United States District Court, D. Delaware
Wilmington, this 18 day of April, 2019, having reviewed the
petition to quash third party summons filed by Petitioner
Anthony James Floyd ("Petitioner"), as well as the
papers filed in connection therewith, it appears the petition
to quash (D.I. 2) should be DISMISSED for
the reasons that follow:
who proceeds pro se, resides in Texas. On August 27,
2018, Internal Revenue Service Special Agent Robert De Los
Santos served a third-party summons on Bank of America N.A.,
seeking records related to Petitioner's accounts with
that institution. Petitioner filed a motion to quash the
summons on the basis that it was issued without any legal
authority or legitimate purpose and solely to harass him.
courts are obliged to address subject matter jurisdiction
sua sponte. Meritcare, Inc. v. St. Paul Mercury Ins.
Co., 166 F.3d 214, 217 (3d Cir. 1999), abrogated on
other grounds, Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546 (2005). If the court lacks subject
matter jurisdiction, it must dismiss the complaint because it
lacks the power to hear the case. See Fed. R. Civ.
P. 12(b)(1); Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Therefore,
as a threshold matter, the Court must determine if
subject-matter jurisdiction exists. See Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006) (federal courts
"have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party"); accord, Tristani ex rel.
Karnes v. Richman, 652 F.3d 360, 364 (3d Cir. 2011).
"The United States and its agencies enjoy immunity from
suit except insofar as Congress has enacted legislation
effecting an unequivocal waiver." Upton v.
I.R.S., 104 F.3d 543, 545 (2d Cir. 1997). With regard to
the instant case, under 26 U.S.C. § 7609, Congress
created a discrete and limited waiver of that immunity solely
for the purpose of permitting a taxpayer to "quash an
administrative summons served on a third-party
recordkeeper." Id. (internal quotations
7609 authorizes and governs both the issuance of IRS
summonses and petitions to quash summonses. Section
7609(b)(2) sets forth the proper procedure for quashing a
third-party summons, as follows:
Proceeding to quash.-
(A) In general.- Notwithstanding any other law or rule of
law, any person who is entitled to notice of a summons under
subsection (a) shall have the right to begin a proceeding to
quash such summons not later than the 20th day after the day
such notice is given in the manner provided in subsection
(a)(2). In any such proceeding, the Secretary may seek to
compel compliance with the summons.
(B) Requirement of notice to person summoned and to
Secretary.-lf any person begins a proceeding under
subparagraph (A) with respect to any summons, not
later than the close of the 20-day period referred to in
subparagraph (A) such person shall mail by registered or
certified mail a copy of the petition to the person summoned
and to such office as the Secretary may direct in the notice
referred to in subsection (a)(1).
26 U.S.C. § 7609(b)(2) (emphasis added). As set forth in
the emphasized portion of the statute, a petitioner must
serve by registered or certified mail a copy of the petition
upon the person summoned and the IRS office designated by the
Secretary within 20 days after notice of the summons.
Section 7609 is a conditional waiver of the United
States' sovereign immunity and, therefore, courts must
construe its requirements strictly. See Faber v. United
States,921 F.2d 1118, 1119 (10th Cir. 1990).
"Failure to comply with § 7609(b)(2)(B) is a
jurisdictional defect." Wade v. Internal Revenue
Serv.,208 F.3d ...