United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS (DOC. 8)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Gold Forever Music, Inc. filed a wrongful levy action against
defendant the United States of America on December 6, 2017.
This matter is presently before the Court on defendant's
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). Pursuant to Local Rule 7.1(f)(2), the
Court shall rule without oral argument. For the reasons
stated below, defendant's motion is GRANTED.
is a music publishing company owned by Edward Holland, Jr.
Holland owes the Government over $19 million in unpaid
federal income tax liabilities. (Doc. 8-1 at PageID 58). The
Internal Revenue Service (IRS) levied plaintiff's royalty
payments and applied the funds to Holland's debt.
See (Doc. 1 at PageID 2). Plaintiff alleges that the
royalty payments were not owed to Holland, but rather,
plaintiff's property. (Doc. 1 at PageID 1).
served two notices of levy. (Doc. 8-2 at PageID 60, Doc 8-3
at PageID 61). The first was served upon Broadcast Music,
Inc. (BMI) on August 27, 2012. (Doc. 8-2 at PageID 60). The
second was served upon Universal Music Publishing (Universal)
on the same date. (Doc. 8-3 at PageID 61). Plaintiff's
complaint acknowledges that these notices were served in
2012. (Doc. 1 at PageID 2). Funds were paid in 2016 and 2017.
(Doc. 1 at PageID 3). Plaintiff alleges that it requested
refunds on June 23, 2017 and September 17, 2017. (Doc. 1 at
moves to dismiss on the grounds that plaintiff's action
is time barred under the statute of limitations codified at
26 U.S.C. § 6532(c).
Although, in general, statutes of limitations serve as
affirmative defenses, in suits against the United States,
compliance with the applicable statute serves also as a
jurisdictional prerequisite. See Douglas v. United
States, 562 F.Supp. 593 (S.D.Ga.1983). The consent by
the United States to be sued is conditioned upon the action
commencing within the statutory time period. See
Dieckmann v. United States, 550 F.2d 622 (10th
Cir.1977). These statutory waivers of sovereign immunity are
construed strictly, and if the time limit has elapsed, the
action may properly be dismissed for lack of subject matter
jurisdiction. Id. at 623.
Miller v. United States, 838 F.Supp. 338, 339 (N.D.
Ohio 1993). See also Ohio Nat. Life Ins. Co. v. United
States, 922 F.2d 320, 324 (6th Cir. 1990) (stating that
the statutory period of limitations codified at 26 U.S.C.
§ 6532 is “jurisdictional”).
filed a cause of action under 26 U.S.C. § 7426.
Subsection (i) of this statute states that 26 U.S.C. §
6532(c) governs a period of limitation for actions brought
under § 7426. Title 26 U.S.C. § 6532(c) governs
“suits by persons other than taxpayers.” It
(1) General rule - Except as provided by paragraph (2), no
suit or proceeding under section 7426 shall be begun after
the expiration of 2 years from the date of the levy or
agreement giving rise to such action.
(2) Period when claim is filed - If a request is made for the
return of property described in section 6343(b), the 2-year
period prescribed in paragraph (1) shall be extended for a
period of 12 months from the date of filing of such request
or for a period of 6 months from the date of mailing by
registered or certified mail by the Secretary to the person
making such request of a notice of ...