UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
LARRY FREEMAN )
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Plaintiff, )
)
v. ) Case No. 5:0xxx
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UNITED STATES OF AMERICA, and )
COUNTRYWIDE HOME LOANS ) PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS
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Respondents. )
_______________________________________)
Plaintiff, hereby files this Opposition to the U.S. Governments Motion to Dismiss the Petition to Quash Summons for lack of subject matter jurisdiction and states as follows:
1. This court has jurisdiction over this case because Countrywide Home Loans does do business in the Southern District of Georgia. Internal Revenue Service officer James C. Farley issued an IRS summons to Countrywide Home Loans on October 8, 2008. Petitioner received notice of the IRS summons on October 14, 2008 and filed a timely petition to quash the summons on October 23, 2008.
2. Section 7609 of the Internal Revenue Code authorizes a taxpayer to file a petition to quash an IRS summons issued to a third party. Jurisdiction over the petition to quash lies in the district court for the judicial district in which the person summoned “resides or is found”. Section 7609(h) provides as follows:
h) Jurisdiction of district court; etc.
(1) Jurisdiction
The United States district court for the district within which the person to be summoned resides or is found shall have jurisdiction to hear and determine any proceeding brought under subsection (b)(2), (f), or (g). An order denying the petition shall be deemed a final order which may be appealed.
3. This court has jurisdiction in this matter because the summoned party does do business and does have offices within the Southern District of Georgia. In fact, Countrywide Home Loans does have an office at 307 Village at Glynn Place, Brunswick, GA, 31525. Countrywide also has an office in Savannah, GA, the same city that the Assistant US Attorney has his office location. If the Assistant US Attorney can bring this case under this jurisdiction due to his location, it stands to reason that since the summoned party holds offices in both Savannah, GA and Brunswick, GA, both of which are in the Southern District of Georgia, that this court has subject matter jurisdiction simply by virtue of the way the Assistant US Attorney has filed his Motion to Dismiss. The summoned party can be found in this jurisdiction and this Court has subject matter jurisdiction over this case.
4. Respondent has stated in his Motion to dismiss several times that the “summoned party” is a part of the Countrywide Home Loans corporation in California. The Respondent claims the purpose of the summons was to obtain records kept in California. Petitioner never lived in California and has never done business with any employee of Countrywide Home Loans in California. All of the Petitioner’s dealings with Countrywide has been at the Brunswick, GA, office location. It is unclear to the Petitioner why the summons was directed toward a branch of the company that has never done business with the Petitioner.
5. Respondent argues that the petitioner has not shown or alleged that a Countrywide branch in the Southern District of Georgia is in possession of the books, papers, records and other data that are demanded in the IRS summons. The Respondent then argues that in the absence of such a showing, Countrywide Home Loans branch offices in the Southern District of Georgia cannot be considered the equivalent of the summoned party in California that does possess such materials. (See Respondent’s Motion to Dismiss; and Memorandum of Law in Support of the Respondent’s Motion to Dismiss, p.7) Plaintiff argues that it is not his responsibility to prove whether or not the records exist in any location. The purpose of the summons is to determine if the records exist. It stands to reason it is the Respondent’s responsibility to properly determine first if the offices in the Southern District of Georgia possess the records the IRS seeks before laying responsibility on the Plaintiff to prove that they do not exist. Because Countrywide Home Loans is a large corporation, doing business in many jurisdictions, all of its branches and officers work to uphold and support the corporation as a whole. Therefore, the branches in Georgia are as much the company as the research offices in California.
6. It also stands to reason that each local branch keeps local records of the individuals it serves within its own offices and also would have more relevant, personal knowledge of those clients than the office in California, who has never meet with the Petitioner. Respondent argues that “Congress has conferred upon the IRS the duty to make inquiries, determinations, and assessments of all taxes and has correspondingly given the IRS expansive information-gathering authority, including the power to compel disclosure, for that purpose”. (See Respondent’s Motion to Dismiss; and Memorandum of Law in Support of the Respondent’s Motion to Dismiss, p.3) Petitioner does not argue the authority given by Congress to the IRS to gather information. In fact, Petitioner argues that summoning the local offices of Countrywide Home Loans would assist the IRS better in fulfilling this duty and authority.
7. Respondent also argues that Section 7609 is a waiver of the United States’ sovereign immunity. “A proceeding to quash is, in effect, a civil suit against the United States, as sovereign, is immune from suit without its consent.” (See Respondent’s Motion to Dismiss; and Memorandum of Law in Support of the Respondent’s Motion to Dismiss, p.4, citing Clay, 199 F.3d at 879). However, Section 7609 would not exist, but to protect the rights of taxpayers, not the rights of the United States government. If a motion to quash invalidated sovereign immunity, then the right to quash would not exist, as it would subvert the purpose of the right to summon that the Respondent is seeking.
In summary, Petitioner contends that the Respondent’s arguments regarding sovereign immunity and subject matter jurisdiction are not compelling in this case. Petitioner further contends that this court has full jurisdiction over this case and that any arguments about Petitioner’s responsibility to prove Respondent’s case are irrelevant and unnecessary.
Wherefore, Petitioner pleads with this Court to deny Respondent’s Motion to Dismiss and grant Petitioner’s Motion to Quash Summons.
CERTIFICATE OF SERVICE: I certify that a copy of this foregoing Motion was served on Respondent by US Mail in a postage paid wrapper this 5th day of December, 2008, at Respondent’s address of record.
December 5, 2008
Larry Freeman, Petitioner, pro se
Blackshear, GA 31516