Pollinger v. Internal Revenue Service Oversight Board, No. 09-12295. Non-Argument Calendar (11th Cir. 1/15/2010)

Decision Date15 January 2010
Docket NumberNo. 09-12295.,09-12295.
PartiesHARRY POLLINGER, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE OVERSIGHT BOARD, et al., Defendants, UNITED STATES, a Federal Corporation, a.k.a. United States of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

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HARRY POLLINGER, Plaintiff-Appellant,
v.
INTERNAL REVENUE SERVICE OVERSIGHT BOARD, et al., Defendants,
UNITED STATES, a Federal Corporation, a.k.a. United States of America, Defendant-Appellee.
No. 09-12295. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
January 15, 2010.

Appeal from the United States District Court for the Northern District of Florida, D. C. Docket No. 07-00013-CV-3-RV-MD.

Before BIRCH, CARNES and MARCUS, Circuit Judges.

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DO NOT PUBLISH

PER CURIAM:


Harry Pollinger ("Pollinger") appeals, pro se, the district court's grant of summary judgment on his claims that the government intentionally, recklessly, or negligently disregarded the law in connection with the collection of his federal income tax for tax years 2000 to 2002. The government moves us to sanction Pollinger for maintaining a frivolous appeal. After reviewing the record, we vacate in part for Pollinger's constitutional claims to be dismissed for lack of jurisdiction, affirm the district court's grant of summary judgment on the statutory claims, and deny the government's motion for sanctions.

I. BACKGROUND

A. Pollinger's Complaint

In January 2007, Pollinger filed a complaint against the United States, the Internal Revenue Service ("IRS") and others challenging the amount of tax liability assessed against him and the collection methods used, including garnishing his wages, seizing his bank accounts, and filing tax liens on his real estate. R1-1 at 1-2, 5-10. Liberally construed, Pollinger explained that he exchanged his life and liberty for wages, so government seizure of his wages was an illegal seizure of life and liberty. See id. at 15. He claimed the IRS had issued a notice of federal tax

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lien for tax years 2000-2002 and that he had exhausted all administrative remedies in that regard. Id. at 6, 9. The relief Pollinger sought included a finding that his property was improperly taken, an order that the tax liens be released, the return of all the property and money seized, statutory damages of $2 million, and costs/interest. Id. at 22-23.

Pollinger raised six claims: (1) the need to quiet title on his real estate, which the government was claiming an interest in, pursuant to 28 U.S.C. § 2410; (2) the government's failure to comply with 26 U.S.C. § 6213(a) by issuing procedurally invalid notices of deficiency, notices of levy, and notices of tax liens in violation of various constitutional provisions; (3) a violation of the Administrative Procedures Act ("APA") and the Due Process and Just Compensation Clauses of the Fifth Amendment by the IRS improperly asserting tax liability and taking his property; (4) the government's failure to comply with 26 U.S.C. § 7432 by issuing a procedurally improper tax levy and refusing to release the notice of lien, pursuant to 26 U.S.C. § 6325; (5) issuance of a bill of attainder by labeling him an illegal tax protester and taking his property without a trial and via procedurally invalid notices of levy and tax liens in violation of various constitutional provisions; and (6) illegal seizure of his labor in violation of the Just

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Compensation Clause of the Fifth Amendment and other constitutional provisions.1 Id. at 10-21.

B. Pollinger's Motion for Summary Judgment

In April 2008, Pollinger filed a motion for summary judgment on all claims. R1-47. He asserted that the government had taken his sweat equity and labor property from him by garnishing his wages, seizing his savings from his bank, and encumbering his real property. Id. ¶¶ 1-4, 6-7. Pollinger asserted for the first time that he exhausted his administrative remedies pursuant to 26 U.S.C. § 7433 and was filing a claim under § 7433 to recover damages from the IRS for its arbitrary seizures. Id. ¶¶ 8, 53-56. He argued that he was entitled to judgment because the government (1) did not establish a basis for tax liability on his compensation, and (2) improperly relied on the presumption of correctness of "Form 4340 — Certificate of Assessments" to show the amount of the tax assessment that applied to him and how that calculation was reached when the preparer of the form had no personal knowledge of the accuracy of the calculations the form contained. Id. ¶¶ 10-15, 23-31. Moreover, he contended that the tax lien against his property should

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be released because the notices of deficiency: (1) ambiguously cited "Individual Income" as a basis for liability, (2) did not articulate a relevant statutory basis for tax liability, (3) cited an irrelevant code section, 26 U.S.C. § 1040, as the statute under which he was liable for the taxes, and (4) did not provide a factual basis for his tax liability. Id. ¶¶ 16-22.

