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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARVIN R. PERRY,

Case No. 2:09-mc-50129

Petitioner,

v. HON. DENISE PAGE HOOD

(Magistrate Judge Steven D. Pepe)

UNITED STATES OF AMERICA;

THE COMMISSIONER OF INTERNAL

REVENUE; SHERRY DANIELS – 

REVENUE AGENT,

Respondents.

 /

ORDER

I. INTRODUCTION

Before the Court is Petitioner’s Petition to Quash Summons, filed on February 10, 2009.

Also, before the Court is Respondent’s Motion to Dismiss, filed on June 22, 2009. Petitioner did

not file a Response to Respondent’s Motion to Dismiss. A hearing on these matters was held on

August 19, 2009. Respondents’ counsel was present and argued on behalf of the Respondents. Also

present was Respondent-Revenue Agent Sherry Daniels. Petitioner failed to appear at the hearing.

II. STATEMENT OF FACTS

Petitioner, Marvin R. Perry, filed this action on February 10, 2009, seeking to quash five

third-party Internal Revenue summonses issued respectively to Douglas Company (in Holland, OH),

to Chemical Bank (in Midland, MI), to Huntington National Bank (in Columbus, OH), to Michigan

Educational Credit Union (in Plymouth, MI), and to Ann Arbor Housing Commission (in Ann

Arbor, MI). Revenue Agent Sherry Daniels, a Respondent in this matter, avers that she is

conducting an examination of the tax liability of Petitioner for calendar years 2005, 2006, and 2007.

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See Resps.’ Mot. to Dism., Ex. 1, Dec. of Sherry Daniels. Respondent Daniels further declares that

she served all five administrative summonses on January 15, 2009, and that said summonses directed

the entity identified to give testimony and produce certain documents for an examination scheduled

for February 9, 2009 at 9:00 a.m. Id. Respondent Daniels further declares that she gave notice to

Petitioner on January 15, 2009 by sending a copy of each summons to him by certified mail to his

last known address. Id., and Attachment A. 

III. APPLICABLE LAW & ANALYSIS

Respondent has brought the present motion pursuant to Federal Rule of Civil Procedure

12(b)(1) of the Federal Rules of Civil Procedure, asserting that this Court lacks subject matter

jurisdiction because Petitioner did not file his petition to quash within the time limit set forth in the

Internal Revenue Code, which requires that a petition to quash be filed within twenty (20) days from

the date that notice is given. See 26 U.S.C. § 7609(b)(2)(A). In the alternative, Respondent also

argues that this Court lacks subject matter jurisdiction with respect to two of the Internal Revenue

summonses as these third-parties reside out of district and the Internal Revenue Code requires that

the petition to quash be filed in the district court within which the summoned person resides or is

found. See 26 U.S.C. § 7609(h)(1). Lastly, Respondent asserts that even if this Court has subject

matter jurisdiction over this matter, dismissal is appropriate because the United States Attorney has

not been properly served with process, as such, this Court lacks personal jurisdiction over

Respondents. 

Turning to Respondents’ first two arguments, the Court notes that dismissal is appropriate

under Rule 12(b)(1) if the Court lacks subject matter jurisdiction over the Plaintiff’s claims. See

Fed. R. Civ. P. 12(b)(1). “Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1),

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the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater

Cleveland Reg’l Autho., 895 F. 2d 266, 269 (6th Cir. 1990). The Court first considers the United

States Respondents’ Rule 12(b)(1) motion, since challenges brought pursuant to any other section

of Rule 12 become moot if this Court lacks subject matter jurisdiction. Id.

Title 26 of the United States Code authorizes the Internal Revenue Service to examine

relevant documentation and summon third-party recordkeepers in possession of pertinent

information when investigating the tax liability of an individual. See 26 U.S.C. § 7602(a). The

individual who is the subject of third-party summonses is entitled to notice that the summonses have

been served. See 26 U.S.C. § 7602(c). Notice is sufficient if “mailed by certified or registered mail

to the last known address of such person . . . .” 26 U.S.C. § 7609(a)(2). “Such notice must be

accompanied by a copy of the summons which has been served on the third-party recordkeeper and

must contain an explanation of the taxpayer’s right to bring a proceeding to quash the summons.”

Clay v. United States, 199 F.3d 876, 878 (6th Cir. 1999) (citing 26 U.S.C. § 7609(a)(1)). “The

recipient of notice of the summons may then file a petition to quash the summons . . . .” Id. (citing

26 U.S.C. § 7609(b)(2)(a)). 26 U.S.C. § 7609(b)(2)(a) states:

In general. Notwithstanding any other law or rule of law, any person who is entitled

to notice of a summons under subsection (a) shall have the right to begin a

proceeding to quash such summons not later than the 20th day after the day such

notice is given in the manner provided in subsection (a)(2).

