Coolman v. U.S. I.R.S.

• Decision Date: 26 April 2000
• Docket Number: No. 8:99CV471.,8:99CV471.
• Parties: Michael E. COOLMAN, Plaintiff, v. UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE and Barbara Donahoo, Defendants.
• Court: U.S. District Court — District of Nebraska

117 F.Supp.2d 943

Michael E. COOLMAN, Plaintiff, v. UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE and Barbara Donahoo, Defendants.

No. 8:99CV471.

United States District Court, D. Nebraska.

April 26, 2000.

COPYRIGHT MATERIAL OMITTED

Michael E. Coolman, Syracuse, NE, Pro se.

Evan J. Davis, U.S. Department of Justice, Tax Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

CAMBRIDGE, District Judge.

This matter is before the Court on Magistrate Judge Thalken's Report and Recommendation (filing 7) on the Defendant's motion to dismiss petition (filing 2), and the Plaintiff's objections to the report and recommendation (filing 8). Pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, this Court has conducted a de novo review of the portions of the Magistrate Judge's findings and recommendations to which objections have been made, and finds that the objections should be overruled and the report and recommendation adopted.

On November 5, 1999, the Plaintiff filed suit against the IRS and one of its agents claiming his Fifth Amendment rights would be violated if he were forced to sign a tax return under the penalty of perjury. Within the suit, the Plaintiff prayed for an order finding he was not required to, nor could be compelled to, sign a tax return or any document under the penalty of perjury because it would infringe upon and waive his Fifth Amendment rights against self incrimination, that any investigation or fine by the IRS be prohibited, and that any property the IRS possessed pertaining to him be returned. The Defendants filed a motion to dismiss on January 18, 2000 in which they claim that the suit is one against the United States, and argue that the relief sought is barred because the United States has not waived its sovereign immunity and it violates the Anti-Injunction Act and the Declaratory Judgment Act. This Court referred the motion to Magistrate Judge Thalken and he issued a report and recommendation in which he recommended that the Defendants' motion to dismiss be granted. Specifically, the magistrate judge found that the United States was the proper party, and that neither the Administrative Procedures Act (APA) nor any other statute waived the United States' sovereign immunity. Thus, he concluded that this Court lacked subject matter jurisdiction. In response, the Plaintiff has filed objections to the report and recommendation.

The Plaintiff claims that this Court does have subject matter jurisdiction, and that he "has not brought this action to restrain the assessment and collection of (income) taxes. Petitioner has brought this action to restrain the collection of petitioner's signature, which is mandated by law at 26 U.S.S. [sic] § 6051 to be had by the Secretary, and which respondent seeks by compelling measurers, pursuant to or under penalty of perjury, and where once obtained, such signature subjects petitioner to 26 U.S.C. § 7206 prosecution, directly, for `willfully signing' such form, if the statements contained therein are examined and found to be not true, or in any variation thereof." In short, the Plaintiff claims that he is not required to sign a tax return as it might incriminate him in violation of his Fifth Amendment rights. Furthermore, he claims, in light of the entire tax code, it would be impossible to know if everything within the tax return was correct. This Court finds that the magistrate was correct in that this Court lacks jurisdiction because there has not been a waiver of the United States' sovereign immunity, and further finds that the Plaintiff is incorrect in his belief that the Fifth Amendment does not require him to sign his tax return since such signature is under the "threat" of perjury.