Pollinger argued that he was entitled to a basis or depreciation for the value of his labor and, because the government did not prove he was not entitled to a basis, his compensation was not shown to be income. Id. ¶¶ 33-44. Further, Pollinger argued that the government documents purporting to support his tax liability and penalties were not in compliance with the Paperwork Reduction Act, and thus the assessments were invalid. Id. ¶¶ 45-52. In support of his motion, Pollinger filed, inter alia, notices of deficiency for 2000 and 2001. Doc. 48, Exh. H.

Pollinger also filed a motion for "Fair and Impartial Rulings, Hearings [and] Trials not Steeped in Judicial Activism." R1-49 at 1. He asserted that courts often rubber stamp acts of the IRS because judges are federal employees. Id. at 1-2, 11-15. Pollinger explained his perceptions of bias and that he was filing the motion to preserve his common law rights. Id. at 2-6. He requested strict adherence to precedent rather than judicial activism or bias. Id. at 7-11, 15-19.

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C. Government's Motion for Summary Judgment

The government also filed a motion for summary judgment, asserting that Pollinger was clearly seeking relief pursuant to 26 U.S.C. § 7432 allowing civil damages for the government's failure to release a tax lien, not 26 U.S.C. § 7433, allowing damages for unauthorized collection actions. R1-51 at 4. The government explained that the IRS had followed proper procedures while assessing Pollinger's tax liability. Id. at 7-11. Regarding Pollinger's claim for quiet title, the district court lacked jurisdiction because the United States waived sovereign immunity only for procedural challenges to a tax lien, not the underlying merits of the tax assessment, but Pollinger was contesting the validity of the tax assessment underlying the lien on his property. Id. at 11-13. Pollinger's just compensation claim was without merit because the constitutionally authorized income tax did not violate the Constitution. Id. at 13. Moreover, due process was satisfied by the availability of judicial remedies. Id. at 13-14. Pollinger's argument that a bill of attainder was issued against him by the government's labeling him an "illegal tax protester" was misplaced because IRS records did not label him as such. Id. at 15. Additionally, any direct claim for money damages based on constitutional violations was also barred by sovereign immunity. Id. at 15-16.

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Next, the government asserted that to the extent Pollinger had raised a claim under 26 U.S.C. § 7433, the claim failed because he was improperly attempting to challenge the assessment of tax, and he had not shown any unlawful collection activity under § 7433. Id. at 16-19. Further, Pollinger had not exhausted his administrative remedies under § 7433, and, in any event, all assessments were proper and in accordance with IRS procedure. Id. at 19-20. Pollinger also had not exhausted administrative remedies regarding a claim under 26 U.S.C. § 7432 or for a refund under 26 U.S.C. § 7422. Id. at 20-23. Substantively, Pollinger's claim under § 7432 for improper failure to release a lien was without merit because Pollinger did not satisfy 26 U.S.C. § 6325 as he neither satisfied the liability nor posted a bond. Id. at 21-22.

Attached to the motion was a certified copy of the IRS's records of Pollinger's tax liabilities. R1-51, Exh. B at 1-31. Also attached was an affidavit from Catherine Sands, a registered pseudonym for an IRS revenue agent. R1-51, Sands Affidavit. According to Sands, the IRS determined Pollinger's tax liabilities for 2000 through 2002, created substitute returns for each year, and initiated collection actions for the tax liability. Id. ¶ 5. After the IRS issued a Notice of Federal Tax Lien and Notices of Intent to Levy for the liability arising out of 2000 and 2001, Pollinger requested a collection due process hearing. Id. ¶¶ 5-6. After

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the hearings, Pollinger received written decisions sustaining the decision to pursue collection. Id. ¶¶ 6, 9-10. IRS records indicated that a statutory notice of deficiency for 2002 was missing, but the individual masterfile showed that the notice was mailed to Pollinger's known address in September 2004, and that Pollinger did not timely petition the Tax Court thus defaulting on the notice. Id. ¶ 7. Sands stated that she had personal knowledge of the IRS record-keeping system, the system was kept in the regular course of IRS business, and the records did not show that Pollinger was designated as an "illegal tax protester." Id. ¶¶ 11-12.

D. Government's Response to Pollinger's Motion

The government responded to Pollinger's motion for summary judgment, arguing that Pollinger had not shown any waiver of sovereign immunity. R1-55 at 1. The only conceivable basis for recovery was 26 U.S.C. § 7433, which authorized actions for civil damages against the United States if an IRS employee acts unlawfully in the collection of federal tax. Id. at 4. However, Pollinger did not show any government act that fell within the purview of that statute or that he had exhausted his administrative remedies with regard to such a claim. Id. at 4-5. In particular, none of his exhibits showed that he made a proper administrative claim or...

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