Hinman, Noel B. v. Grzesiowski, Mark L.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2006*
Decided June 2, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4594
NOEL B. HINMAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Indiana, South Bend Division
v.
No. 3:05-CV-049 RM
MARK L. GRZESIOWSKI,
Defendant-Appellee. Robert L. Miller, Jr.,
Chief Judge.
ORDER
Noel B. Hinman filed this pro se lawsuit, alleging that an agent of the Internal
Revenue Service violated his due process rights. The district court denied Hinman’s
claims on the merits, and Hinman appeals.
*
After an examination of the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is submitted on the
appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 05-4594 Page 2
In September 2002 the IRS issued Hinman a notice that it planned to levy on
his property as payment for unpaid income taxes for the years 1988 through 1995.
Hinman requested an administrative hearing under 26 U.S.C. § 6330(b) to dispute
his tax liability. After an exchange of letters the IRS denied his request, explaining
that Hinman had raised only “frivolous” issues that did not warrant a face-to-face
hearing. The IRS, however, scheduled a telephone conference for November 4, 2004.
Hinman declined to participate. The IRS subsequently issued Hinman a final notice
of determination, informing him of its intent to levy on his property and advising
him that if he wanted to challenge the determination further he should petition the
Tax Court within 30 days.
Instead of filing a petition with the Tax Court, Hinman filed this suit in the
district court. He alleged that the IRS agent in his case violated his right to due
process by denying him a face-to-face hearing. Purporting to invoke jurisdiction
under 28 U.S.C. §§ 1331, 1361, and 1391, Hinman asserted that the suit did not
challenge the underlying tax liability or the IRS’s collection efforts. His suit sought
1) a declaration that Grzesiowski’s denial of a face-to-face conference violated § 6330
and Hinman’s due process rights; and 2) an injunction ordering Grzesiowski and the
IRS to “provide a fair hearing . . . for all assessments, penalties and interest against
Plaintiff for tax years 1988 through 1995, inclusive.”
In lieu of an answer, Grzesiowski filed a motion to dismiss for lack of
jurisdiction. See Fed. R. Civ. P. 12(b)(1). The district court denied his motion,
reasoning that Hinman had pleaded facts sufficient to invoke mandamus jurisdiction
under 28 U.S.C. § 1361. The district court then ordered briefing on the merits but
ultimately denied the writ after determining that Hinman “could have and should
have raised his due process arguments with the Tax Court.”
We begin with an evaluation of federal jurisdiction. In general, the Tax Court
has exclusive jurisdiction over any case involving disputed income taxes. See 26
U.S.C. § 6330(d); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004); Marino v.
Brown, 357 F.3d 143, 145 n.5 (1st Cir. 2004). Hinman argues that jurisdiction rests
with the district court because his case does not involve disputed taxes per se but
only his right to a due process hearing and, specifically, his request for an order
requiring the IRS agent to “do his job.” But, as he recites in his complaint, he seeks a
hearing for the express purpose of challenging his underlying income tax deficiency:
he wants a “fair hearing” to contest the “assessments, penalties and interest against
[him] for tax years 1988 through 1995.” As we have previously instructed, only the
Tax Court has jurisdiction to hear a challenge to the procedures employed by the
IRS Appeals Office in determining tax liability. Voelker, 365 F.3d at 581-82 (citing
True v. Comm’r, 108 F. Supp. 2d 1361, 1364 (M.D. Fla. 2000)).
No. 05-4594 Page 3
Thus the district court’s determination that Hinman should have raised his
claim in the Tax Court was correct, but the case must be resolved without reaching
the merits. Accordingly, we modify the judgment of the district court to reflect
dismissal for lack of jurisdiction.
AFFIRMED as MODIFIED.