This Court recognizes that the United States is "`immune from suit, [unless] it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). The United States' consent to suit, however, must be unequivocally expressed. In re Russell, 155 F.3d 1012, 1012 (8th Cir.1998). In the present action the Plaintiff claims that the United States' sovereign immunity is waived by § 702 of the APA. This Court finds that the APA does, in certain circumstances, create a waiver of the Government's sovereign immunity but does not find that to be the case here. As stated in Hughes v. United States, 953 F.2d 531, 537 (9th Cir.1992), the APA's waiver of the United States' sovereign immunity has an exception and that is if another statute expressly or impliedly forbids the relief sought. Statutes which often forbid the relief a plaintiff seeks in tax cases is the Anti-Injunction Act, 26 U.S.C. § 7421, and the Declaratory Judgment Act, 28 U.S.C. § 2201. Hughes, 953 F.2d at 537; Fostvedt v. United States, 978 F.2d 1201, 1203-04 (10th Cir.1992), cert. denied 507 U.S. 988, 113 S.Ct. 1589, 123 L.Ed.2d 155 (1993); Humphreys v. United States, 62 F.3d 667, 672 (5th Cir.1995). The magistrate judge in the case at bar properly recognized that both the Anti-Injunction Act and the Declaratory Judgment Act barred the present suit. The magistrate also found that the exception to the Anti-Injunction Act, See O'Hagan v. United States, 86 F.3d 776, 778-79 (8th Cir.1996), did not apply because the Plaintiff was not able to show that the government could not prevail, or that either he would suffer irreparable harm or that no adequate remedy at law existed. Specifically, the magistrate found that the Fifth Amendment did not excuse an individual from filing a tax return. As noted above, however, the Plaintiff does not dispute the government's ability to collect taxes or an individual's obligation to file a tax return, but does protest the signature under the penalty of perjury requirement. This Court finds this argument does not change the magistrate judge's conclusions because the Fifth Amendment does not give an individual the right to refuse to sign a tax return. Hettig v. United States, 845 F.2d 794, 795 (8th Cir.1988); Borgeson v. United States, 757 F.2d 1071, 1072-73 (10th Cir.1985); Buck v. United States, 967 F.2d 1060, 1061 (5th Cir.1992), cert. denied 506 U.S. 1082, 113 S.Ct. 1052, 122 L.Ed.2d 360 (1993).

As a result of the above case law and those cited within the magistrate judge's report and recommendation, this Court finds that the United States' sovereign immunity has not been waived and this Court lacks jurisdiction. Consequently, this case will be dismissed.

IT IS ORDERED:

1. Magistrate Judge Thalken's Report and Recommendation (filing 7) is adopted;

2. The Defendants' motion to dismiss (filing 2) is granted 3. The Plaintiff's objections to the report and recommendation (filing 8) are overruled; and

4. Separate judgment will be entered dismissing this case.

REPORT AND RECOMMENDATION

THALKEN, United States Magistrate Judge.

This matter comes before the court on the defendants' motion to dismiss (Filing No. 2). The plaintiff filed a "petition for writ of prohibition and/or mandamus" on November 5, 1999 (Filing No. 1). The motion to dismiss has been referred by District Judge William G. Cambridge for preparation of a Report and Recommendation. The court finds the defendants are immune from suit and the defendants' motion to dismiss should be granted.

BACKGROUND

The plaintiff filed a document entitled "petition for writ of prohibition and/or mandamus," in which he asks the court to find that the plaintiff cannot be compelled by the defendants to sign Internal Revenue Service (IRS) tax form 1040 because signing the form would violate his Fifth Amendment privilege against self-incrimination (Filing No. 1). The plaintiff invokes this court's jurisdiction pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331. Named as defendants are the United States of America Internal Revenue Service and Barbara Donahoo, a tax auditor with the IRS.

The plaintiff notes all Form 1040 tax forms contain a declaration of a penalty of perjury, the Internal Revenue Code (IRC) provides that any person who willfully fails to file a tax form is guilty of a misdemeanor, and any person who willfully makes a false statement on the form is guilty of a felony. The plaintiff asserts that, under the Fifth Amendment, he cannot be compelled to fill out any Form 1040 because, if the plaintiff signs the form, he may be subject to perjury for any false statement made on the form. Because there are no exceptions to the Fifth Amendment, the plaintiff asserts he cannot be charged with failure to submit a written statement or tax return.

The plaintiff asks the court to 1) issue a writ finding that the Fifth Amendment privilege against self-incrimination protects him from being compelled to file any written statement or tax form which contains a penalty of perjury clause; 2) order the prohibition of any investigation into the plaintiff's refusal to file a tax form because the United States cannot prevail against him; and 3) order the immediate return of any property in the possession of the IRS which was obtained to investigate the plaintiff.

Attached to the "petition" is a copy of a letter sent to the plaintiff by defendant Donahoo on June 3, 1999, which states the plaintiff has not filed any tax returns for tax years 1993 through 1997. Also attached is an affidavit of the plaintiff, in which he states he has not and will not sign any tax form because he cannot sign the form without waiving his Fifth Amendment privilege against self-incrimination.

DISCUSSION

The defendants' motion to dismiss asserts the action must be dismissed because the United States is immune from suit based on sovereign immunity and defendants IRS and Donahoo are not subject to suit (Filing No. 2).

Motions to dismiss under Fed.R.Civ.P. 12(b)(6) allow the dismissal of a complaint if it fails to state a...