Mollison v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NICOLE VENTO MOLLISON,  No. 07-16035
Plaintiff-Appellant,
v.  D.C. No.
CV-06-00725-HDM
UNITED STATES OF AMERICA,
OPINION
Defendant-Appellee.


RICHARD VENTO, 
Plaintiff-Appellant, No. 07-16048
v.  D.C. No.
CV-06-00722-
UNITED STATES OF AMERICA, HDM/RAM
Defendant-Appellee.


NICOLE VENTO MOLLISON, 
Petitioner-Appellant, No. 07-16070
v.  D.C. No.
UNITED STATES OF AMERICA, CV-06-00726-HDM
Respondent-Appellee.

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding

7117
7118 MOLLISON v. UNITED STATES
Submitted March 11, 2009*
San Francisco, California

Filed June 15, 2009

Before: Sidney R. Thomas and Jay S. Bybee, Circuit Judges,
and Roger T. Benitez,** District Judge.

Opinion by Judge Thomas

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
7120 MOLLISON v. UNITED STATES

COUNSEL

Edward Robbins, Jr. and Heather K. Lee, Hochman, Salkin,
Rettig, Toscher & Perez, P.C., Beverly Hills, California, for
the appellants.

Andrea R. Tebbets and Ivan C. Dale, United States Depart-
ment of Justice, Washington, D.C., for the appellees.

OPINION

THOMAS, Circuit Judge:

This appeal presents the question of whether the district
court had jurisdiction over a motion to quash a third-party
summons issued by the United States Internal Revenue Ser-
vice (“IRS”) served on the United States more than twenty
days after the notice of summons was issued. We conclude
that, although a party filing a motion to quash must com-
mence a proceeding to quash the summons within twenty
days after the notice is given, the party is permitted 120 days
to serve the motion on the United States.

I

Richard Vento and his daughter Nicole Vento Mollison
(“the Ventos”) have claimed residency in the United States
 MOLLISON v. UNITED STATES 7121
Virgin Islands since 2001. They filed income tax returns only
with the Virgin Islands Bureau of Internal Revenue and not
with the IRS from 2002-2004. IRS Agent Jackie Moss con-
ducted an investigation into the Ventos’ tax liabilities for
those years, and she sent summonses to three entities in
Incline Village, Nevada, seeking information about the Ven-
tos. Moss sent notice of the summonses to the Ventos on
December 8, 2006, in accordance with 26 U.S.C.
§ 7609(a)(1). The Ventos subsequently: (1) filed petitions to
quash the summonses in the District Court for the District of
Nevada on December 27, 2006; (2) mailed each petition by
registered or certified mail to the person summoned and the
IRS agent whose name and address were shown on the face
of the summonses on or before December 28, 2006; and (3)
mailed the petitions to the United States Attorney’s Office for
the District of Nevada on January 4, 2007.

The government filed motions to dismiss the petitions argu-
ing that the Ventos failed to serve the petitions on the United
States within twenty days of receiving notice of the summon-
ses as required by § 7609(b)(2)(B). The Ventos contended
that, under Federal Rule of Civil Procedure 4(m), they only
needed to serve the United States within 120 days.1 The dis-
trict court found that the Secretary of the Treasury directed
service on the United States in the notice of the summonses,
and that the Ventos were therefore required to serve the
United States within twenty days. Because the Ventos failed
to do so, the district court held that it lacked jurisdiction to
consider the claims and granted each of the government’s
motions to dismiss. We review questions of subject-matter
jurisdiction and statutory interpretation de novo. Ponsford v.
United States, 771 F.2d 1305, 1308 (9th Cir. 1985).
1
The government concedes that the Ventos did properly serve the
United States within 120 days of filing the petitions to quash.
7122 MOLLISON v. UNITED STATES
II

Although the government urged the district court to dismiss
for lack of jurisdiction for failure to timely serve the petition,
it concedes on appeal that its position was mistaken. The gov-
ernment now agrees that the only persons to whom a petition
to quash a third-party summons must be mailed within twenty
days of the notice of the summons are the summoned person
and the IRS officer named on the face of the summons. The
government concedes that, under the appropriate reading of
the governing statute and rules, service of the petition upon
the United States is not subject to the twenty day rule, but can
be accomplished within 120 days of the notice of summons.

We agree with the parties’ construction. However, to
explain the underlying rationale, some background discussion
is appropriate.

[1] The IRS has broad investigatory powers to determine
tax liability. See 28 U.S.C. §§ 7601-7610. One such power is
the authority:

[t]o summon the person liable for tax or required to
perform the act, or any officer or employee of such
person, or any person having possession, custody, or
care of books of account containing entries relating
to the business of the person liable for tax or
required to perform the act, or any other person the
Secretary may deem proper, to appear before the
Secretary at a time and place named in the summons
and to produce such books, papers, records, or other
data, and to give such testimony, under oath, as may
be relevant or material to such inquiry[.]

26 U.S.C. § 7602(a)(2).

[2] The target of the investigation “shall have the right to
begin a proceeding to quash such summons not later than the
 MOLLISON v. UNITED STATES 7123
20th day after the day such notice is given . . . .” 26 U.S.C.
§ 7609(b)(2)(A). When a person begins a proceeding to quash
a third-party summons, “such person shall mail by registered
or certified mail a copy of the petition to the person sum-
moned 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)(B).

Section 7609(b)(2) constitutes the government’s consent to
waive sovereign immunity and subject itself to a legal chal-
lenge in court. “Jurisdiction over any suit against the Govern-
ment requires a clear statement from the United States
waiving sovereign immunity, together with a claim falling
within the terms of the waiver.” United States v. White Moun-
tain Apache Tribe, 537 U.S. 465, 472 (2003) (citations omit-
ted). “[L]imitations and conditions upon which the
Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied.” Soriano v. United
States, 352 U.S. 270, 276 (1957).

