United States District Court, Southern District of Illinois
October 21, 1986
GEORGE H. EDWARDS, SR., AND LAURA EDWARDS, PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Stiehl, District Judge:
MEMORANDUM AND ORDER
Initially, it is Ordered that plaintiffs' petition is amended
to show United States of America as the proper defendant,
striking the U.S. Department of Internal Revenue Service.
The plaintiffs filed a petition May 9, 1986, for the return of
a Mercedes-Benz that was seized from the plaintiffs' son April
15, 1985, due to the son's failure to pay taxes. The plaintiffs
contend the car belongs to them and not to their son. The issue
before the Court is whether the plaintiffs have filed their
petition within the time allowed by 26 U.S.C. § 6532(c).
The United States of America has filed a motion to dismiss, and
in the alternative a motion for summary judgment. Because the
Court must look to the affidavit of plaintiff, Laura Edwards, to
determine whether the plaintiffs have filed their petition in
time, the Court must treat the government's motion as a motion
for summary judgment. Fed.R.Civ.P. 12. Movant must show there is
no genuine issue of any material fact and that it is entitled to
a judgment as a matter of law. Fed.R.Civ.P. 56. The Court must
view the evidence, and with reasonable inferences drawn in the
light most favorable to the party opposing summary judgment, find
a lack of a genuine issue of material fact, and that movant is
entitled to judgment in its favor as a matter of law.
International Administrators, Inc. v. Life Insurance Co. of
North America, 753 F.2d 1373, 1378 (7th Cir. 1985).
Once the moving party has met this burden, the opposing party
must assert the existence of material fact. To do this, the
non-movant must set forth specific facts showing there is a
genuine issue of fact. Posey v. Skyline Corp., 702 F.2d 102, 105
(7th Cir.) cert. denied. 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d
336 (1983). Further, the disputed fact must be material, that is,
outcome determinative. Egger v. Phillips, 710 F.2d 292, 296 (7th
Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78
L.Ed.2d 262 (1983).
In this case, the government states that a petition to return
wrongfully levied property by an owner other than the taxpayer
must be filed within nine months of the levy. 26 U.S.C. § 6532
(c)(1). This nine month filing period may be extended by the
claiming party filing a request, in which case the filing period
is extended for a period of twelve months from the filing of the
request. 26 U.S.C. § 6532(c)(2).
This request, however, must be in writing, and comply with all
the other provisions of 26 C.F.R. Sec. 301.6343-1(b) (1986).
To determine whether there was such a compliance, we must look
to the record, and particularly to the affidavit of plaintiff,
Laura Edwards. Plaintiffs contend that a written request was made
when plaintiffs exhibited a bill of sale to Fred Moser, a Revenue
Officer in the Collection Division of the Office of the District
Director of the Internal Revenue Service. However, merely showing
a bill of sale or title to a revenue officer does not raise it to
the dignity of a "written request", as defined by 26 C.F.R. Sec.
301.6343-1(b)(2) (1986). That regulation requires a written
request addressed to the District Director of the Internal
Revenue Service. Clearly, showing a written document such as a
title or bill of sale to an I.R.S. official cannot be considered
a written request for the return of levied property.
Secondly, plaintiffs state the I.R.S. had a duty to tell them
that their oral requests would not toll the filing period, citing
26 C.F.R. Sec. 301.6343-1(b)(3) (1986).
However, this section deals only with written requests as defined
in 26 C.F.R. Sec. 301.6343-1(b)(2) (1986). Because neither the
plaintiffs' petition, their memorandum in opposition to the
motion for summary judgment, nor Mrs. Edwards' affidavit state
that a written request was made to the District Director, 26
C.F.R. Sec. 301.6343-1(b)(3) (1986) is not applicable here.
The government has met its burden by showing that the filing
period in this case is nine months, and that the plaintiffs'
complaint was not filed until approximately thirteen months after
seizure of the disputed property. The plaintiffs have failed to
set forth specific facts showing why the filing period should be
extended. The government has shown there is no genuine issue of
material fact and that it is entitled to judgment as a matter of
For these reasons, defendant's Motion for Summary Judgment is
GRANTED. The Court directs the Clerk to enter judgment for the
defendant and against the plaintiffs.
IT IS SO ORDERED.
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