NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2008*
Decided July 28, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1225
RICHARD WOS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 C 474
UNITED STATES OF AMERICA,
Defendant‐Appellee. Ronald A. Guzmán,
Judge.
O R D E R
Richard Wos sued the United States claiming that the Internal Revenue Service did
not provide him with a “collection due process hearing” before proceeding with efforts to
collect unpaid income taxes. The district court dismissed the suit for lack of subject‐matter
jurisdiction. We affirm that decision.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. FED. R. APP. P.
34(a)(2).
No. 08‐1225 Page 2
Wos was here once before protesting the assessment of income taxes for tax years 1996
and 1997. He claimed then that he provided an “even exchange” of services for money in
those years and thus had not actually generated any “income” subject to tax. The Tax Court
rejected this frivolous contention, and so did we. Wos v. CIR, 110 Fed. App’x 689, 691 (Aug.
31, 2004).
This time Wos is trying to thwart collection of the taxes assessed for those years. In
the summer of 2004, shortly before we issued our last decision, the IRS notified Wos of its
intent to levy against his property. Wos was advised that under 26 U.S.C. § 6330 that he
could request a “collection due process hearing” to raise concerns about the proposed levy.
Wos instead requested a “face to face conference” for “verification of the tax liability.” The
IRS denied this request as frivolous because the underlying liability no longer was subject to
challenge. See 26 U.S.C. § 6330(c)(2)(B). Wos was informed, however, that he could
resubmit his request for an in‐person hearing if he would agree to limit the discussion to the
payment process, but otherwise he would be limited to communicating with the IRS in
writing or by telephone. Wos, though, continued to press for an in‐person hearing to
contest liability, and eventually the IRS Office of Appeals issued a determination
authorizing the collection to proceed.
Within 30 days of that determination, Wos filed a civil action in the district court
naming the United States as a defendant. Essentially he claimed that the IRS had violated
§ 6330 and denied him due process by refusing his demand for a face‐to‐face hearing to
contest the levy. The district court dismissed the action for lack of subject‐matter
jurisdiction, reasoning that jurisdiction lies exclusively in the Tax Court.
Wos previously advanced a number of jurisdictional theories that the district court
appropriately rejected. Now in this court he apparently acknowledges that what he really
seeks to achieve thorough his lawsuit is a “face to face” hearing which, in his view, was
required under § 6330. The district court’s conclusion that it lacks jurisdiction to address
this question is reviewed de novo by this court. See St. John’s United Church of Christ v. City
of Chi., 502 F.3d 616, 625 (7th Cir. 2007); Small v. Chao, 398 F.3d 894, 897 (7th Cir. 2005).
Under § 6330, the IRS must tell taxpayers that they can request a “collection due
process hearing” before the agency will proceed with a proposed levy. 26 U.S.C.
§ 6330(a)(1)‐(3). The taxpayer “may raise at the hearing any relevant issue related to the
unpaid tax or the proposed levy,” id. § 6330(c)(2)(A), but he cannot challenge “the existence
or amount of the underlying tax liability” unless he “did not receive any statutory notice of
deficiency . . . or did not otherwise have an opportunity to dispute such tax liability,” id.
§ 6330(c)(2)(B); see also Kindred v. CIR, 454 F.3d 688, 695 (7th Cir. 2006). Under the version of
§ 6330 in effect when Wos sued, if the Office of Appeals concluded that the intended levy
No. 08‐1225 Page 3
should go forward, then the taxpayer could “appeal such determination—(A) to the Tax
Court (and the Tax Court shall have jurisdiction with respect to such matter); or (B) if the
Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the
United States.” 26 U.S.C. § 6330(d)(1) (2000).2
The “party invoking federal jurisdiction bears the burden of demonstrating its
existence.” Hart v. FedEx Ground Pkg. Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006). Wos did
not meet his burden. The applicable version of § 6330 gives the Tax Court jurisdiction to
review levy determinations if it has jurisdiction, as it does in this case, over the underlying
tax liability. See 26 C.F.R. § 301.6330‐1(f)(2) Q & A F3 (2006); Wagenknecht v. United States,
No. 06‐4161, 2008 WL 2663754, at *4 (6th Cir. July 9, 2008); Downing v. CIR, 118 T.C. 22, 27,
2002 WL 15574 (T.C. 2002); accord Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004) (per
curiam) (holding that “a case involving [unpaid] income taxes . . . must be filed with the Tax
Court” and affirming district court’s dismissal on jurisdiction grounds of taxpayer’s claim
that IRS violated due process in determining income tax liability). And because the Tax
Court had jurisdiction, the district court properly found that its jurisdiction was lacking. See
26 U.S.C. § 6330(d)(1)(B); Wagenknecht, 509 F.3d at 734.
Accordingly, the judgment is AFFIRMED.
2
The authorization for appeal has changed since Wos filed suit. The current version
omits all reference to the district court and instead provides that a taxpayer may “appeal
such determination to the Tax Court (and the Tax Court shall have jurisdiction over such
matter).” 26 U.S.C. § 6330 (d)(1).