Purk v. US

• Decision Date: 12 April 1989
• Docket Number: No. C-3-88-516.,C-3-88-516.
• Citation: 747 F. Supp. 1243
• Parties: Dwight PURK, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

747 F. Supp. 1243

Dwight PURK, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. C-3-88-516.

United States District Court, S.D. Ohio, W.D.

April 12, 1989.

Dwight Purk, Piqua, Ohio, pro se.

Jan M. Holtzman, Asst. U.S. Atty., Dayton, Ohio, Gerald C. Miller, Tax Div., Dept. of Justice, Washington, D.C., for defendants U.S., I.R.S. and Liz Dwyer.

Joseph A. Castrodale, Bruce J.L. Lowe, Cleveland, Ohio, for defendants Hartzell Propeller and Shirley Fuller.

Edward R. Goldman, Cincinnati, Ohio, for defendant TRW.

DECISION AND ENTRY GRANTING MOTIONS TO DISMISS OF ALL DEFENDANTS (DOC. # 17, # 18, # 77); MOTION TO SUBSTITUTE UNITED STATES AS SOLE DEFENDANT BY DEFENDANT LIZ DWYER (DOC. # 46) TREATED AS MOTION TO DISMISS AND MOTION SUSTAINED; TERMINATION ENTRY

RICE, District Judge.

This case is now before the Court on the Motions to Dismiss of Defendants Hartzell Propeller and Shirley Fuller (Doc. # 17), Defendant TRW, Inc. (Doc. # 18), and Defendant United States (Doc. # 77) and the Motion to Substitute the United States as Sole Defendant by Defendant Liz Dwyer (Doc. # 46). The Motion of Defendant Liz Dwyer is treated as a Motion to Dismiss. For reasons set forth below, all motions are granted and the captioned cause is terminated.

A. Introduction

The material facts going to the Motions to Dismiss are not significantly in dispute. The bulk of Plaintiff's voluminous filings consists of claims and arguments going toward legal questions. The Court has experienced some difficulty in going through Plaintiff's filings, many of which are duplicative and many of which are composed of materials which Plaintiff has copied from sources advocating what have been characterized by the courts as tax protester arguments (see, e.g. Doc. # 84 and its 111-page attachment). The materials presented in some ways do superficially support many of Plaintiff's claims. However, a number of the supporting materials are fatally outdated, and in most of the materials statutory and case law language is taken out of context and misapplied. All cases, statutes, and legislative history which overrule, criticize or explain the materials presented in a manner contrary to the position advocated by the party or parties from whom Plaintiff has obtained the materials are totally disregarded. The materials reflect only what those who have prepared the materials believe the law should be, not what the law is. With apparent sincerity, and an expenditure of considerable effort, Plaintiff has based his position on materials that are one-sided, incomplete, and just plain wrong. Nonetheless, this Court has found that at least one significant irregularity, since remedied (see following paragraph), did take place in IRS actions relating to Plaintiff's 1985 tax liability (see Doc. # 54). In spite of the deluge of legally suspect and/or misapplied citations of authority and seemingly irrelevant supporting materials which have inundated this Court in never ending waves, the Court has carefully examined Plaintiff's filings in an attempt to identify the claims Plaintiff may have or may be asserting and any underlying merit in those claims.

At issue in this case are assessments made against Plaintiff for federal tax liability for the years 1981 through 1984 and amounts arising therefrom levied upon Plaintiff. An assessment initially made against Plaintiff for the 1985 tax year, in violation of the notice provisions of 26 U.S.C. § 6212, was reversed and all actions pursuant thereto were likewise reversed or withdrawn (see Doc. # 54, p. 2). Plaintiff protests the making of the assessments and levy and the underlying tax liability, basing his claim on a number of grounds (Doc. # 84, ¶¶ 2, 6, 13, 15). Plaintiff seeks, inter alia, to have this Court enjoin the Government from enforcing the levies, to have amounts already collected returned, to have all the exemptions Plaintiff lists on his W-4 forms honored, and to have this Court order an award of damages for pain, suffering, and mental anguish (Doc. # 84, ¶¶ 1, 4, 11).

B. Claims Against the Government

1. Sovereign Immunity

Defendant, the United States (the Government), has filed a Motion to Dismiss on grounds that it is immune from suit on the claims now brought by Plaintiff (Doc. # 78, p. 2). The United States is immune from suit under the doctrine of sovereign immunity except as it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Further, "a waiver of sovereign immunity `cannot be implied but must be unequivocally expressed.'" Mitchell, 445 U.S. at 538, 100 S.Ct. at 1351. Although the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., waives to some extent the government's immunity, § 2680(c) of that Act provides an exception for a claim for relief arising from the assessment and collection of taxes and precludes suit therefor. Section 7421 (the Anti-injunction Act) of the Internal Revenue Code (Title 26 U.S.C.) provides, with three very narrow exceptions, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person."

