Ross v. U.S., Civil Action No. 06-0963 (JDB).

• Decision Date: 10 November 2006
• Docket Number: Civil Action No. 06-0963 (JDB).
• Citation: 460 F.Supp.2d 139
• Parties: Jimmie D. ROSS, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of Columbia

460 F.Supp.2d 139

Jimmie D. ROSS, et al., Plaintiffs, v. UNITED STATES, Defendant.

Civil Action No. 06-0963 (JDB).

United States District Court, District of Columbia.

November 10, 2006.

COPYRIGHT MATERIAL OMITTED

Jimmie D. Ross, Sevierville, TN, pro se.

Pamela A. Ross, Sevierville, TN, pro se.

Jennifer Lynn Vozne, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BATES, District Judge.

This action is one of more than seventy cases in which dozens of individuals across the nation have filed complaints (in a pro se capacity) in this Court seeking damages for alleged misconduct by the Internal Revenue Service ("IRS") in the collection of taxes. Plaintiffs also seek replevin of property that the IRS has allegedly taken from them and an injunction against further IRS actions in disregard of the law. Plaintiffs have invoked the damages cause of action in the Taxpayer Bill of Rights ("TBOR"), 26 U.S.C. § 7433, as the primary basis for relief, as other similar plaintiffs typically have done. Plaintiffs in this action also have invoked a panoply of other statutory authorities to support their claims for relief: the Administrative Procedure Act, 5 U.S.C. §§ 704-06; the All Writs Act, 28 U.S.C. § 1651; the Mandamus Act, 28 U.S.C. § 1361; and unspecified provisions of the Freedom of Information Act, the Privacy Act, the Federal Records Act, and the National Archives Act. Presently pending before the Court is defendant's motion to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

BACKGROUND

I. Statutory and Regulatory Background

Section 7433(a) of the Internal Revenue Code ("Code") authorizes taxpayers to bring an action for civil damages against any officer or employee of the IRS who acts in disregard of the Code or its implementing regulations in connection with collection activity. The provision authorizing this cause of action states:

If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

26 U.S.C. § 7433(a).

Section 7433(d)(1), however, limits such actions, by providing that "[a] judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433(d)(1). In accordance with this provision, the IRS has promulgated regulations that establish procedures to be followed by a taxpayer who believes that IRS officers or employees have disregarded provisions of the tax code in their collection activities. See 26 C.F.R. § 301.7433-1. Specifically, these regulations require that, prior to bringing suit in court, an aggrieved taxpayer must first submit his or her claim "in writing to the Area Director, Attn: Compliance Technical Support Manager[,] of the area in which the taxpayer currently resides," and further require that the claim must include:

(i) The name, current address, current home and work telephone numbers and any convenient times to be contacted, and taxpayer identification number of the taxpayer making the claim;

(ii) The grounds, in reasonable detail, for the claim (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service);

(iii) A description of the injuries incurred by the taxpayer filing the claim (include copies of any available substantiating documentation or evidence);

(iv) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and

(v) The signature of the taxpayer or duly authorized representative.

26 C.F.R. § 301.7433-1(e). If such a claim is filed and the IRS has either issued a decision on the claim or has allowed six months to pass from the date of filing without acting on it, the taxpayer may proceed to file suit in federal district court pursuant to 26 U.S.C. § 7433(a). See 26 C.F.R. § 301.7433-1(d)(1). The regulations also allow the taxpayer to file suit immediately after the administrative claim is submitted if the administrative submission occurs during the last six months of the two-year limitations period. 26 C.F.R. § 301.7433-1(d)(2).

The Internal Revenue Code also authorizes and limits certain other causes of action. Section 7422, governing suits for refund of taxes wrongfully collected, provides:

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

26 U.S.C. § 7422(a). A taxpayer may file a civil damages action for unauthorized inspection or disclosure of returns and return information where disclosure occurs outside of the context of the collection activities addressed in section 7433, subject to the limitations set forth in the Code. 26 U.S.C. § 7431(a)(1); Shwarz v. United States, 234 F.3d 428, 432-33 (9th Cir.2000). Section 7421, also known as the Anti-Injunction Act, provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person" except for actions under specific statutory provisions enumerated therein.¹ Id.

