The opinion of the court was delivered by: PARKER
This action for mandamus is before this Court on Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Pro se Plaintiff John D. Morelli ("Morelli") brings this action under 28 U.S.C. § 1361 to compel Defendants, Eugene Alexander, Arthur L. Brunwasser and Carol M. Landy, agents of the Internal Revenue Service ("the Agents"), to strictly comply with the Internal Revenue Code and regulations.
Morelli charges that the Agents violated various duties under the Internal Revenue Code when they sent him several official notices without signing them under penalty of perjury, 26 U.S.C. § 6065,
when they failed to prepare a tax return for him, 26 U.S.C § 6020, and when they sent him a defective Notice of Intent to Levy, 26 U.S.C. § 6031.
A motion under Rule 12(b)(1) challenges subject matter jurisdiction. The federal courts are, of course, courts of limited jurisdiction. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978). A federal court is presumed to lack jurisdiction in a particular case unless jurisdiction is established. See W.G. v. Senatore, 18 F.3d 60, 64 (2nd Cir. 1994). Here, Morelli asserts that the Court has subject matter jurisdiction under the Mandamus Statute, 28 U.S.C. § 1361, which provides:
Mandamus is a drastic remedy available only in extraordinary situations. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980). Mandamus is available only when three conditions are met: (1) the plaintiff has a clear right to the relief sought, (2) the defendant has a plainly defined and peremptory duty to perform the act in question, and (3) no other adequate remedy is available. See Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989). Where the party seeking relief under § 1361 fails to demonstrate the existence of any of the necessary criteria, mandamus is not available. See, e.g., Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983).
1. The Agents Failure to Verify the Notices
Morelli argues that the Agents violated their duty under 26 U.S.C. § 6065 by failing to sign the notices that they sent to Morelli. Section 6065 states:
Except as otherwise provided by the Secretary, any return, declaration statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.
Morelli has incorrectly interpreted this provision. Section 6065 was enacted to permit the taxpayer to submit a verified return rather than a notarized return, see, e.g., Cohen v. United States, 201 F.2d 386, 393 (9th Cir.) (construing § 6065's predecessor provision), cert. denied, 345 U.S. 951, 97 L. Ed. 1374, 73 S. Ct. 864 (1953), and does not apply to notices issued by IRS agents.
See Pursell v. United States, 1995 U.S. Dist. LEXIS 2797, *20, 1995 WL 273175 at *6 (E.D.Cal. 1995); Mueller v. Esselstrom, 1995 U.S. Dist. LEXIS 4343, at *7, 1995 WL 462219 at *2-3 (C.D.Cal. 1995); In re White, 168 Bankr. 825, 833 (Bankr. D. Conn. 1994). Accordingly, Morelli has failed to satisfy the second prong for mandamus jurisdiction which requires that there exist a plainly defined and peremptory duty to be performed. See Mueller, 1995 U.S. Dist. LEXIS 4343, at *5, 1995 WL 462219 at *2-3 (action to require IRS agent to sign Notice of Intent to Levy failed to satisfy jurisdictional requirements of 28 U.S.C. § 1361). Further, other adequate remedies are available to Morelli, such as paying the assessed taxes and seeking a refund pursuant to 26 U.S.C. § 7422. See Mueller, 1995 U.S. Dist. LEXIS 4343, at *8, 1995 WL 462219 ...