26 U.S.C. § 7609(b)(2)(a). 

Section 7609 further provides that the petition to quash summons shall be filed in the district

within which the person summoned resides or is found. See 26 U.S.C. § 7609(h)(1) (“The United

States district court for the district within which the person to be summoned resides or is found shall

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 The Court notes that in Shisler v. United States, 199 F. 3d 848 (6th Cir. 1999), the Sixth

Circuit explained that “[t]he purpose of sections 7609(a) and (b)(2)(A) is to allow the noticee to

bring a petition to quash within twenty days by giving him notice that his bank has been

summoned . . . relating to the noticee’s financial affairs.” Id. at 851. In Shisler, the court found

that the “purpose of the statute was clearly fulfilled” as the petitioner received “notice of the

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have jurisdiction to hear and determine any proceeding [to quash].”) According to the third-party

summonses attached to Respondent Daniels’ declaration, two of the third-parties, Douglas

Company, 1716 Perrysburg-Holland Rd., Holland, OH 43528, and Huntington National Bank, 7

Easton Oval EA4W34, Columbus, OH 43219 are located outside of this district. See Resps.’ Mot.

to Dism., Ex. 1, and Attachment A. Accordingly, this Court will dismiss Petitioner’s petition to

quash as to these third-parties pursuant to § 7609(h)(1); see also, Beck v. United States, No. 02-

6184, 2003 WL 1194253, * 2 (6th Cir. March 7, 2003) (affirming district court’s dismissal of the

petitioners’ petition because none of the third-party recordkeepers resided or could be found within

the Eastern District of Kentucy.) 

Respondent next argues that Petitioner’s petition to quash the summons is untimely pursuant

to section 7609 because Petitioner did not file his petition until February 10, 2009, six days beyond

the February 4, 2009 deadline for filing his petition. He was given notice of the third-party

summonses on January 15, 2009. The twenty day limit contained in section 7609(b)(2)(a) is a

jurisdictional requirement. See Clay, 199 F. 3d at 880 (finding that the district court properly

dismissed petitioner’s petition to quash third-party recordkeeper summonses based on a lack of

jurisdiction, since the petitioner filed the petition two days after the twenty day time limit).

This Court agrees with Respondent that it lacks subject matter jurisdiction over Petitioner’s

petition, as it was filed beyond the twenty day time limit set forth in section 7609(b)(2)(a). As such,

dismissal of this proceeding is appropriate and Respondents’ Motion to Dismiss is GRANTED.1 The

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summonses and an explanation of petitioners’ right to bring a motion to quash . . . .” Id. The

Court further notes that Respondents’ Motion to Dismiss originally failed to provide any

evidence that Petitioner was provided an explanation of his right to bring a proceeding to quash

the third-party summonses. As such, the Court held a hearing the following day, on August 20,

2009, and requested that Respondents produce evidence that Petitioner was provided with notice

of his right to bring a motion to quash. 

On August 24, 2009, Respondents filed a Notice of Filing Supplemental Declaration of

Revenue Agent in support of its Motion to Dismiss. See Dkt. No. 5. Respondent Daniels

declares that when she gave notice to Petitioner of the third-party summonses, she also provided

instructions for preparing a petition to quash plus copies of the relevant statutory provisions of

Sections 7609 and 7602 et seq. Id. As such, the Court is satisfied that the purpose of sections

7609(a) and (b)(2)(A) have been met and dismissal for lack of subject matter jurisdiction is

warranted. 

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Court will not address Respondents’ last argument that this Court lacks personal jurisdiction over

Respondents because of Petitioner’s failure to effect proper service pursuant to Federal Rule of Civil

Procedure 4(i). 

V. CONCLUSION 

Accordingly, 

IT IS ORDERED that Respondents’ Motion to Dismiss [Docket No. 2, filed June 22, 2009]

is GRANTED. 

IT IS FURTHER ORDERED that Petitioner’s Petition to Quash Summons [Docket No. 1,

filed February 10, 2009] is DISMISSED WITH PREJUDICE. 

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: September 15, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

and Marvin R. Perry, P. O. Box 7102, Ann Arbor, MI 48107 on September 15, 2009, by electronic

and/or ordinary mail.

S/William F. Lewis 

Case Manager

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