[3] In conducting our analysis, “[w]e start, as we must, with
the language of the statute.” Bailey v. United States, 516 U.S.
137, 144 (1995). Here, the statute specifically directs a peti-
tioner, within twenty days of receiving notice of a summons,
to “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)(B). The question in this case then is
whether the United States qualifies as “such office as the Sec-
retary may direct.”

[4] The form identified in § 7609(b)(2)(B) is IRS Form
2039. See I.R.S. Manual 25.5.3.2, available at http://
www.irs.gov/irm/part25/ch05s03.html. Form 2039 explains
the necessary procedures to follow in order to file a petition
to quash an IRS summons. The relevant portion of Form 2039
states:
7124 MOLLISON v. UNITED STATES
9. Your petition must be served upon the appropri-
ate parties, including the United States, as
required by Federal Rule of Civil Procedure 4.

10. At the same time you filed your petition with
the court, you must mail a copy of your peti-
tion by certified or registered mail to the per-
son summoned and to the IRS. Mail the copy
for the IRS to the officer whose name and
address are shown on the face of this summons.
See 7609(b)(2)(B).

Only Paragraph 10 references § 7609(b)(2)(B), and that para-
graph deals with mailing a copy of the petition to the person
summoned and the IRS officer shown on the face of the sum-
mons. The United States, however, is never mentioned.
Instead, the United States is mentioned in Paragraph 9, which
deals with serving the petition upon the United States “as
required by Federal Rule of Civil Procedure 4.” Federal Rule
of Civil Procedure 4(i) outlines the requirements for serving
the United States, and Federal Rule of Civil Procedure 4(m)
provides for a 120 day period within which to serve a party,
including the United States.

[5] The logical reading of the plain language then is that a
petitioner must mail the petition to quash to the third-party
identified in the summons and to the IRS officer shown on the
face of the summons within twenty days, and she must serve
the United States within 120 days as required by Rule 4(m).
This conclusion is strengthened by the applicable treasury
regulations and the legislative history for § 7609. The Trea-
sury Regulations provide that:

In order to institute a proceeding to quash a sum-
mons the notified person . . . must, not later than the
20th day following the day the notice of the sum-
mons was served on or mailed to such notified per-
son:
 MOLLISON v. UNITED STATES 7125
(i) File a petition to quash in the name of the noti-
fied person in a district court having jurisdiction,

(ii) Notify the Service by sending a copy of that
petition by registered or certified mail to the Service
employee and office designated to receive the copy
in the notice of summons that was given to the noti-
fied person, and

(iii) Notify the recordkeeper by sending to that
recordkeeper by registered or certified mail a copy of
the petition.

26 C.F.R. § 301.7609-3(b)(2)(i)-(iii).2

The Treasury Department does not reference the United
States in the step-by-step directions it implemented regarding
petitions to quash third-party summonses.

Additionally, in passing the Tax Reform Act of 1976, Con-
gress stated that it
2
26 C.F.R. § 301.7609-3(b)(2) was slightly altered and moved to 26
C.F.R. § 301.7609-4(b)(2) on April 30, 2008. It now states:
To institute a proceeding to quash a summons, a person entitled
to notice of the summons must, not later than the 20th day fol-
lowing the day the notice of the summons was served on or
mailed to such person—
(i) File a petition to quash a summons in the name of the person
entitled to notice of the summons in the proper district court;
(ii) Notify the Internal Revenue Service (IRS) by sending a copy
of that petition to quash by registered or certified mail to the IRS
employee and office designated in the notice of summons to
receive the copy; and
(iii) Notify the summoned person by sending by registered or cer-
tified mail a copy of the petition to quash to the summoned per-
son.
7126 MOLLISON v. UNITED STATES
expects that the [IRS] will prepare a summary of the
noticee’s rights under these provisions in layman’s
language, and that a copy of this summary will be
enclosed with each copy of the certified notice, so
that taxpayers and other noticees will not lose their
right to intervention due to inadvertence or igno-
rance of their rights.

S. Rep. No. 94-938, at 369 (1976), reprinted in 1976
U.S.C.C.A.N. 3439, 3799.

It would take a strained reading of the statute and support-
ing documents to find the requirement to serve the United
States within twenty days in any language, let alone “lay-
man’s language” that a taxpayer is supposed to be able to read
and understand so she does not “lose [her] right to interven-
tion due to inadvertence or ignorance of [her] rights.”

[6] Congress could have required a petitioner to mail the
petition to the United States within twenty days if it wished,
but did not do so. The plain language of the statute, the legis-
lative history, and the implementing regulations are in accord
that the only persons to whom a petition to quash a third-party
summons must be mailed within twenty days of the notice of
the summons are the summoned person and the IRS officer
named on the face of the summons. Under the appropriate
reading of the governing statute and rules, service of the peti-
tion upon the United States is not subject to the twenty day
rule, but can be accomplished within 120 days of the notice
of summons, as required by Federal Rule of Civil Procedure
4(m).

[7] The Ventos properly mailed the petitions to Moss and
the third-parties within twenty days, and they served the
United States within 120 days. The district court therefore had
jurisdiction to consider the Ventos’ claims. Thus, pursuant to
the joint request of the parties, we must reverse the district
 MOLLISON v. UNITED STATES 7127
court’s grant of the government’s motion for dismissal for
lack of jurisdiction.

REVERSED AND REMANDED.