Dockery v. U.S. Dept. of Treasury
Citation | 593 F.Supp.2d 258 |
Decision Date | 23 January 2009 |
Docket Number | No. 08-0806 (PLF).,08-0806 (PLF). |
Parties | Jasper L. DOCKERY, Plaintiff, v. UNITED STATES DEPARTMENT OF TREASURY, Internal Revenue Service, Defendant. |
Court | U.S. District Court — District of Columbia |
Jasper Lloyd Dockery, Pollock, LA, pro se.
Pat S. Genis, U.S. Department of Justice, Washington, DC, for Defendant.
This matter is before the Court on defendant's motion to dismiss. The motion will be granted.
Plaintiff brought this action against the United States Department of the Treasury, Internal Revenue Service ("IRS"), pursuant to 26 U.S.C. § 7433 ("Section 7433") alleging the unlawful collection of taxes for tax years ending December 31, 1994 and December 31, 2001. See Compl. at 1 & Ex. (Notices of Levy dated October 10, 2003 and December 2, 2006).1 Upon receipt of the Notices of Levy, Chevy Chase Bank FSB issued cashier's checks, dated October 16, 2003 and December 4, 2006, in the amounts of $4,670.26 and $1,952.06 respectively, deducting the funds from plaintiff's account. See id., Ex. (Cashier's Check Nos. 4166003 and 200041564).
Plaintiff sought "release [of the] levy and return of his money/property" on two grounds. Compl., Ex. (May 19, 2007 letter). First, he argued that "he is tax-exempt from the levy ... because he is a prisoner held in prison from February 6, 1996 until the current date, therefore, erroneous tax, [sic] on his property not subject to taxation." Id., Ex. (Letter to B.W. Dumars and Mr. Larkin captioned "Release of Levy and Notice of Release") at 2. In other words, he claimed to have had no earned income, wages, or other income subject to taxation, such that "the tax [was] levied without statutory authority." Id. Second, plaintiff explained that the only funds in his bank account were the proceeds of the settlement of a claim against the District of Columbia arising from an assault and resulting injuries to his eye and face sustained while incarcerated at the D.C. Jail. See id. at 10 & Ex. (May 19, 2007 letter) at 3. As such, plaintiff asserted that he received the funds through settlement of a personal injury action on which he owed no taxes. See id. at 10-11; Plaintiff's Motion Opposing Dismissal of Complaint ("Pl.'s Opp'n") at 6. Accordingly, plaintiff described himself as "a prisoner without funds unowed [sic] to satisfy IRS['s] wrongful demand full unowed payment of taxes only ti circumvent its wrongful action." Pl.'s Opp'n at 6.
Plaintiff alleges that the levies violate rights protected by the Fourth and Fifth Amendments to the United States Constitution, see Compl. at 12-13 (Counts One and Two), 17 (Count Seven), and constitute acts of negligence, see id. at 15-16 (Counts Four and Five), and other torts. See id. at 13-15 (Count Three), 16-18 (Counts Six and Eight). He demands compensatory and punitive damages. Id. at 18.
"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Such consent may not be implied; it must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The statute under which plaintiff brings this action, 26 U.S.C. § 7433, is only a limited waiver of sovereign immunity. See Buaiz v. United States, 471 F.Supp.2d 129, 135 (D.D.C.2007). In relevant part, Section 7433 provides that:
If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432 [ ], such civil action shall be the exclusive remedy for recovering damages resulting from such actions.
26 U.S.C. § 7433(a) (emphasis added).2 If the government is found liable, a plaintiff may recover "an amount equal to the lesser of $1,000,000 ($100,000, in the case of negligence) or the sum of—(1) actual, direct economic damages sustained by the plaintiff as a proximate result of the reckless or intentional or negligent actions of the officer or employee, and (2) the costs of the action." 26 U.S.C. § 7433(b).
Because the statute by its plain language provides a remedy only in connection with the collection of a federal tax, "a taxpayer cannot seek damages under [Section] 7433 for an improper assessment of taxes." Shaw v. United States, 20 F.3d 182, 184 (5th Cir.) (emphasis added), cert. denied, 513 U.S. 1041, 115 S.Ct. 635, 130 L.Ed.2d 540 (1994); Buaiz v. United States, 471 F.Supp.2d at 135 (); see Miller v. United States, 763 F.Supp. 1534, 1543 (N.D.Cal. 1991) ( ). "[T]o prove a claim for improper collection practices, the taxpayer must demonstrate that the IRS did not follow the prescribed methods of acquiring assets." Shaw v. United States, 20 F.3d at 184. Absent allegations that the IRS engaged in improper collection procedures, even if those procedures followed an improper assessment activity, plaintiff cannot collect damages under Section 7433. See id.
Defendant characterizes plaintiff's claims as arising from the "improper assessment, not the unauthorized collection [,]" of taxes for the tax years in question. Memorandum in Support of Defendants' Motion to Dismiss Complaint at 5 (emphasis in original). The Court concurs. Plaintiff claims that he did not owe income taxes at all, rendering the IRS' collection activities improper. On this theory, he purports to challenge the IRS' levy and collection of taxes from funds in his Chevy Chase Bank account in such a way that his claims fall within the waiver of sovereign immunity afforded under Section 7433. While it is true that the issuance of a Notice of Levy is a collection activity, see Bryant v. United States Gov't, 527 F.Supp.2d 137, 141 (D.D.C.2007); Brewer v. Comm'r of Internal Revenue, 430 F.Supp.2d 1254, 1260 (S.D.Ala.2006), the issuance of a Notice of Levy "does not transform the taxpayer's complaint into alleging improper collection procedures." Brewer v. Comm'r of Internal Revenue, 430 F.Supp.2d at 1260.
The Court concludes that plaintiff's claims arise from the IRS' assessment of taxes rather than from the collection of taxes by levy. These claims, therefore, fall beyond the scope of Section 7433's limited waiver of sovereign immunity, thus depriving this Court of subject matter jurisdiction. See Eliason v. United States, 551 F.Supp.2d 63, 65 (D.D.C.2008) ( ); Gunnink v. United States Gov't, No. 08-781, 2008 WL 3166308, at *5 (D.Minn. Aug. 4, 2008) ( ); Springer v. United States, No. 08-CV-004-GKF-FHM, 2008 WL 4980892, at *1 (N.D.Okla. Nov. 24, 2008) ( ); Buaiz v. United States, 471 F.Supp.2d at 136 ( ); McCarty v. United States, No. 01-4942, 2002 WL 31934287, at *4 (D.N.J. Nov. 13, 2002) (...
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