Morrow v. United States .

• Decision Date: 12 July 2010
• Docket Number: Civil Action No. 09-555 (RBW).
• Citation: 723 F.Supp.2d 71
• Parties: Timothy MORROW, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

723 F.Supp.2d 71

Timothy MORROW, Plaintiff,

v.UNITED STATES, et al., Defendants.

United States District Court,District of Columbia. Timothy MORROW, Plaintiff,

v.

UNITED STATES, et al., Defendants. Civil Action No. 09-555 (RBW). July 12, 2010.

Timothy W. Morrow, Helena, MT, pro se.

Beatriz T. Saiz, Benjamin J. Weir, U.S. Department of Justice, Washington, DC, for Defendants.

Memorandum Opinion

REGGIE B. WALTON, District Judge.

Timothy Morrow, the pro se plaintiff in this civil case, seeks “damages [ ] in a[ ] sum certain to be determined by the Court,” Complaint (“Compl.”) at 25, for the alleged “denial of [his] right to due process of the tax law, administrative law, and record-keeping law of the United States,” id. at 1, as well as for the defendants' alleged “disregard of provisions of the tax law of the United States and regulations promulgated thereunder,” id. at 2. Currently before the Court is the defendant United States' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which the plaintiff opposes, Response to Motion to Dismiss Complaint (“Pl.'s Opp'n”). ¹ For the reasons set forth below, the United States' motion is granted in part and denied in part, and the plaintiff is granted limited leave to amend his Complaint.

I. BACKGROUND

The plaintiff filed his twenty-seven count Complaint on March 23, 2009, naming the “United States (Government),” the “IRS [Internal Revenue Service] Commissioner,” and “Unknown agent(s)” as the defendants. Compl. at 1. The Complaint is one of many pro se tax protest suits filed in this jurisdiction, asserting a variety of forms of misconduct by the Internal Revenue Service (the “IRS”), see Bean v. United States, 538 F.Supp.2d 220, 222 n. 1 (D.D.C.2008) (listing cases), and appears to be similar in many respects to the twenty-seven count complaint dismissed by Judge Huvelle in Scott v. United States, 608 F.Supp.2d 73 (D.D.C.2009).

The alleged violations of the Internal Revenue Code (the “Code”) listed in the Complaint fall broadly into two categories. Compl. at 8-24. ² Specifically, counts 1 through 18 are styled as “Bivens/Denial of Due Process of Tax Law” claims, ³ wherein the plaintiff contends that the defendants violated or disregarded the following provisions of the Code and their associated regulations ⁴ :

• 26 U.S.C. § 6001 and 26 C.F.R. § 1.6001-1(d), by failing to notify the plaintiff of the requirement to keep records, make statements, or file returns with respect to any tax imposed in the Code (Counts 1-2);

• 26 U.S.C. § 6020 and 26 C.F.R. § 301.6020-1, by failing to prepare or subscribe any substitute returns in the name of the plaintiff (Counts 3-6);

• 26 U.S.C. § 6103 and 26 C.F.R. § 301.6103(c)-1, by failing to disclose returns bearing the plaintiff's name to the plaintiff or the plaintiff's representative, upon request (Counts 7-8);

• 26 U.S.C. § 6109 and 26 C.F.R. § 301.6109-1, by improperly requiring that the plaintiff obtain and use a Social Security Number (Counts 9-10);

• 26 U.S.C. § 6201 and 27 C.F.R. Part 70, by failing to limit the plaintiff's tax assessments, or otherwise incorrectly or impermissibly assessing them and refusing to correct them (Counts 11-13);

• 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1, by failing to record or sign the assessments, or furnish signed copies of the assessments to the plaintiff (Counts 14-17); and

• 26 U.S.C. § 6211, by failing to promulgate regulations implementing the portions of the Code defining the term deficiency (Count 18).

See generally Compl. at 8-20.