2. Statutory Waivers of Immunity

Plaintiff asserts that under 26 U.S.C. § 7804(b) his right to a jury trial in federal court on a challenge to the legality of his taxes is assured (Doc. # 84, ¶¶ 1, 10). This section, however, does not provide an independent basis for jurisdiction, but ensures the availability of a jury trial where a plaintiff has already established jurisdiction, as by paying the deficiency and suing for a refund in federal district court under § 7422 of the Code. Engh v. United States, 658 F.Supp. 698, 701 (N.D. Ill.1987). Such is not the case here. The guarantee of a jury trial in United States v. Anderson, 584 F.2d 369 (10th Cir.1978), cited by Plaintiff (Doc. # 84, ¶ 1), attached to an action brought by the Government pursuant to 26 U.S.C. § 7402, a provision which establishes federal district court jurisdiction where the Government brings suit to enforce Internal Revenue laws and which is inapplicable in a case brought by a party challenging the imposition of taxes. Plaintiff correctly contends that he cannot be "forced to bring his action in Tax Court rather than in federal district court" (Doc. # 84, ¶ 2). The Internal Revenue Code provides individuals who wish to challenge tax assessments with the option to pursue either of two alternate routes—(1) going to Tax Court under § 6213, which permits a challenge before the deficiency is paid, or (2) paying the deficiency, filing a claim for refund, and then proceeding in federal district court under § 7422. Suits to restrain the assessment or collection of tax, with two other exceptions not applicable herein (see Doc. # 65 regarding § 6212), are otherwise prohibited under § 7421.

Thus, although Plaintiff is correct in asserting that § 6213 establishes a basis for jurisdiction as an exception to the Anti-injunction Act, § 6213, by its express terms, provides jurisdiction in the Tax Court, not in the federal district court.

Plaintiff also asserts, correctly, that 28 U.S.C. § 1346(a)(1) provides a basis for federal court jurisdiction over suits for the recovery of Internal Revenue taxes; however, that jurisdiction extends only as far as the United States has waived its sovereign immunity and consented to such suits, as for example under § 7422, which requires that the challenged tax first be paid. See, e.g., Anchor Pointe Boat-a-Minium Association v. Vern Meinke, 860 F.2d 215 (6th Cir.1988); Erdman v. United States, 815 F.2d 703 (Table) full text available on WESTLAW 1987 WL 36908, 1987 U.S.App. LEXIS 4022 (6th Cir. March 31, 1987).

Proceeding in Tax Court would provide Plaintiff with the "appeal and ... determination of his liability for the tax prior to its payment" to which he asserts he is entitled (Doc. # 25, ¶¶ 4, 5). However, Plaintiff has elected not to proceed in that court. Suit in federal district court under § 7422 would provide Plaintiff with the Article III court forum to which he also asserts he is entitled (Doc. # 25, ¶¶ 6, 10). However, Plaintiff has not fulfilled the conditions which would allow him to proceed therein, namely, prior payment of the tax. Plaintiff appears to contend that Tax Court is not available to him as a forum in which he can exercise his right to challenge a deficiency before payment, on the grounds that he is not a "taxpayer," and that either this fact, in and of itself, or the fact that he has challenged the "jurisdiction of the IRS" somehow establish a basis for jurisdiction only in this Court (Doc. # 25, ¶ 12). These arguments have been addressed frequently, both in Tax Court and in Article III courts, and the Sixth Circuit, by whose holdings this Court is bound, has specifically found that the "not a taxpayer" and related jurisdictional arguments are "baseless." Martin v. Commissioner, 756 F.2d 38, 40 (6th Cir.1985).

3. Criminal Jurisdiction

Plaintiff also appears to argue that he is entitled to the jurisdiction of this Court because § 6653(b) penalties have been imposed on him, thereby, he alleges, confronting him with criminal jeopardy (Doc. # 25, ¶¶ 8, 9). In support of this jurisdictional argument, Plaintiff cites Coffey v. United States, 116 U.S. 436, 437, 6 S.Ct. 437, 438, 29 L.Ed. 684 (1886); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); and Iowa v. Chicago B & Q Railway Company, 37 F. 497 (C.C.S.D. Iowa 1889) (Doc. # 84, ¶ 14). These cases deal with the effect of quasi-criminal penalties on specific, nominally civil actions unrelated to taxes, and are of questionable validity as precedent. In addition, Iowa v. Chicago B & Q R. Co. relies for its reasoning on two cited nineteenth-century Supreme Court cases, which have been limited, questioned, and disapproved. See, e.g., Butcher v. Bailey, 753 F.2d 465, 468 (6th...