Erickson v. Luke
| Decision Date | 09 January 1995 |
| Docket Number | No. CV 94-0134-E-EJL.,CV 94-0134-E-EJL. |
| Citation | 878 F. Supp. 1364 |
| Parties | Coit & Evelyn ERICKSON, Plaintiffs, v. Ron LUKE, an individual, Hester Pulling, an individual, Keith Farrar, an individual, All other John Does to be added, Timothy Towns, an individual, Defendants. |
| Court | U.S. District Court — District of Idaho |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Coit & Evelyn Erickson, pro se.
Richard R. Ward, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
On December 1, 1994, United States Magistrate Judge Mikel H. Williams issued a Report and Recommendation, recommending that the federal defendants named in plaintiffs' complaint be dismissed, and the United States be substituted as the sole defendant in this case, and that the defendant's motion to dismiss be granted; that the plaintiffs' motion for declaratory judgment be denied; and that this case be dismissed in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the Report and Recommendation. Neither party has objected to Judge Williams' recommendation. This court may, therefore, accept, reject or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Id.
Because this court finds the Report and Recommendation of Judge Williams to be well founded in law and supported by the record, the court hereby accepts in their entirety, and adopts as its own, the findings made by Judge Williams. Acting on the recommendation of Judge Williams, and this court being fully advised in the premises,
IT IS HEREBY ORDERED that Judge Williams' Report and Recommendation entered on December 1, 1994, (Dkt. No. 24) should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety.
IT IS FURTHER ORDERED that the defendant's motion to dismiss (Dkt. No. 6) is GRANTED; that the plaintiffs' motion for declaratory judgment (Dkt. No. 11) is DENIED; and this case is hereby DISMISSED IN ITS ENTIRETY.
Plaintiffs are taxpayers who have brought this action stemming from the alleged wrongful collection of taxes by the Defendants, who are employees of the Internal Revenue Service. Upon due consideration, the Court recommends (1) that the United States should be substituted in place of the individual Defendants; (2) sovereign immunity shields the United States from suit under these circumstances; (3) a quiet title action against the United States will not lie because Plaintiffs are contesting the substantive rather than the procedural validity of a tax lien; (4) the Anti-Injunction Act, 26 U.S.C. § 7421, prohibits issuance of an injunction under these circumstances; and (5) that the Complaint should be dismissed because it appears beyond doubt that no set of facts can be proved in support of this claim which would entitle Plaintiffs to relief.
This matter is before the Court for all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and District Judge Lodge's Order of Reference entered September 15, 1994. Currently pending before the Court is Defendants' Motion to Dismiss (Dkt. # 6) filed May 21, 1994, and Plaintiff's Motion for a Declaratory Judgment (Dkt. # 11) filed July 22, 1994.
On October 11, 1994, a notice was sent via the United States mail to the latest address the Court had for each of the parties. This notice indicated that a hearing would be held on pending motions in this matter on November 30, 1994. On November 30, 1994, Richard Ward appeared on behalf of the Defendants. However, the Plaintiffs did not make an appearance nor did they inform the Court as to any emergency or other conflict they had with the hearing scheduled for November 30, 1994. Accordingly, the Court has decided to forego oral argument and will consider the matter based on the record.
Plaintiffs, Coit and Evelyn Erickson (hereinafter "the Ericksons"), are residents of the state of Idaho residing in Blaine County. Defendants Ron Luke, Hester Pulling, Keith Farrar, and Timothy Towns (hereinafter "the Federal Defendants"), are employees of the Internal Revenue Service, an agency of the United States government.
This action arises out of collection activities undertaken by the Federal Defendants to satisfy unpaid federal income taxes, described by the IRS as a "1040" kind of tax, which the IRS claims that the Ericksons own for the tax periods ending December 31, 1985, December 31, 1988, December 31, 1989, and December 31, 1990.
On July 28, 1993, the IRS filed a notice of federal tax lien against property owned by the Ericksons in Jerome County, Idaho, and a notice of federal tax lien against property owned by the Ericksons in Blaine County, Idaho. The notice was signed by Defendant Keith Farrar for Defendant Ron Luke.
On August 20, 1993, Defendant Ron Luke filed a levy against so much of the property or rights to property, either real or personal, of the Ericksons as may be necessary to pay "1040" taxes that were due and owing by the Ericksons.
Also on August 20, 1993, the IRS seized a parcel of real property located in Jerome County, Idaho. The Notice of Seizure filed by the IRS indicated that the parcel consists of approximately four acres of land, containing a mobile home enclosed by a wood frame house and a detached garage as well. The Notice of Seizure was signed by Defendants Ron Luke and Hester Pulling.
The Ericksons claim that this parcel of land is actually owned by a third party named Milton Harkness. Plaintiff's allege that the seizure of this parcel was therefore wrongful and outside the scope of the Federal Defendants authority. Milton Harkness is not a party to this action. The Ericksons further maintain that the seizure of their real property and the levy against their other property was wrongful because of alleged procedural defects, including the IRS's failure to obtain a court order, lack of authorization to issue notices of levy and notices of federal tax lien, and the alleged illegitimacy of the IRS's Notice of Levy and Notice of Federal Tax Lien because they are based on an "improper tax," namely the individual income tax (form 1040).
By way of a Complaint filed March 4, 1994, Plaintiffs bring the following causes of action against the Federal Defendants: (1) slander of title to all their property; (2) conspiracy to counterfeit a security; (3) clouding title to their real property; (4) fraud; and (5) action taken in the absence of statutory authority.
Plaintiffs seek $500,000.00 in punitive damages, costs, a decree quieting title to the property on which the IRS has placed federal tax liens or seized and an injunction prohibiting the IRS from "further unlawful harassment" of them.
The Federal Defendants alternatively argue that the Complaint should be dismissed because of improper service on the individual defendants or that the United States should be substituted as a party in place of the individual defendants, and the Complaint dismissed for failure to state a claim upon which relief can be granted.
The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the claim for relief by addressing itself solely to the failure of the complaint to state a claim. When the court is testing the sufficiency of the claims for relief, the complaint should be construed in a light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir.1984). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Reddy v. Litton Industries, Inc., 912 F.2d 291, 293 (9th Cir.1990). The issue is not whether the plaintiff will ultimately prevail or is likely to prevail, but whether the claims is entitled to offer evidence to support the claim. Scheuer, 416 U.S. at 240, 94 S.Ct. at 1688.
The factual allegations contained in the Plaintiffs' Complaint basically allege that the IRS defendants prepared official IRS forms, including notices of federal tax lien and notices of levy and that they seized Plaintiffs' personal property and a parcel of real property in satisfaction of a tax debt. These factual allegations do not indicate that the Federal Defendants acted in any capacity other than their official capacities as IRS employees. The Plaintiffs, nonetheless, contend that the Defendants were acting without statutory authority because (1) the IRS's Notice of Levy and Notice of Federal Tax Lien were illegitimate as based on an improper tax, namely, the individual income tax; (2) IRS employees are not authorized to issue notices of levy and notices of federal tax lien; and (3) the Federal Defendants did not have a court order to seize the property in question.
Plaintiffs' argument that the IRS's Notice of Levy and Notice of Federal Tax Lien were illegitimate as based on an improper tax is based on Plaintiffs' contention that the phrase "1040" on the tax forms did not properly identify the kind of tax that the IRS claimed was due and owing. To the extent that the Plaintiffs are arguing that the individual income tax is an invalid tax, their contention is frivolous. See Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir.1990). Furthermore, the Court finds that "1040" is — for the purposes of notice of levy and notice of federal tax lien forms — sufficient to give notice that the kind of tax claimed due and owing is individual income tax.
Plaintiffs' arguments that the IRS agents did not have...
To continue reading
Request your trial
-
People of Cal. ex rel. Ervin v. District Director
...Alexander v. "Americans United" Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). As explained in Erickson v. Luke, 878 F.Supp. 1364, 1372 (D.Idaho 1995): Whether the Government has a chance of ultimately prevailing is to be determined based upon the information available to th......
-
United States v. Kuyper
...was "inconceivable that plaintiff . . . was not aware that the levy notices pertained to his income tax liability"); Erickson v. Luke, 878 F.Supp. 1364, 1369 (D.Idaho 1995) ([T]he Court finds that '1040' is—for the purposes of notice of levy and notice of federal tax lien forms—sufficient t......
-
Kline v. U.S. Bank
...WL 909642, at *7 (W.D.N.Y. Mar. 31, 2009); Bean v. Gen'l Elec. Co., 593 F. Supp. 2d 306, 309-10 (D. Mass. 2009); Erickson v. Luke, 878 F. Supp. 1364, 1369 (D. Idaho 1995); see also United States v. Nat'l Bank of Commerce, 472 U.S. 713, 720-21 (1985). There is no basis in law or fact for the......