Boritz v. U.S.A, Civil Action No. 09-542 (CKK).

• Decision Date: 23 February 2010
• Docket Number: Civil Action No. 09-542 (CKK).
• Citation: 685 F.Supp.2d 113
• Parties: Peter BORITZ, Plaintiff, v. UNITED STATES of America and Internal Revenue Service, Defendants.
• Court: U.S. District Court — District of Columbia

685 F.Supp.2d 113

Peter BORITZ, Plaintiff,

v.UNITED STATES of America and Internal Revenue Service, Defendants.

Civil Action No. 09-542 (CKK).

United States District Court, District of Columbia.

Decided: Feb. 23, 2010.

COPYRIGHT MATERIAL OMITTED

Peter Boritz, Issaquah, WA, pro se.

Benjamin J. Weir, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY District Judge.

Pro se Plaintiff Peter Boritz brings this action against the United States and the Internal Revenue Service ("IRS," collectively with the United States, "Defendants") ¹ regarding allegedly unlawful tax collection and assessment activity. Plaintiff complains that Defendants have wrongfully held him liable for certain unpaid tax liabilities for tax years 1994 and 1995 and have issued a procedurally improper Notice of Federal Tax Lien and Notice of Levy on his property. He primarily seeks relief pursuant to the Taxpayer Bill of Rights, 26 U.S.C. §§ 7432 and 7433, which permit a taxpayer to bring a suit for damages against the United States for failure to release a lien and for certain unauthorized collection actions, respectively. In addition, Plaintiff asserts a claim for declaratory and injunctive relief pursuant to the Administrative Procedures Act, ("APA"), 5 U.S.C. § 706, and seeks to quiet title to the property that is the subject of the Notice of Federal Tax Lien and the Notice of Levy pursuant to 28 U.S.C § 2410.

Currently pending before the Court is Defendants' [7] Motion to Dismiss or in the Alternative Motion for Summary Judgment. Defendants argue that the United States is the only proper defendant in this action and that Plaintiff's claims should be dismissed under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) or alternatively that Defendants should be granted summary judgment pursuant to Federal Rule of Civil Procedure 56. Upon consideration of Defendants' motion and the parties' responsive briefings as well as attachments thereto, as may be appropriate, the relevant case law and statutory authority, and the record of this case as a whole, the Court GRANTS Defendants' [7] Motion to Dismiss or in the Alternative Motion for Summary Judgment, for the reasons set forth below.

Specifically, the Court holds as follows. First, Defendants' Motion to Dismiss Plaintiffs claims against the IRS is GRANTED as conceded. Second, Defendants' Motion to Dismiss Count I (quiet title action pursuant to 28 U.S.C. § 2410) and Count IX (APA) for lack of jurisdiction pursuant to Rule 12(b)(1) is GRANTED. Third, Defendants' Motion to Dismiss Count II (failure to issue notice of deficiency in violation of §§ 6212 and 6213), Count III (failure to make assessment in violation of § 6203), Count IV (failure to make assessment in violation of § 6303), Count V (failure to release lien in violation of § 7342), Count VII (unauthorized disclosure in violation of § 6103(b)(6)), and Count VIII (failure to issue certificate of release in violation of § 6325), for failure to state a claim pursuant to Rule 12(b)(6) is GRANTED. Fourth and finally, Defendants' Motion for Summary Judgment as to Count VI (failure to issue notice of levy in violation of § 6331(d)) is GRANTED.

I. BACKGROUND

Plaintiff filed his Complaint on March 19, 2009. Plaintiff's Complaint represents one of dozens of lawsuits brought in this jurisdiction by tax protestors—allegedly proceeding pro se—asserting a variety of forms of misconduct by the IRS. See Pollinger v. United States, 539 F.Supp.2d 242 245 & n. 3 (D.D.C.2008) (citing cases). Unlike the majority of the complaints in those other actions, however, Plaintiffs Complaint includes at least some particularized facts specifically pertaining to Plaintiff Peter Boritz. See generally Compl.

Although the allegations contained in Plaintiff's Complaint are somewhat nebulous in nature, Plaintiff appears to primarily complain about a Notice of Levy and a Notice of Federal Tax Lien issued by the IRS for the tax years 2004 and 2005. The former was issued on November 9, 2007 by the IRS against Plaintiff's bank account in the amount of $12,558.73 for tax years 1994 and 1995. Id. ¶8 & Ex. D (IRS Notice of Levy). The latter was filed shortly thereafter on November 13, 2007 with the County Auditor in King County, Washington in the amount of $21,485.89 for the tax years 1994 and 1995. Id. ¶ 9 & Ex. C (IRS Notice of Federal Tax Lien).