In addition, counts 19 through 27 are styled as “[26 U.S.C.] § 7433/disregard in connection with collection,” where the plaintiff asserts that the defendants have violated or disregarded the following sections of the Code:

• 26 U.S.C. § 6301, by failing to develop and implement procedures concerning the review processes of the decisions to issue liens, levies, and the seizure of property (Count 19);

• 26 U.S.C. § 6303, by failing to give notice to the plaintiff within sixty days after making an assessment of the taxes owed (Count 20);

• 26 U.S.C. § 6304, by engaging in conduct that has the natural consequence to harass, oppress, or abuse the plaintiff in connection with the collection of unpaid tax (Count 21);

• 26 U.S.C. § 6320, by failing to afford the plaintiff a hearing where he could raise the issue of underlying tax liability (Count 22);

• 26 U.S.C. § 6321, by asserting liens without first giving proper notice or making a demand to the plaintiff (Count 23);

• 26 U.S.C. § 6751, by failing to verify in writing that a supervisor had approved, in writing, any initial tax penalty determination (Count 24);

• 26 U.S.C. § 6322, by asserting liens for which no assessment was made in accordance with 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1 (Count 25);

• 26 U.S.C. § 6323, by failing to certify notice of liens under Montana state law (Count 26); and

• 26 U.S.C. § 7213, by unlawfully disclosing the plaintiff's tax return information by filing notices of liens in stated amounts for which no record of such assessments exist (Count 27).

See generally Compl. at 20-24.

As an attachment to his Complaint, the plaintiff has submitted a statement of facts. Statement of Facts of Timothy Morrow (“Pl.'s Facts”). According to that document, beginning in approximately 1988, the plaintiff has received over 100 correspondences and telephone communications from unknown IRS agents, id. ¶ ¶ 1-2, which he states were “in an apparent attempt to collect [alleged] past due taxes.” Id. ¶ 3 (alteration in original). The plaintiff also claims that since approximately 1988 he has had at least three “face-to-face contacts with Unknown IRS agent(s),” id. ¶ 4, and also since that time the IRS has “filed several liens and/or levies against” him, resulting in the plaintiff being “forced to hire counsel to remove said liens and/or levies in order to maintain a tolerable living standard.” Id. ¶ 5.

The United States has moved to dismiss this case, arguing that the Court lacks subject matter jurisdiction over counts 1 through 19, 24, and 25 because those counts “are merely an improper attempt to challenge the underlying tax liability” and “do not relate to collection activities.” Def.'s. Mem. at 2. The United States also claims that the Court lacks subject matter jurisdiction over counts 1 through 19, stating that a “ Bivens cause of action is not available against the United States, which has not waived its sovereign immunity for such claims.” Id. at 3. As to the remaining counts, 20 through 23, 26 and 27, the United States moves to dismiss them pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that those counts “fail to provide the necessary factual detail to state a claim.” Id. at 4.

II. STANDARDS OF REVIEW

A. Motion to Dismiss Under Rule 12(b)(1)

A motion for dismissal under 12(b)(1) “presents a threshold challenge to the court's jurisdiction....” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987); see also Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (noting a Rule 12(b)(1) motion imposes an affirmative obligation on the court to ensure it is acting within its jurisdictional authority). Specifically, the Court should dismiss a claim if the Court “lack[s] ... subject matter jurisdiction [.]” Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), “it is presumed that a cause lies outside [a federal courts'] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence. See, e.g., Moore v. Bush, 535 F.Supp.2d 46, 47 (D.D.C.2008). In deciding a motion to dismiss based upon lack of subject matter jurisdiction, a Court is not limited to the allegations set forth in the complaint, but “may consider materials outside the pleadings....” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). And when reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court is required to accept as true all factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

B. Motion to Dismiss Under Rule 12(b)(6)

On the other hand, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C.2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), which is sufficient to “give the defendant fair notice of what the claim is and the grounds on which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotations omitted). Although Rule 8(a) does not require “detailed factual allegations,” a plaintiff is required to provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (internal quotations omitted). In other words, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint alleging facts that are “merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly...