Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)

                      UNITED STATES of America, Defendant.
                                No. 91-322-K(CM).
                 United States District Court, S.D. California.
                                 Oct. 15, 1992.

  KEEP, Chief Judge:
  *1 On March 21, 1991, the Internal Revenue Service issued a third-party
 summons to the First Interstate Bank, located at 401 B Street, San Diego,
 California, demanding the bank records of plaintiff Church of Scientology
 Western United States.  On March 25, 1991, plaintiff filed a petition to quash
 the IRS summons.  Upon receipt of the petition, the IRS withdrew the summons,
 and plaintiff stipulated to dismissal of the action, specifically reserving the
 issue of plaintiff's entitlement to fees and costs.
  On October 11, 1991, United States Magistrate Judge Harry McCue heard
 plaintiff's motion for an order awarding attorneys' fees, expenses, and costs
 to petitioner.  Magistrate Judge McCue denied the motion on July 31, 1992.
 Plaintiff, however, did not have notice of Magistrate Judge McCue's denial
 until September 9, 1992, when the order was served as an attachment to the
 IRS's opposition to plaintiff's motion for a status conference.  Plaintiff
 filed an objection to Magistrate Judge McCue's order on September 23, 1992,
 within the ten day period allotted by Federal Rules of Civil Procedure 72
 and 6.
  Federal Rule of Civil Procedure 72(a), incorporated herein by reference,
 provides that a district court reviews a magistrate's order concerning a non-
 dispositive question under a clearly erroneous standard.  Magistrate orders
 concerning dispositive questions are reviewed, however, under a de nova
 standard.  F.R.Civ.P. 72(b).  In order to determine whether an issue is
 dispositive or non-dispositive, the court must determine how the issue would be
 characterized under the Federal Magistrates Act, 28 U.S.C. s 631, et seq.  See
 Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir.1992).  Section
 636(b)(1)(A) allows a judge to hear and determine any nondispositive pretrial
 matter, such determination being subject to a clearly erroneous standard of
 review.  On the other hand, section 636(b)(1)(B) states that a magistrate
 may only issue recommendations on eight listed dispositive matters, which are
 subject to a de nova standard of review.  The question of whether to award
 attorney's fees is not among the eight listed matters.  Thus, the court must
 determine whether the matter is in nature similarly dispositive by looking at
 the legislative intent underlying section 636(b)(1)(B).  See 11 Charles Alan
 Wright & Arthur R. Miller, Federal Practice and Procedure s 3076.5 at 46
  Dispositive questions warrant a higher standard of review because "of the
 possible constitutional objection that only an article III judge may ultimately
 determine the litigation."  See generally H.R.Rep. No. 94-1060, 94th Cong., 2d
 Sess. 10-11 (1976).  Thus, matters that affect that final outcome of the
 litigation are dispositive, whereas pretrial matters not integral to the
 determination of the merits of the action are non-dispositive.
  The question of whether an award of attorney's fees is dispositive has not
 been addressed in the Ninth Circuit.  In West v. Redman, 530 F.Supp. 545
 (D.Del.1982), the district court determined that an award of attorney's fees
 was a dispositive matter.  The court reasoned that attorney's fees are
 "essential to a full disposition of the petitioner's claim and the defendant's
 liability."  Id. at 548.  Because the Third Circuit held that attorney's
 fees were integral to the merits of an action rather than collateral and
 "clearly part of the overall relief sought and granted," the court held that
 attorney's fees are dispositive.  Id. (citing Croker v. Boeing, 662 F.2d
 975, 983 (3d Cir.1981) (en banc)).  I agree with the District Court of
 Delaware's analysis, and hold that an award of attorney's fees is dispositive
 in nature.  I therefore will review Magistrate Judge McCue's order denying
 attorney's fees de novo.
  *2 Petitioner has requested attorneys' fees and costs pursuant to 26
 U.S.C. s 7430, which provides that "[i]n any ... court proceeding which is
 brought ... against the United States in connection with the determination,
 collection, or refund of any tax ... under this title, the prevailing party may
 be awarded a judgment or a settlement for ... reasonable litigation costs."
 26 U.S.C. s 7430(a).  In order for a party to be awarded reasonable
 litigation costs under section 7430, three requirements must be met.  First,
 the taxpayer must exhaust all administrative remedies available within the
 Internal Revenue Service.  Id. at s 7430(b)(1).  Second, the taxpayer
 must be the "prevailing party" as defined by section 7430(c)(4).  Third, the
 taxpayer must show that the requested litigation costs are "reasonable."
 Id. at s 7430(c)(1).
  The government argues, and I agree, that Magistrate Judge McCue correctly
 denied petitioner's request for attorney's fees and costs because petitioner
 did not exhaust its administrative remedies.  Although the Treasury Regulations
 promulgated under 26 U.S.C. s 7430 are no longer binding on cases filed
 after January 1, 1986 due to a "sunset" provision that renders them
 inapplicable to such proceedings, the Regulations still serve as a guide for
 taxpayers who wish to comply with the statutory requirement to exhaust
 administrative remedies.  See Kenlin Industries, Inc. v. United States
 [91-1 USTC P 50,122], 927 F.2d 782, 786-88 (4th Cir.1991).  Under the
 Regulations, a taxpayer is not considered to have exhausted his or her
 administrative remedies with regard to a summons unless the taxpayer submits
 the dispute to the district director before filing suit.  See 26 C.F.R. s
 301.7430-1.  Even though the Regulations serve as only a guide to the taxpayer,
 in order to obtain attorneys' fees and costs under 26 U.S.C. s 7430(b)(1),
 the taxpayer must still show that he or she attempted to exhaust the
 administrative remedies offered by the IRS.
  In this case, plaintiff has failed to show that it took any steps to exhaust
 administrative remedies within the IRS before filing a suit to quash the
 summons in district court.  Although the exhaustion of administrative remedies
 is not required to obtain the remedy of quashing the summons, the plaintiff is
 required to exhaust administrative remedies before it is entitled to
 reimbursement for its litigation expenses.
  For the reasons stated above, I affirm Magistrate Judge McCue's order denying
 attorneys' fees and costs.
  IT IS THEREFORE ORDERED that the order of Magistrate Judge McCue is affirmed
 in its entirety.

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