Quashing an IRS Summons—Make Sure to Cross Your T’s and Dot Your I’s

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Quashing an IRS Summons

The United States District Court for the Western District of Tennessee recently issued an order dismissing a taxpayer’s petition to quash an IRS summons.[1] The case provides a lesson in the importance of certain rules that arise in the context of litigating with the government–particularly in the context of seeking to quash an IRS summons.  The court’s order found that the Petitioner had failed to properly serve the Government with a motion to quash, leaving the court without jurisdiction to adjudicate the merits of the IRS’s motion to dismiss.

 

The taxpayer filed a petition to quash an IRS summons, arguing that the summons was untimely and that work product privilege protected the documents at issue. In addition, the motion stated a claim against an IRS revenue agent for malicious prosecution. After his original petition was dismissed, the petitioner filed a motion to reconsider with a copy of an envelope reflecting a postmark date that rendered the summons untimely.

The Government, in turn, moved to dismiss the petition, arguing that it should be dismissed under Fed. R. Civ. Pro. 12(b)(5) for failure to properly serve the United States. Under Rule 12(b)(5), service on the United States must be accomplished by serving “(1) the appropriate United States Attorney or United States attorney’s office, and (2) the Attorney General of the United States at Washington D.C.” (citing Fed. R. Civ. Pro. 4(i)(1)).

Rather than fulfill the requirements of 4(i)(1), Petitioner mailed a copy of the petition to quash the summons directly to the IRS agent. Having failed to serve the U.S. Attorney for the Western District of Texas and the Attorney General of the United States, the court concluded that the petitioner had failed to properly serve the petition to quash on the United States.

Noting that insufficient service may be excused if good cause is shown by “offer[ing] an explanation equivalent to ‘at least as much as would be required to show excusable neglect,’” (citations omitted), the court concluded that Petitioner had failed to file a response to the motion to dismiss alleging good cause for improper service on the Government. In addition, he did not appear at the motion hearing to address the insufficient service of process. Consequently, the court found that Petitioner failed to establish good cause to excuse insufficient service.

As a result, the court dismissed the petition to quash the summons for insufficient service of process. Noting that “[d]ue process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties” (citations omitted), the court found itself stripped of jurisdiction to decide the merits of the petition to quash summons.

 

 

[1] Order Dismissing Pet. to Quash Summons, Matthews v. U.S., No. 2:20-mc-002-TLP-jay (W.D. Tenn. Feb. 18, 2020).

 

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