Frank T. Voelker v. Catherine M. Nolen

* After an examination of the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3125
F RANK T. V OELKER ,
Plaintiff-Appellant,
v.
C ATHERINE M. N OLEN , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:02cv1989—David F. Hamilton, Judge.
____________
S UBMITTED A PRIL 5, 2004 * —D ECIDED A PRIL 23, 2004
____________
Before B AUER , C OFFEY , and R OVNER , Circuit Judges.
P ER C URIAM . Tax protestor Frank Voelker filed this suit
claiming that three Internal Revenue Service agents vio-
lated his due process rights. The district court dismissed
the suit for lack of subject matter jurisdiction, determining
that the case should have been brought in the United States
Tax Court. We affirm.

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2 No. 03-3125
In June 2000, the IRS issued Voelker a notice of de-
ficiency for tax years 1994 through 1998. The notice
informed him of his right to petition the Tax Court for a re-
determination of the deficiency. Voelker did not file a peti-
tion in the Tax Court. The IRS then assessed income tax
liabilities against Voelker and notified him that it planned
to levy on his property as payment. Voelker requested
an administrative hearing to dispute his tax liability but
then failed to appear. The hearing was rescheduled, but
Voelker refused to participate because the hearing officer
would not let him tape record the proceedings. The IRS
subsequently issued Voelker a final notice informing him of
its intent to levy on his property and advising him that he
could challenge the underlying tax deficiency by petitioning
the Tax Court within 30 days.
Voelker did not bring a petition in the Tax Court, but
instead filed this suit in the district court. He claimed that
the three IRS agents involved in his case had violated his
due process rights by failing to follow statutory procedures
in conducting his administrative hearing. Voelker sought,
among other relief, a declaration that the IRS’s deficiency
determination was erroneous, a suspension of collection
efforts, and a new hearing. The district court concluded that
because the case involved income taxes, the Tax Court had
exclusive jurisdiction over Voelker’s claims. The court
therefore dismissed the case for lack of subject matter
jurisdiction.
The Internal Revenue Code provides numerous protec-
tions for taxpayers when the IRS assesses a tax deficiency.
Among other safeguards, the taxpayer has a right to an
administrative due process hearing before the IRS Appeals
Office. See 26 U.S.C. § 6330(b). If dissatisfied with the
results of this hearing, the taxpayer may seek judicial
review. See id. § 6330(d). The presumption is that review
should be sought in the Tax Court, but in cases where the
Tax Court lacks jurisdiction, the taxpayer may seek review

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No. 03-3125 3
in the district court. Id. The Tax Court has jurisdiction over
cases involving income, gift, and estate taxes. See Downing
v. Comm’r of Internal Revenue, 118 T.C. 22, 27 (T.C. 2002);
True v. Comm’r of Internal Revenue, 108 F.Supp.2d 1361,
1364 (M.D. Fla. 2000).
Accordingly, a case involving income taxes—like this
one—must be filed in the Tax Court, and the district court
lacks jurisdiction. White v. United States, 250 F.Supp.2d
919, 922-23 (M.D. Tenn. 2003); Downing, 118 T.C. at 27-28;
True, 108 F.Supp.2d at 1364. Voelker does not challenge the
district court’s conclusion that a case involving income taxes
must be brought in the Tax Court. Instead he suggests that
the district court had jurisdiction because his case does not
involve taxes per se, but only his right to a due process
hearing. Despite Voelker’s assertions to the contrary, the
crux of his dispute with the IRS is obviously his income tax
liability. In his complaint Voelker sought, among other
relief, a declaration that his income tax liability was
erroneously determined, a suspension of the IRS’s collection
efforts, and a redetermination of his income tax liability.
Voelker cannot reasonably dispute that his suit pertains to
his underlying income tax deficiency.
Voelker’s remaining arguments also lack merit. Voelker
suggests that he should have been allowed to pursue his
claims in the district court under the Federal Tort Claims
Act, but the Act does not cover “[a]ny claim arising in re-
spect of the assessment or collection of any tax.” 28 U.S.C.
§ 2680(c); see also Clark v. United States, 326 F.3d 911, 913-
14 (7th Cir. 2003) (claim regarding tax refund check not
cognizable under Federal Tort Claims Act). Voelker also
continues to argue the merits of his due process claims, but
this argument does not address the threshold issue of
jurisdiction. At any rate, Voelker could have raised these
same due process arguments had he properly filed his case
in the Tax Court. See, e.g., Polone v. Comm’r of Internal
Revenue, 86 T.C.M. (CCH) 698 (T.C. 2003) (considering due

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4 No. 03-3125
process argument); Boyd v. Comm’r of Internal Revenue, 86
T.C.M. (CCH) 440 (T.C. 2003) (considering due process and
equal protection arguments); Charlotte’s Office Boutique,
Inc. v. Comm’r of Internal Revenue, 121 T.C. 89 (T.C. 2003)
(considering due process argument); see also True, 108
F.Supp.2d at 1364 n.4 (noting that taxpayer was free to
raise due process arguments in the Tax Court).
The judgment of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-23-04

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