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Topsnik v. United States

United States District Court, D. Columbia.

December 2, 2013

GERD TOPSNIK, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

Page 2

For GERD TOPSNIK, Plaintiff: Michael Cavalier Durney, LAW OFFICES OF MICHAEL C. DURNEY, Washington, DC.

For UNITED STATES OF AMERICA, Defendant: Ari David Kunofsky, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Tax Division, Washington, DC; William Bradley Russell, Jr., U.S. DEPARTMENT OF JUSTICE, Washington, DC.

OPINION

Page 3

ORDER

REGGIE B. WALTON, United States District Judge.

The plaintiff, Gerd Topsnik, has filed this action against the United States seeking review under 26 U.S.C. § 7429 (2012) of a jeopardy assessment and levy imposed upon him by the Internal Revenue Service (" IRS" ). Complaint (" Compl." ) ¶ 1. Currently before the Court are the United States' Motion for Summary Determination (" Gov't's Mot." ) and Gerd Topsnik['s] Motion for Summary Determination and Opposition to [the] United States' Motion for Summary Determination (" Pl.'s Mot." ). Upon careful consideration of the parties' submissions,[1] and for the reasons stated below, the Court must grant the United States' motion and deny the plaintiff's motion.

BACKGROUND

A. Statutory Background

" If the collection of income tax will be jeopardized by delay, the IRS is statutorily authorized to expedite collection by immediate levy, via a jeopardy assessment, upon a taxpayers' property." Olbres v. IRS, 837 F.Supp. 20, 21 (D.N.H 1993) (citing, among others, 26 U.S.C. § 6861). " The effect of a jeopardy proceeding 'is to render these taxes immediately due and payable, so that the IRS can act to insure collection.'" Varjabedian v. United States, 339 F.Supp.2d 140, 144 (D. Mass. 2004) (citation omitted). But " the jeopardy proceeding 'is of a summary nature and does not amount to a final determination of [the] plaintiff's correct tax liability.'" Id. (citation omitted).

Under § 7429, a " taxpayer may bring a civil action against the United States" in " the district courts of the United States" [2] for review of the jeopardy assessment and levy, § 7429(b)(1), (2)(A), and " [w]ithin 20 days after a [§ 7429] proceeding is commenced . . . the court shall determine" two issues, id. § 7429(b)(3). First " the Court must determine whether [the] IRS demonstrated that [the] making

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of the assessments [or levies] was reasonable." Lyons v. United States, CIV. No. 86-2452, 1988 WL 62836, at *1 (D.D.C. Feb. 1, 1988) (citing § 7429(g)(1)); see also § 7429(b)(3)(A)(i) (addressing assessments); id. § 7429(b)(3)(B) (addressing levies). Second, " [i]f the Court finds that the IRS meets this burden, the Court must then determine if the taxpayer has demonstrated that the amount assessed was not ...


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