PETITION FOR REDETERMINATION OF TAX DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION.

                 IN THE UNITED STATES DISTRICT COURT

STATEMENT OF FACTS

[2] On May 20, 1999, the Internal Revenue Service ("IRS') issued to Bobby P. Lewis ("Lewis") and his spouse a "Final Notice -- Notice of Intent to Levy and Notice of Your Rights to a Hearing," relating to unpaid income taxes, interest, and penalties for the 1994 and 1996 tax years. Included in these tax deficiencies were taxes on a trust fund for the 1985 and 1986 tax years.

[3] Lewis responded to the IRS notice by timely requesting a due process hearing. Lewis attached a written statement regarding the Notice to Levy to his request for a hearing. Lewis's statement did not contest the tax liability. Rather, Lewis simply requested a stay in the levying process for 60 days in order to sell some land and thereby satisfy his tax debt. The IRS agreed to delay levying Lewis's property for 60 days. Nevertheless, Lewis was unable to sell this property to satisfy his tax deficiencies.

[4] On March 31, 2000, Lewis filed a complaint in this Court contesting his federal income tax determinations for the 1994 and 1996 tax years. The Government filed a motion for summary judgment attacking Lewis's complaint on three grounds: (1) lack of subject matter jurisdiction; (2) failure of service of process; and (3) variance of claims.

DISCUSSION

[5] As Lewis is the party seeking to invoke federal jurisdiction, he bears the burden of demonstrating that jurisdiction is proper in this Court. See Santos v. Reno, 2000 WL 1404904 (5th Cir. Sept. 26, 2000). The district courts have original jurisdiction over matters "arising under" federal law. 28 U.S.C. section 1331. Cases "arising under" federal law occur in two situations. First, an action arises under federal law if the plaintiff's right to relief depends on a substantial question of federal law. Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986). Second, in the vast majority of cases for which original jurisdiction will lie, federal law will create the claim. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 807-8 (1986). In the instant case, Lewis's tax claim arises under section 6330 of the United States Tax Code. See 26 U.S.C. section 6330(d)(1)(B)(2000).

[6] Section 6330 provides:

     (d) Proceeding after hearing. --

[7] Regulations issued by the United States Department of Treasury further clarify this matter:

     If the Tax Court would have jurisdiction over the type of tax

[8] In this case, the Tax Court has jurisdiction because Lewis's case involves tax liability. For this Court to have jurisdiction, Lewis would have to demonstrate in his complaint that one of the items involving a trust fund related to a Federal trust fund. Moore v. Commissioner, 114 T.C. 171 (2000). In the absence of such an allegation, the claims in this suit are purely of a tax nature and fall squarely within the tax jurisdiction of the Tax Court. McCune, 2000 WL 378878, at *1. Accordingly, Lewis has failed to meet his burden of proving this Court has jurisdiction over his claim. See, Santos, 2000 WL 1404904, at *1.

[9] Having determined that this Court lacks subject matter jurisdiction over this tax matter, it may not consider the Government's second and third arguments. Accordingly, the Court hereby

[10] ORDERS that United States of America's Motion to Dismiss (Instrument #6) is GRANTED.

[11] SIGNED at Houston, Texas, on this 31st day of October, 2000.

                                   David Hittner