a),
which requires the IRS to mail a notice of deficiency
(“NOD”) to a taxpayer prior to initiating
proceedings to assess a tax deficiency. Meyer argues that the
Government’s failure to mail a NOD for tax years 2002
and 2009 invalidates the tax assessments. Thus, the present
Motions turn on whether the Government properly mailed a NOD
for tax years 2002 and 2009.
Summary Judgment Standard
56(a) of the Federal Rules of Civil Procedure provides that
summary judgment shall be rendered if there exists no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law. On a motion for
summary judgment, the court views the evidence in the light
most favorable to the nonmoving party. Ludwig v.
Anderson, 54 F.3d 465, 470 (8th Cir. 1995). However, the
nonmoving party may not “rest on mere allegations or
denials but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.”
Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th
6203 of the I.R.C. provides that a tax assessment
“shall be made by recording the liability of the
taxpayer in the office of the Secretary in accordance with
rules or regulations prescribed by the Secretary.” The
IRS must send a NOD to the taxpayer’s “last known
address” by certified mail or registered mail before it
assesses liability for unpaid taxes. I.R.C. §§
6212(a), (b)(1); see also Wiley v. United States, 20
F.3d 222, 224 (6th Cir. 1994) (“Under the provisions of
the Internal Revenue Code, the IRS must mail a notice of
deficiency by certified or registered mail before it can make
an assessment for delinquent taxes, which in turn is a
prerequisite to seizing and selling the taxpayer’s
property.”) (quotations omitted). If the IRS fails to
prove that it properly mailed a NOD, any tax assessment based
upon that notice is invalid. I.R.C. § 6213(a); see
also Hoyle v. Comm’r, 131 T.C. 197, 205 (2008).
Government has the burden of proving by “competent and
persuasive” evidence that a NOD was sent to the
taxpayer. Bobbs v. Comm’r, T.C. Memo.,
2005–272, 2005 WL 3157919, at *2 (U.S. Tax Ct. Nov. 28,
2005) (citing Coleman v. Comm’r, 94 T.C. 82,
90, 1990 WL 16337 (1990)). “This notice of deficiency
is often referred to as the ‘ninety day letter’
because after mailing this notice, the IRS must give the
taxpayer ninety days to petition the Tax Court ...