Brewer v. US

Decision Date21 May 1991
Docket NumberNo. 90 Civ. 3423 (GLG).,90 Civ. 3423 (GLG).
Citation764 F. Supp. 309
PartiesBoyd Richard BREWER, Sr., Plaintiff, v. The UNITED STATES, the Internal Revenue Service, District Director, Mr. Alexander, and One or More John Does, Defendants.
CourtU.S. District Court — Southern District of New York


Boyd R. Brewer, Sr., pro se.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Diana Hassel, of counsel), for defendants.


GOETTEL, District Judge.

The Internal Revenue Service of the United States claims that the plaintiff in this case is a tax protestor. The plaintiff says that he is not. Nevertheless, in the years 1980 to 1982 and 1984 to 1987, plaintiff Boyd Richard Brewer, Sr. did not file tax returns. Despite being employed for many years, he claims that the United States tax laws are not applicable to him. This decision addresses a number of motions relating to litigation brought by the plaintiff in an effort to regain various properties which were seized and sold by the Internal Revenue Service ("IRS") to satisfy the tax deficiencies resulting from Mr. Brewer's failure to pay taxes in the years 1980 to 1982 and 1984 to 1987.


The IRS determined that the plaintiff owed taxes for the years 1980, 1981, 1982, 1984, 1985, 1986 and 1987. As required by law, notices of deficiency for each of these years were sent to the plaintiff. Plaintiff has acknowledged receiving these notices indicating an assessment of $59,906.43. Complaint ¶¶ 8-10. The notices informed him of his right to challenge the deficiencies in Tax Court if he wished to contest his tax liability without paying first. In response to the first notice concerning 1980, plaintiff petitioned the Tax Court. That petition was dismissed, however, for lack of prosecution.

Beginning in 1990, the IRS began to collect the amounts assessed against the plaintiff by filing liens, issuing levies, and seizing and selling the plaintiff's property. Specifically, the IRS seized past wages from plaintiff's employers and money held by Local 4361 and 417 of the Iron Workers union in annuity fund and vacation funds for the plaintiff's benefit. The IRS also seized and sold property owned by the plaintiff in Florida. Property owned by the plaintiff in Newburgh, New York was seized and subsequently released, and the IRS no longer claims a lien on this particular property.

Rather than challenge the merits of the tax assessments, plaintiff has brought this suit to quiet title to his past wages, his annuity fund, the Florida property and the New York property. Plaintiff's complaint focuses on purported defects in the manner in which the IRS assessed taxes against him and in the seizure and sale of his property.


Plaintiff seeks a preliminary injunction to prevent the IRS from continuing to seize and levy upon plaintiff's property. The government contends that such relief is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a), which expressly prohibits suits to restrain the collection of taxes except under limited circumstances, one of which is where the challenge to collection rests on the ground that the IRS assessed the tax without issuing a notice of deficiency as required by section 6212(a) of Title 26, United States Code.1

Here, it is undisputed that the IRS issued notice of deficiencies to the plaintiff. Plaintiff's argument focuses on purported deficiencies in the assessment process and in the notices themselves rather then on the lack of notice. Moreover, the notices sent to the plaintiff informed him of his opportunity to litigate in Tax Court. Because plaintiff was afforded "an opportunity to exhaust his administrative remedies, including an opportunity to litigate his tax liability fully in the Tax Court", assessment and collection was appropriate. Moreover, because the Commissioner was proceeding after notice and demand for payment, "the Anti-Injunction Act applies in full force and `no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.'" Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614, 616-19, 96 S.Ct. 1062, 1065-67, 47 L.Ed.2d 278 (1976) (quoting 26 U.S.C. § 7421(a)).

Furthermore, we do not find that the judicially created exception to the Anti-Injunction Act is applicable here. In Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Supreme Court held that an injunction may be obtained against the collection of any tax if (1) it is "clear that under no circumstances could the Government ultimately prevail" and (2) "equity jurisdiction" otherwise exists, i.e. the taxpayer shows that he would otherwise suffer irreparable injury. Id. at 7, 82 S.Ct. at 1129.

