FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICOLE VENTO MOLLISON, 

No. 07-16035 Plaintiff-Appellant,

D.C. No.

v.  CV-06-00725-HDM

UNITED STATES OF AMERICA,

OPINION Defendant-Appellee. 

RICHARD VENTO, 

No. 07-16048 Plaintiff-Appellant,

D.C. No. v. 

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
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. 

7118 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 Department 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 Service (“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 commence 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

7120 MOLLISON v. UNITED STATES
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 conducted 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 Ventos. 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 arguing that the Ventos failed to serve the petitions on the United

States within twenty days of receiving notice of the summonses 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 district 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).

1The government concedes that the Ventos did properly serve the

United States within 120 days of filing the petitions to quash. 

MOLLISON v. UNITED STATES 7121
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 government 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

7122 MOLLISON v. UNITED STATES
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 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).

Section 7609(b)(2) constitutes the government’s consent to

waive sovereign immunity and subject itself to a legal challenge in court. “Jurisdiction over any suit against the Government 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 Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citations omitted). “[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 petitioner, 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 Secretary 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:

MOLLISON v. UNITED STATES 7123
9. Your petition must be served upon the appropriate 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 petition by certified or registered mail to the person 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 paragraph deals with mailing a copy of the petition to the person

summoned and the IRS officer shown on the face of the summons. 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 Treasury Regulations provide that:

In order to institute a proceeding to quash a summons the notified person . . . must, not later than the

20th day following the day the notice of the summons was served on or mailed to such notified person:

7124 MOLLISON v. UNITED STATES
(i) File a petition to quash in the name of the notified 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 notified 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, Congress 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 following 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 certified mail a copy of the petition to quash to the summoned person. 

MOLLISON v. UNITED STATES 7125
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 ignorance 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 supporting documents to find the requirement to serve the United

States within twenty days in any language, let alone “layman’s language” that a taxpayer is supposed to be able to read

and understand so she does not “lose [her] right to intervention 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 legislative 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 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, 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

7126 MOLLISON v. UNITED STATES
court’s grant of the government’s motion for dismissal for

lack of jurisdiction. 

REVERSED AND REMANDED.

MOLLISON v. UNITED STATES 7127