II. Factual Background

Plaintiffs allege that defendant United States, through the IRS and its employees, "engaged in and continue[s] to engage in alleged ongoing collection activities through the United States Mail by sending plaintiff(s) a multitude of letters demanding various sums of money for a multitude of years and threatening to seize plaintiffs assets if plaintiff(s) do/does not send the demanded money." Am. Compl. at 4-5. Plaintiffs further allege that the IRS has "unlawfully made public return information." Id. at 5. Plaintiffs then enumerate 41 "counts" of alleged IRS misconduct, reciting a litany of regulations and statutory provisions, but providing few facts underlying the violations alleged. Plaintiffs allege that the IRS:

— failed to notify plaintiffs of the imposition of a requirement to keep records, make statements, or file returns with respect to any federal tax in disregard of 26 U.S.C. § 6001 and 26 C.F.R. § 1.6001-1 (Counts 1, 2);

— failed to prepare, execute, and/or disclose a substitute return in plaintiffs' names in disregard of 26 U.S.C. §§ 6103 and 6020, 27 C.F.R. parts 53 and 70, and 26 C.F.R. § 301.6020-1 (Counts 3 through 9);

— unlawfully forced plaintiffs to use a social security account number that is assignable by the Commissioner of Social Security only to aliens and recipients of federal benefits in disregard of 26 U.S.C. § 6109 (Count 10);

— failed to limit tax assessments to taxes shown on a tax return and "unpaid taxes payable by stamp," and otherwise making improper tax assessments in disregard of 26 U.S.C. §§ 6201-02 and 27 C.F.R. part 70 (Counts 11 to 13);

— failed to record, execute, and provide plaintiffs with records of assessments in disregard of 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1 (Counts 14 to 17); — failed to promulgate regulations to implement the Code provision addressing tax deficiency, 26 U.S.C. § 6211 (Count 18);

— "exceed[ed] the limits imposed upon the Secretary's authority to collect ... taxes" based on the Secretary's alleged failure to develop and implement procedures governing the supervision and discipline of IRS employees involved in the levy or seizure of taxpayer properties, in disregard of 26 U.S.C. § 6301 (Count 19);

— failed to implement the provisions of 26 U.S.C. § 6301 (regarding the Secretary's authorization to collect taxes) by disregard of 27 C.F.R. parts 24, 25, 26, 270, 41, 53, and 70 (Counts 20 to 26); — failed to provide timely notice of unpaid taxes, including the amount owed and demand for payment in disregard of 26 U.S.C. § 6303 (Count 27);

— failed to implement the provisions of 26 U.S.C. § 6303 (regarding notice by the IRS and demand for taxes) in disregard of 27 C.F.R. parts 53 and 70 (Counts 28, 29);

— engaged in "conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any unpaid tax" by disregard of 26 U.S.C. § 6304 (regarding fair tax collection practices) (Count 30); — failed to comply with certain procedural requirements applicable to IRS notices of liens and penalties, including 26 U.S.C. §§ 6320, 6321, 6322, 6323, 6751, and 27 C.F.R. parts 70 and 301 (Count 31 to 38);

— made unauthorized disclosure of return information by filing notices of liens in amounts for which no record of assessment exists, in disregard of 26 U.S.C. § 7213 (Count 39); and

— made false claims resulting in the prosecution and incarceration of plaintiffs for tax crimes, by disregard of 26 U.S.C. § 7214 (regarding offenses by revenue officers and agents) (Counts 40 to 41).

Plaintiffs do not make reference to any specific tax years, identify the amount of taxes demanded by the IRS, or specify the liens or properties at issue. Nonetheless, drawing all inferences in plaintiffs' favor, the claims can fairly be summarized as alleging misconduct by the IRS...