Nassar v. US, Civ. A. No. 91-75074.

• Decision Date: 12 May 1992
• Docket Number: Civ. A. No. 91-75074.
• Parties: Edwin V. NASSAR, Plaintiff, v. UNITED STATES of America (John Hummel, District Director, Internal Revenue Service), Defendant.
• Court: U.S. District Court — Western District of Michigan

792 F. Supp. 1040

Edwin V. NASSAR, Plaintiff, v. UNITED STATES of America (John Hummel, District Director, Internal Revenue Service), Defendant.

Civ. A. No. 91-75074.

United States District Court, E.D. Michigan, S.D.

May 12, 1992.

Edwin V. Nassar, pro se.

Stephen J. Markman, U.S. Atty. by John V. Cardone, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT'S JANUARY 6, 1992 MOTION TO DISMISS

GADOLA, District Judge.

The government filed a motion to dismiss January 6, 1992. The court believes that plaintiff's February 26, 1992 letter was filed as a response to the motion. Pursuant to LR 7.1(e)(2) (E.D.Mich. Jan. 1, 1992), no oral argument will be heard.

STANDARD OF REVIEW

Upon a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or 12(c), all allegations in the complaint are to be accepted as true and construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); United States v. Mississippi, 380 U.S. 128, 143, 85 S.Ct. 808, 816, 13 L.Ed.2d 717 (1965).

The court's inquiry is limited to whether the challenged pleadings set forth allegations sufficient to make out the elements of a right to relief. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984); Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983). The complaint should not be dismissed unless it appears without doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Lee v. Western Reserve Psychiatric Habilitation Ctr., 747 F.2d 1062, 1065 (6th Cir.1984).

BACKGROUND FACTS

Plaintiff served John Hummel, district director of the Internal Revenue Service ("IRS"), with a complaint seeking a refund of taxes collected through a wage levy and injunctive relief enjoining the IRS from any further collection activities. Service upon the United States is effected by delivering a copy of the summons and the complaint to the United States attorney for the district in which the action is brought and by sending a copy of the summons and the complaint by registered or certified mail to the Attorney General of the United States at Washington, D.C. Fed.R.Civ.P. 4(d). Despite plaintiff's failure to properly serve defendant, the court will proceed to the merits of the claim.

Plaintiff admits that he filed no federal income tax form 1040 for the years 1985 and 1986. Plaintiff's compl. at 8. On December 10, 1988, a delegate of the Secretary of the Treasury, pursuant to I.R.C. § 6020(b)¹, executed Form 1040 tax returns for the plaintiff for the years 1985 and 1986. Pursuant to section 6201² and section 6203³, a delegate of the Secretary of the Treasury assessed the plaintiff for income tax deficiencies for 1985 and 1986. On December 25, 1989, a deficiency of $5,923 plus statutory penalties and interest was assessed for 1985. On February 2, 1990, a deficiency of $7,481 plus statutory penalties and interest was assessed for 1986. See defendant's ex. 1 at 1 (Form 4340, Certificate of Assessments and Payments for 1985); defendant's ex. 2 at 1 (Form 4340 for 1986).⁴

Pursuant to these assessments, a delegate of the Secretary of the Treasury duly issued notices of the assessments and demand for payment to the plaintiff. See defendant's ex. 1 at 3; defendant's ex. 2 at 2.⁵ On January 15, 1990, and February 26, 1990, a delegate of the Secretary of the Treasury duly issued notices of an intent to levy on the plaintiff's property. See defendant's ex. 3 at para. 5 (Declaration of Jerry R. Abraham). Plaintiff has failed to duly file a claim for a refund for 1985 or 1986 federal income taxes. See defendant's Ex. 4 (Declaration of John V. Cardone).

Plaintiff appears to be under a misapprehension of what constitutes a claim for a refund. He admits to filing no federal income tax forms for 1985 or 1986 (complaint at 8); therefore, he cannot validly claim in paragraph 5 of the complaint that a refund is due based upon his 1985 and 1986 1040 federal tax forms.⁶ Plaintiff may believe, however erroneously, that an administrative appeal of a filing of a notice of federal tax lien is a valid claim for a refund (plaintiff's mem., ex. G) or that a refund of monies based upon a tax form for 1984 constitutes a claim for 1985 and 1986 as well (complaint at para. 5.2). As noted below, any such belief would be in error.

