Gonsalves v. IRS

• Decision Date: 28 April 1992
• Docket Number: Civ. No. 92-22-P-C.
• Citation: 791 F. Supp. 19
• Parties: Gilbert T. GONSALVES, Plaintiff, v. INTERNAL REVENUE SERVICE, District Directors, Andover, Augusta, Philadelphia, and Paul Chinouard PRO Portland, Me., Defendants.
• Court: U.S. District Court — District of Maine

791 F. Supp. 19

Gilbert T. GONSALVES, Plaintiff, v. INTERNAL REVENUE SERVICE, District Directors, Andover, Augusta, Philadelphia, and Paul Chinouard PRO Portland, Me., Defendants.

Civ. No. 92-22-P-C.

United States District Court, D. Maine.

April 28, 1992.

Gilbert T. Gonsalves, pro se.

David W. Newman, Tax Div., U.S. Dept. of Justice, Washington, D.C., David R. Collins, Asst. U.S. Atty., Portland, Me., for I.R.S.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

GENE CARTER, Chief Judge.

This action arises out of an internal revenue dispute between pro se Plaintiff Gilbert T. Gonsalves and the Internal Revenue Service ("IRS"). On January 15, 1992, Plaintiff filed his Complaint for monetary damages under the Due Process Clause of the Fifth Amendment of the United States Constitution.¹ He named Paul Chinouard, Problems Resolution Officer in Portland, Maine; and IRS District Directors for Andover, Massachusetts; Augusta, Maine; and Philadelphia, Pennsylvania as Defendants.

Plaintiff now asserts three claims constituting alleged constitutional violations by these IRS officials; namely, denial of his appeal rights under the internal revenue laws; failure to give notice and demand relative to assessments against him prior to issuing liens and levies; and use of delaying tactics in preventing him from concluding his tax differences.

Defendants have moved to dismiss Plaintiff's Complaint on several grounds, including res judicata, immunity, absence of any wrongful conduct, and insufficient pleading under Federal Rule of Civil Procedure 8(a), based in part on the "heightened pleading" standard in actions against government officials. For the reasons that follow, the Court will grant Defendants' Motion to Dismiss.²

I. Discussion

A.

Some courts have held that a Bivens action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 410, 91 S.Ct. 1999, 2011-12, 29 L.Ed.2d 619 (1971), for monetary damages may be brought against I.R.S. officials who were directly responsible in their individual capacity for alleged constitutional violations under the Due Process Clause of the Fifth Amendment. See Morales v. Haynes, 890 F.2d 708, 710 (5th Cir.1989); Yalkut v. Gemignani, 873 F.2d 31, 35 (2d Cir.1989); Hall v. United States, 704 F.2d 246, 249 n. 1 (6th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983); Flank v. Sellers, 661 F.Supp. 952, 954 (S.D.N.Y.1987). Cf. Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 986, 112 L.Ed.2d 1071 (1991); National Commodity and Barter Association, National Commodity Exchange v. Gibbs, 886 F.2d 1240, 1248 (10th Cir.1989); Cameron v. I.R.S., 773 F.2d 126, 129 (7th Cir.1985). Such officials are immune from suit, however, unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Morales, 890 F.2d at 710 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). See also Flank, 661 F.Supp. at 954.

At the outset, the Court notes that such a defendant cannot be liable for damages arising from an alleged constitutional violation unless he or she was personally involved in the commission of the acts complained of by the plaintiff.³ See Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir.1989) (court upholds government's argument that plaintiff failed to make any factual allegations in Bivens action that connect any of the individual defendants to the alleged illegal actions), cert. denied, 494 U.S. 1079, 110 S.Ct. 1807, 108 L.Ed.2d 938 (1990); Jackman v. D'Agostino, 669 F.Supp. 43, 47 (D.Conn.1987) ("Revenue Officer ... is absolutely immune since there is no causal connection between his acts and the alleged constitutional violation or the alleged resulting harm."); Gonzalez v. Leonard, 497 F.Supp. 1058, 1075 (D.Conn.1980) ("Even if Assistant Director for Investigations of the Hartford office of the INS were liable in an action under ... Bivens ... Commissioner of INS could not be held responsible for Assistant Director's conduct, since the principle of respondeat superior has no application in Bivens actions."). See also Morales, 890 F.2d at 709 ("The district court entered an order granting district director for the Dallas District of the I.R.S.'s motion to dismiss as an improper party.").

