## Facts

- The Internal Revenue Service (IRS) filed levies against bank accounts held by Elias Kaggen and Rio A. Sferrazza to collect unpaid federal taxes and seized funds from those accounts.
- The taxpayers sued the IRS and the United States in the U.S. District Court for the Eastern District of New York, contending that the government did not give them the notice of seizure required by 26 U.S.C. § 6335(a).
- In resolving the case, the district court relied in part on the commonplace practice that banks send depositors monthly account statements showing account activity.
- The district court concluded that the taxpayers’ bank statements, together with bank communications concerning the levy, would have provided sufficient written notice that the accounts had been seized, and it entered judgment for the government.
- The taxpayers appealed, and the Second Circuit affirmed the judgment in an earlier published decision.
- The taxpayers then petitioned for rehearing, arguing that the appellate court (and/or the district court’s reasoning as affirmed) improperly took judicial notice—under Federal Rule of Evidence 201—of the fact that banks send monthly statements, without giving the taxpayers an opportunity to be heard on the propriety of noticing that fact.
- The Second Circuit granted rehearing, requested letter briefs from the parties on the judicial-notice issue, and then issued the per curiam rehearing decision reported at 71 F.3d 1018.

## Issues

1. Whether the court could take judicial notice under Federal Rule of Evidence 201 that banks send customers monthly bank statements, even though that fact was not developed in the record and the taxpayers initially claimed they had no opportunity to be heard.
2. Whether, considering the levy notices and the monthly bank statements, the taxpayers received all notice required by 26 U.S.C. § 6335(a) so that the levy was treated as effectively completed within the limitations period for collection.

## Decision

- The Second Circuit, on rehearing, reconfirmed its prior affirmance of judgment for the IRS and the United States.
- The court held it could properly take judicial notice that banks send depositors monthly bank statements.
- After reviewing the parties’ letter briefs, the court found no basis to change its earlier result.
- The court concluded that receipt of monthly bank statements, together with receipt of levy-related notices, provided the taxpayers all notice required by § 6335(a).

## Legal Principles

- A court may take judicial notice under Fed. R. Evid. 201 of facts that are generally known and not subject to reasonable dispute, including ordinary banking practices such as the mailing of monthly account statements.
- When a party challenges judicial notice on the ground that it lacked a chance to be heard, the opportunity to address the matter through rehearing and supplemental briefing can satisfy Rule 201’s procedural concern.
- For purposes of § 6335(a)’s notice-of-seizure requirement in the bank-account levy setting, written information that reliably informs the taxpayer that the account has been seized—such as levy notices and account statements reflecting the seizure—can be sufficient.

## Conclusion

The Second Circuit granted rehearing to consider the taxpayers’ Rule 201 objection but reaffirmed its earlier affirmance, holding that judicial notice of the routine sending of monthly bank statements was proper and that those statements, combined with levy notices, satisfied § 6335(a)’s notice-of-seizure requirement, leaving judgment for the IRS and the United States intact.


Kaggen v. Internal Revenue Service, 71 F.3d 1018 (1995)