[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 30, 2007
No. 06-13925 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00160-CV-FTM-99-SPC
SHERI REDEKER-BARRY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 30, 2007)
Before TJOFLAT, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Sheri Redeker-Barry (“Barry”), proceeding pro se, petitions this court to
review the Internal Revenue Service’s (“IRS”) denial of a Collections Due Process
Hearing (“CDPH”) in connection with a determination of income tax liability.
Because the U.S. Tax Court has exclusive jurisdiction over claims relating to
income tax liability, the district court properly determined that it lacked subject-
matter jurisdiction over the petition. Accordingly, we affirm.
Barry filed a pro se petition in the District Court for the Middle District of
Florida, seeking review of the IRS’s denial of a CDPH following the IRS’s
determination of income tax owed. She alleged that the IRS’s actions deprived her
of her constitutional rights to due process and protection from improper seizures
when it denied her request for a face-to-face CDPH. The IRS had denied the
hearing, finding her claims were frivolous, and issued its notice of determination,
in which it informed Barry that she could appeal to the U.S. Tax Court if she
disagreed with the determination. Barry did not file an appeal with the Tax Court,
but instead filed the instant petition in the district court.
The government moved to dismiss the petition on the ground that the district
court lacked subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), citing Peterson v.
Kreidich, 139 Fed. Appx. 134 (11th Cir. 2005) (unpublished), in which this court
dismissed identical claims. In response, Barry alleged that the court had
jurisdiction to hear the substantial constitutional issues raised in her petition, citing
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Schultz v. IRS, 413 F.3d 297 (2d Cir. 2005). The district court dismissed the
petition for lack of subject-matter jurisdiction.
On appeal, Barry asserts that the court had jurisdiction under Schultz, and
that this court must address the jurisdictional issue. She distinguished Peterson on
the ground that Peterson was not entitled to a CDPH because his request was
untimely, and the equivalent hearing, to which Peterson was entitled, was not
subject to judicial review. She then argues the merits of her due process and
seizure claims, and she challenges the IRS’s determination of her tax liability and
the use of Form 1040 as in violation of the Paperwork Reduction Act.
We review questions of subject-matter jurisdiction de novo. Palmer v.
Braun, 376 F.3d 1254, 1257 (11th Cir. 2004).
Under the Internal Revenue Code, the IRS may issue a lien and place a levy
on a person’s property to collect unpaid taxes. 26 U.S.C. §§ 6213, 6321, 6331(a).
However, the IRS cannot levy property to collect until it notifies the taxpayer of
the right to a CDPH.1 26 U.S.C. §§ 6320(a), 6330(a); Roberts v. Comm’r, 329
F.3d 1224, 1227 (11th Cir. 2003).
When the IRS issues its notice of determination following the CDPH
hearing, the taxpayer may appeal the decision within 30 days, and this appeal must
1
The CDPH request must be made within 30 days of the notice to be timely. 26 U.S.C.
§ 6330(a). There is no dispute in this case that the request was timely.
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be filed in the Tax Court.2 26 U.S.C. § 6330(d)(1). The Tax court has jurisdiction
over challenges to an IRS determination of income tax liability. 26 U.S.C.
§§ 6212(a), 6213(a), 7442.
Here, Barry timely requested the CDPH after receiving notice of the lien.
But after the IRS denied the hearing, Barry did not appeal to the Tax Court.
Instead, she filed her petition in the district court. Because the Tax Court had
exclusive jurisdiction over the petition, as Barry challenged the procedures in
connection with the underlying tax liability, the court properly dismissed the
petition for lack of subject-matter jurisdiction.
There is no merit to Barry’s claim that the constitutional issues vest
jurisdiction in this court. We are persuaded by the reasoning of the other circuits
that have addressed this claim and concluded that an alleged due process violation
does not confer subject-matter jurisdiction on the district court if the underlying
claim involves income tax issues.3 Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir.
2
Such appeal must be filed in Tax Court unless the Tax Court “does not have jurisdiction
of the underlying tax liability,” in which case the appeal is filed in district court. 26 U.S.C.
§ 6330(d). In this case, the Tax Court would have jurisdiction on the underlying income tax
liability. 26 U.S.C. § 6330(d).
3
This court has addressed the issue in an unpublished opinion, which is not binding.
Peterson, 139 Fed. Appx. at 136. We further conclude that Barry’s argument that Peterson is
distinguishable has no merit. The holding of that case stands for the proposition that the Tax Court
retains jurisdiction over constitutional claims that relate to determinations of the underlying tax
liability.
4
2004) (holding that the district court lacked subject matter jurisdiction over
appellant’s due process challenge relating to his CDPH because the Tax Court has
jurisdiction over cases involving income taxes); Marino v. Brown, 357 F.3d 143,
146 (1st Cir. 2004) (holding that the Tax Court had exclusive jurisdiction over tax
protester’s challenge to notice of determination upholding lien based on her
income tax liability); Martin v. C.I.R., 756 F.2d 38, 40 (6th Cir. 1985) (holding
that although appellant asserted constitutional violations, the claim was one for
determination of his income tax liability, which is properly within the jurisdiction
of the Tax Court).
Moreover, Barry misunderstands the Second Circuit’s decision in Schultz.
In that case, the court held that a taxpayer was entitled to judicial review before
facing penal consequences for refusal to adhere to IRS summons. In contrast, the
instant case does not pose penal consequences, and Barry has a proper remedy
before the Tax Court. Should she find it necessary to appeal the decision of the
Tax Court, she may bring her claims before this court after that decision. Fed. R.
App. P. 13.
Accordingly, the district court properly dismissed the petition for lack of
subject-matter jurisdiction, and we AFFIRM.
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