Since Mr. Brewer is challenging the correctness of the procedures followed by the IRS in assessing and collecting his taxes, our focus necessarily must be on whether any scenario will emerge in which the procedures followed will stand. While the plaintiff asserts several grounds which demonstrate, he argues, the inadequacy of the notices of deficiency, we cannot, without clear proof, find that plaintiff has an absolute certainty of success on the merits. Indeed, without this proof, this court is obligated to presume that the IRS complied with the statutory prerequisites to tax assessments. Borg-Warner Corp. v. Commissioner of Internal Revenue, 660 F.2d 324, 330 (7th Cir.1981); United States v. Ahrens, 530 F.2d 781, 785-86 (8th Cir. 1976); Lesser v. United States, 368 F.2d 306, 309 (2d Cir.1966). Such proof is lacking here.

Moreover, in the tax collection context, to obtain injunctive relief, the showing of irreparable harm by plaintiff must pass a rigorous test. Thus, despite plaintiff's generalized contentions that he and his family will be thrown into the streets and that his medical condition is being aggravated by the stress of his prolonged struggle with the IRS, not one of his assertions of harm is sufficient to avoid the proscription of the Anti-Injunction Act. Indeed, the Supreme Court has held that injunctive relief is not available simply because collection of the taxes would cause an irreparable injury such as financial ruination. Williams Packing, 370 U.S. at 6, 82 S.Ct. at 1128. In addition, the plaintiff has other legal remedies available to ameliorate any potential harm such as working out a settlement with the IRS or paying his taxes and instituting a refund suit in Tax. Plaintiff has chosen not to take advantage of this opportunity and has allowed, on the basis of his own legal conclusions, his obligation to the government to amass into an untenable size. When the absence of a remedy at law is due to a plaintiff's failure to pursue a claim before Tax Court, equity should not intervene. Shapiro, 424 U.S. at 634 n. 15, 96 S.Ct. at 1074 n. 15.

Plaintiff's motion for a preliminary injunction is denied.


The IRS makes two arguments in support of its motion to dismiss. First, it argues that the Anti-Injunction Act bars this action because it is nothing more than an attempt to cloak a "defective tax refund suit as an action to quiet title". Because "the exclusive remedy available to a taxpayer seeking `recovery of an internal revenue tax alleged to be erroneously or illegally assessed or collected' is a suit for refund," Defendant's Brief at 12, the IRS maintains that this court lacks subject matter jurisdiction over this suit.

This view was rejected recently by the Second Circuit in Kulawy v. United States, 917 F.2d 729 (2d Cir.1990). There, the court held that while the Anti-Injunction Act does not authorize a taxpayer to challenge an IRS assessment of his tax liability, id. at 733; see Falik v. United States, 343 F.2d 38, 42 (2d Cir.1965), the taxpayer is not precluded from bringing an action under 28 U.S.C. § 2410(a)(1) to challenge procedural irregularities in the seizure and sale of his property following such an assessment. Kulawy, 917 F.2d at 733. See, e.g., Aqua Bar & Lounge, Inc. v. United States, 539 F.2d 935, 938-40 (3d Cir.1976); Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990); Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). Section 2410(a) authorizes suits to quiet title to real or personal property on which the United States has or claims a mortgage or a lien.2

In Kulawy, the IRS sold the plaintiff's property at a public sale to satisfy a tax deficiency. The plaintiff brought suit to quiet title, challenging the legal sufficiency of the procedures followed by the IRS enforcing the lien rather than the substance of the IRS's assessment of tax liability against him. The court noted that

the language of the section § 2410(a) is sufficiently broad to permit such procedural challenges by the taxpayer, and if a suit under § 2410(a)(1) were not available, `the taxpayer would have no available means of enforcing compliance with the procedures enacted for his benefit.'

Id., quoting Aqua Bar, 539 F.2d at 939. Thus, challenges to procedures followed after assessment are clearly within the jurisdiction of this court. Less clear is whether challenges to procedures followed in making the actual assessment are within the jurisdiction of this court. Here, plaintiff has not challenged his actual liability for the taxes but has based his case on what he perceives to be the failure of the IRS to follow both statutory and regulatory procedures for making tax assessments and issuing Notices of Deficiency. When a procedural error blocks access to the Tax Court, jurisdiction under § 2410(a) is proper even though the procedural validity of the assessment is impugned. Robinson v. United States, 920 F.2d 1157, 1161 (3d Cir. 1990). Though plaintiff has complained that the Notices of Deficiency sent to him were inadequate, he nevertheless acknowledges their receipt. He also asserts that he "made the conclusion of law that said noticess were bogus and any petition into Tax Court would deprive him...

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