Plaintiff now seeks to challenge the validity of both the Notice of Levy and Notice of Federal Tax Lien. At heart, Plaintiff disputes the underlying tax assessment

issued against him for tax years 1994 and 1995, alleging that he "is the sole owner of his physical and mental labor" and that he "does NOT owe the UNITED STATES, or any employees working on its behalf, the fruit of his labor property." Id. ¶¶2, 6 (emphasis in original). Plaintiff further claims that he has "filed all returns required to be filed for tax years 1994 and 1995 and fully satisfied and paid all income taxes Plaintiff was made liable for and required to pay regarding the years in dispute." Id. ¶ 7 (emphasis in original).

Despite Plaintiffs unequivocal denial of any substantive liability for tax years 1994 and 1995 and his clear attack on the validity of the underlying tax assessments, Plaintiff has—in an apparent effort to avoid many of the same pitfalls that have befallen previous tax protester lawsuits— attempted to frame his lawsuit as asserting only procedural, rather than substantive, challenges to the Notice of Levy and Notice of Federal Tax Lien. Specifically, Plaintiff asserts the following nine causes of action in his Complaint:

• Count I: seeks to quiet title to the property that is the subject of the Notice of Levy and Notice of Federal Tax Lien pursuant to 28 U.S.C. § 2410;

• Count II: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7433 based upon Defendants' alleged failure to send a notice of deficiency to Plaintiff's last known address prior to issuance of the Notice of Levy in violation of 26 U.S.C. §§ 6212(a) and 6213(a);

• Count III: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7433 based upon Defendants' alleged failure to make a timely assessment in violation of 26 U.S.C. § 6203;

• Count TV: alleges a claim for monetary damages pursuant to 26 § U.S.C.

§ 7433 based upon Defendants' alleged failure to provide a timely notice of assessment in violation of 26 U.S.C. § 6303;

• Count V: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7432 based upon Defendants' alleged failure to release the Notice of Federal Tax Lien in violation of 26 U.S.C. § 6325(a)(1);

• Count VI: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7433 based upon Defendants' alleged failure to serve him with a notice of levy in violation of 26 U.S.C. § 6331(d)(2);

• Count VII: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7433 based upon Defendants' allegedly unauthorized public disclosure of his social security number on the Notice of Federal Tax Lien in violation of 26 U.S.C. § 6103(b)(6);

• Count VIII: alleges a claim for monetary damages pursuant to 26 U.S.C. § 7433 based upon Defendants' alleged failure to issue a certificate of release with respect to the Notice of Federal Tax Lien in violation of 26 U.S.C. § 6325(a)(1); and

• Count IX: alleges that Defendants acted in excess of their statutory authority and seeks non-monetary declaratory and injunctive relief pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2).

See generally Compl.

As set forth in his Complaint, Plaintiff states that he previously submitted an administrative claim with the IRS and filed this lawsuit only after exhausting his administrative remedies. See id. 11¶ 11-13 & Ex. A. Now before the Court is Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment. See Defs.' Mot., Docket No. [7]. Plaintiff has filed his opposition to Defendants' Motion, see PL's Opp'n, Docket No. [10], and Defendants have filed their reply, see Defs.' Reply, Docket No. [11]. Briefing on Defendants' Motion is therefore complete and the issues are ripe for the Court's resolution.

II. LEGAL STANDARDS

Defendants have moved for dismissal of Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6) and have also moved in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56. Insofar as Defendants have moved for dismissal of certain claims under Rule 12(b)(1) the Court may consider a complaint "supplemented by undisputed facts evidenced in the record or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (quoting Herbert v. Nat'l Acad, of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)). To the extent, however, that Defendants have moved to dismissed certain claims for failure to state a claim under Rule 12(b)(6), the Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).

In this case, Defendants have attached five exhibits to their motion—namely, the June 10, 1998 Order and Decision of the United States Tax Court in Boritz v. Commissioner of Internal Revenue and four Certificates of Official Record (Form 3430) relating to Plaintiff concerning tax years 1994 and 1995. See Defs.' Mot. at Exs. AE. All of the attached exhibits may be appropriately considered by the Court for purposes of Defendants' Motion to Dismiss brought under Rule 12(b)(1). In addition while the June 10, 1998 Order and Decision is a matter of public record and therefore may be considered by the Court in ruling on Defendants' Motion to Dismiss under Rule 12(b)(6), the Certificates of Official...