Here, Plaintiff has failed to plead that the named Defendants in his Complaint were personally involved in the commission of the alleged acts of which he complains. In the absence of any causal connection between their conduct and these alleged acts, Defendants are immune from suit, and Plaintiff's Complaint must be dismissed. Even if Plaintiff had shown in his Bivens action that Defendants were personally involved, however, the Court would still dismiss each count of his Complaint for the reasons that follow, based on Defendants' immunity under Harlow.

B.

i.

Plaintiff alleges in the first count of his Complaint that the appeal rights outlined in I.R.S. documents are legally enforceable safeguards of individual interests, and that he suffered substantially as a result of Defendants' denial of these "guaranteed privileges." Plaintiff's Complaint, ¶ 1.

Courts have held that denial of appeal rights under the Code, such as notice and opportunity for a hearing, does not violate due process under the Constitution. See, e.g., Stonecipher v. Bray, 653 F.2d 398, 403 (9th Cir.1981) (denial of hearing prior to determining that taxpayer was not entitled to claim exemption from federal income tax did not violate due process), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982).⁴

Here, the Court finds that I.R.S. officials did not violate any "clearly established" constitutional right in failing to conform strictly to internal appeals procedures, particularly where Plaintiff's due process rights are adequately protected by the statutory scheme of the Code. See Stonecipher, 653 F.2d at 403. Therefore, the Court finds that Defendants are immune from Plaintiff's Bivens action under Count I of his Complaint, which it will dismiss.

ii.

Plaintiff alleges in the second count of his Complaint that Defendants seized his funds in violation of due process under the Fifth Amendment. Plaintiff's Complaint, ¶ 2.

Courts have held that taxpayers' claims that I.R.S. officials have violated due process under the Fifth Amendment by seizing their property without notice fail to allege violations of "clearly established" constitutional rights. See, e.g., Wages, 915 F.2d at 1235 ("Defendants are clearly entitled to qualified immunity, since no prior decisions from our circuit have clearly established any of the constitutional rights alleged to have been violated in the amended complaint.") (emphasis in original) (dicta); Morales, 890 F.2d at 710 (I.R.S. officials' levy on taxpayer's property without notice is not violation of "clearly established" constitutional right); Yalkut, 873 F.2d at 35 ("Because Yalkut's complaint alleges no actions by defendants that violated a clearly established constitutional right to due process, defendants are immune from suit."); Baddour, Inc. v. United States, 802 F.2d 801, 807 (5th Cir.1986) ("A person alleging that his property has been wrongfully levied upon has an opportunity for `full judicial consideration, in an adversary context, of the validity of the levy.' More than that the Constitution does not guarantee." (quoting Myers v. United States, 647 F.2d 591, 603 (5th Cir. 1981))). See also Fuentes v. Shevin, 407 U.S. 67, 91-92, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972) ("The Court has allowed summary seizure of property to collect the internal revenue of the United States ...").

Here, the Court ruled in favor of the United States on January 30, 1992 at trial on whether it had wrongfully seized by levy Plaintiff's property under section 7433 of the Internal Revenue Code. Even if the currently named Defendants had wrongfully levied upon such property, however, the Court finds that such conduct would not constitute a violation of a "clearly established" constitutional right.⁵ Therefore, the Court finds that Defendants are immune from suit under Count II of Plaintiff's Complaint, which it will dismiss.

iii.

Plaintiff alleges in the third count of his Complaint that Defendants violated his "right" to "prompt and timely responses to his inquiries and unhindered progress in the settlement of differences with the I.R.S.." Plaintiff's Complaint, ¶ 4.

Courts have dismissed taxpayers' complaints where their claim is that "the IRS agents made mistakes, subjected the taxpayer to unnecessary inconvenience, failed to explore possibilities for settlement, or otherwise failed to come up to the highest standards of conduct for government officers dealing with citizens." Cameron, 773 F.2d at 128-29. See also American Association of Commodity Traders v. Department of Treasury, 598 F.2d 1233, 1236 (1st Cir.1979). As the Cameron court noted:

In an era of heavy taxation, many taxpayers, not merely "tax protesters," feel intense irritation at the federal tax authorities, and the courts would be flooded with frivolous cases if the unavoidable frictions generated by tax collection gave rise to potential damage claims against internal revenue agents. Maybe if the complaint "sketches a portrait of a lawless and arbitrary vendetta fueled by the power of the state, designed to harass by unwarranted intrusion into the minutiae of their financial affairs, and intended to abuse by the creation of palpably unfounded claims against their property which they can set to right only by unnecessary litigation," ... the taxpayer can resist a motion to dismiss; but that is not the portrait sketched by the present complaint. Even when liberally construed, this complaint, if true, shows only that internal revenue agents acted in a heavy-handed, insensitive,

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