ANALYSIS

I. SOVEREIGN IMMUNITY

A claim made against a defendant in his official capacity is deemed to be a claim against the United States. Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947); Mine Safety Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140 (1945); Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755 (1918). Plaintiff's complaint all but admits that he is suing the district director in his representative capacity. The caption of the complaint does not include the director's name, merely his title. In addition, plaintiff alleges that he is suing the district director for the actions of his employees. Complaint at 3.

Although not named in the caption, the complaint is read to be against the United States as the only party. A suit is against the sovereign if:

the judgment sought would expend itself on the public treasury or domain, or interfere with public administration or it the effect of the judgment would be to restrain the Government from acting, or compel it to act.

Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Plaintiff seeks an injunction against the IRS and a refund of monies collected for the tax years 1985 and 1986. This relief would affect the government's taxing and revenue collection activities and would be an expense upon the public treasury. See Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (a suit against a public servant in his official capacity involves only the liability of the governmental entity). Therefore, under Dugan, plaintiff's suit is against the United States.⁷

The United States, as sovereign, may be sued only to the extent to which it has consented by statute. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity cannot be implied; rather, it must be unequivocally expressed by an act of Congress. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). Because plaintiff has failed to cite any waiver of immunity by the United States, plaintiff's suit is barred by the doctrine of sovereign immunity. See also Bothke v. United States, 670 F.Supp. 285, 287 (C.D.Cal.1987) ("the bar of sovereign immunity cannot be avoided by having officers and employees of the United States as defendants"); 28 U.S.C. § 2680(c) (Federal Tort Claims Act does not apply to any "claim arising in respect of the assessment or collection of any tax").

Plaintiff cites 28 U.S.C. § 1331, as the jurisdictional basis for this action. It provides that "the District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." However, section 1331 does not waive sovereign immunity; it merely gives the district courts jurisdiction to hear federal claims that are not otherwise barred. See Donohue v. United States, 437 F.Supp. 836, 841 (E.D.Mich. 1977); see also Lonsdale v. United States, 919 F.2d 1440 (10th Cir.1990); Arvanis v. Noslo Eng'g, 739 F.2d 1287, 1290 (7th Cir. 1984); Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984). Accordingly, plaintiff's claims are barred by the doctrine of sovereign immunity.

II. ANTI-INJUNCTION ACT

Plaintiff's request that the United States be enjoined from levying on plaintiff's wages or pursuing any other collection activities is precluded by the Anti-Injunction Act, 26 U.S.C. § 7421. Section 7421 provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any Court...."⁸ This statute protects the government's revenue collection process from interference and disruption. Enochs, 370 U.S. at 6-7, 82 S.Ct. at 1129; Bilbo v. United States, 633 F.2d 1137, 1139 (5th Cir.1981); In re Carlson, 580 F.2d 1365, 1369 (10th Cir.1978).

The Anti-Injunction Act includes judicial action as part of the interference protected against. Alexander v. "Americans United," Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974). Plaintiff requests that this court enjoin the United States from collecting taxes, which it is owed; however, the Anti-Injunction Act bars this court from granting injunctive relief. See Griffith v. Commissioner, 598 F.Supp. 405, 406 (N.D. Ohio 1983) ("The purpose of the Anti-Injunction Act is to give the United States a free hand in assessing and collecting taxes without interference by the courts and to limit determination of disputed sums to suit for refund."); see also Martinon v. Fitzgerald, 306 F.Supp. 922, 924 (S.D.N.Y.1968) (section 7421(a) withdraws from federal courts the jurisdiction to enjoin collection of federal taxes), aff'd, 418 F.2d 1336 (2d Cir.1969). Therefore, plaintiff's complaint must be dismissed for failure to state a claim upon which relief can be granted.

III. FAILURE TO FILE A CLAIM FOR REFUND

In suits for tax refunds, the United States has consented to be sued, but only when the taxpayer follows the conditions set forth in I.R.C. § 7422(a). The section provides that "no suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or...