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RAND v. UNITED STATES

April 6, 1993

MARTIN W. RAND, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.


FISHER


The opinion of the court was delivered by: KENNETH R. FISHER

Plaintiff, proceeding pro se, brought this action seeking to quiet title to his property, by having a United States Government ("Government") tax lien removed from it. Plaintiff alleges that the government failed to follow proper procedures when it levied upon his property. Plaintiff moves to compel the Government to produce copies of certain tax levy and lien notices. The government moves to dismiss the plaintiff's complaint for lack of subject matter jurisdiction, or, in the alternative, that summary judgment be granted in its favor.

 This matter was originally referred to me by District Judge David G. Larimer, by order dated July 31, 1992, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). The parties subsequently executed a Consent to Proceed Before a United States Magistrate Judge on September 22, 1992, pursuant to 28 U.S.C. § 636(c).

 The following constitutes my decision and order denying plaintiff's motion to compel, dismissing his complaint and granting defendant's summary judgment motion.

 I. Background

 II. Discussion

 A. Motion to Compel

 In response to the plaintiff's first bequest for production of documents, the government sent plaintiff copies of the summary records of assessments made against him, and the certified mall listings showing that the statutory notices of deficiency listed in the Certificates of Assessments and Payments ("Certificates") were also sent to him. See Letter to plaintiff, dated August 24, 1992, annexed as Exh. 1 to Defendant's Second Response to Plaintiff's Document Request ("Second Response") (docket entry #10). Not satisfied with the certified mail listing, plaintiff moved to compel production of the actual hard copies of the notices and demands for payments. At the oral argument of these motions, held on September 8, 1992, I ordered the defendant to respond to plaintiff's request to the extent that it possessed the documents in question. The defendant filed its Second Response on September 28, 1992, in which it informed the court that the IRS did not retain hard copies of the notices and demands for payments or the notices of intent to levy.

 The Federal Rules of Civil Procedure apply to discovery disputes. Rule 26(b)(1) governs the scope and limits of discovery and provides in pertinent part:

 
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery. . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

 Thus, "the scope of discovery under Fed. R. Civ. P. 26(b) is very broad." Maresco v. Evans Chemetics, 964 F.2d 106, 114 (2d Cir. 1992). The "key phrase in this definition [is] 'relevant to the subject matter involved in the pending action.'" Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253 (1978) (quoting Fed. R. Civ. P. 26(b)(1)). Relevancy has been defined for discovery purposes as "any matter that bears on, or that reasonably could relate to other matter[s] that could bear on any issue that is or may be the case." Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Thus, even though the court is "to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than [it] would in reviewing a pleading submitted by counsel," Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991), "it is relevancy of the subject matter which is the test," In re Surety Association of America, 388 F.2d 412, 414 (2d Cir. 1967).

 Under this standard, it is clear that the documents plaintiff seeks are relevant to his action. Plaintiff argues that he is entitled to copies of these notices pursuant to 26 C.F.R. § 301.6203-1. Plaintiff's Response to Answer of Defendant ("Response to Answer"), p.2 (docket entry #6). This regulation contains the following provision:

 
If the taxpayer requests a copy of the record of assessment, he shall be furnished with a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character or the liability assessed, the taxable period, if applicable, and the amounts assessed.

 26 C.F.R. § 301.6203-1. See Hughes v. United States, 953 F.2d 531, 538 (9th Cir. 1992) (" 26 U.S.C. § 6203 requires, as a procedural matter, that a taxpayer be furnished with a copy of his assessment record if he so requests"). This information is contained in "the summary record of assessment," 26 C.F.R. § 301.6203-1, copies of which were provided to plaintiff in response to his first request.

 In Gentry v. United States, 962 F.2d 555 (6th Cir. 1992), the Sixth Circuit rejected the plaintiffs' contention "that they were entitled to obtain all original documents used by the IRS to prepare the summary record," and it found that the IRS' selection of certificate of assessments and payments "as the means for providing information specified" by statute and regulation complied with Treasury Regulations 26 U.S.C. § 301.6203-1. Id. 962 F.2d at 558. See also United States v. Chila, 871 F.2d 1015, 1017 (11th Cir. 1989), cert. denied, 493 U.S. 975, 107 L. Ed. 2d 501, 110 S. Ct. 498 (1989) (26 C.F.R. § 301.6203-1 "is satisfied by providing any part of the records of the government that supplies the 'pertinent information' that both regulation and statute require").

 I find that the government has adequately complied with plaintiff's request for documents. With respect to the copies of the actual notices and demands for taxes, the regulations clearly show that the government is not required to furnish plaintiff with these documents, nor can it be compelled to produce ...


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