Rotte v. U.S.

• Decision Date: 25 February 2009
• Docket Number: Case No. 07-14029-CIV.
• Parties: Harold B. ROTTE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

615 F.Supp.2d 1347

Harold B. ROTTE, Plaintiff, v. UNITED STATES of America, Defendant.

Case No. 07-14029-CIV.

United States District Court, S.D. Florida, Ft. Pierce Division.

February 25, 2009.

Harold B. Rotte, Vero Beach, FL, pro se.

Rachael Amy Kamons, Patrick J. Hannon, United States Department of Justice, Washington, DC, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JOSE E. MARTINEZ, District Judge.

THIS CAUSE came before the Court upon Plaintiffs Motion for Partial Summary Judgment on Counts II and III with respect to Tax Year 2004 (D.E. No. 45) and the United States's Motion for Partial Summary Judgment (D.E. No. 76). Plaintiff Harold B. Rotte ("Plaintiff") has filed suit against Defendant United States of America ("Defendant"), alleging claims based upon his 1988, 1989, 1991, and 2004 taxes. After careful consideration, the Court denies Plaintiffs motion for partial summary judgment and grants in part and denies in part Defendant's motion for partial summary judgment.

I. Relevant Factual and Procedural Background

Plaintiff, who is proceeding pro se in this action, filed suit against the Internal Revenue Service ("IRS") on January 31, 2007, raising a number of claims relating to different tax bills and tax liens. Plaintiff amended his complaint several times, see (D.E. Nos. 11, 17), and eventually, Defendant moved to dismiss Plaintiff's claims. The Court granted this motion, dismissing with prejudice Plaintiff's claims arising under the Declaratory Judgment Act, 28 U.S.C. § 2201(a). See (D.E. No. 26). The dismissal was with prejudice to Plaintiffs claims against the IRS. Id. Plaintiff was directed to substitute the Defendant United States as the proper party in any Second Amended Complaint filed with the Court. Id. The dismissal was without prejudice to Plaintiffs claims regarding the present collection of a tax debt. Id. It was also without prejudice to Plaintiffs claims for refunds under 26 U.S.C. § 6511, his claims for civil damages for unlawful collection activity under 26 U.S.C. § 7433, and his claims for judicial review of an adverse Tax Court decision. Id. On June 4, 2008, Plaintiff filed his three-count Second Amended Complaint (D.E. No. 27), which reasserts some of the claims from Plaintiffs previous complaint and is the operative complaint in this action. Both parties have now moved for partial summary judgment.

II. Legal Standard

A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). By its very terms, this standard provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita Electric Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. It is "material" if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In addition, in considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505.

If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See United States v. Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1438 (11th Cir.1991). The moving party "`must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial.'" Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). "If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, `come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.'" Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d at 1438 (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991)). See also Fed.R.Civ.P. 56(e).

In contrast, if the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim or affirmative defense. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. When the non-moving party bears the burden of proof, the moving party does not have to "support its motion with affidavits or other similar material negating the opponent's claim." Id. at 323, 106 S.Ct. 2548 (emphasis in original). The moving party may discharge its burden in this situation by showing the Court that "there is an absence of evidence to support the nonmoving party's case." Id. at 324, 106 S.Ct. 2548. Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must "go beyond the pleadings and by [its] own affidavits or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed. R.Civ.P. 56(e)). A non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

III. Analysis

The Court now considers both parties' motions for partial summary judgment.¹ Plaintiff has moved for partial summary judgment on the portions of Counts II and III which relate to tax year 2004. Defendant has moved for partial summary judgment on all claims in Count I, on the portions of Count II relating to Plaintiff's allegations that levies issued for tax years 1988, 1989 and 1991 were issued after the statute of limitations for collection expired, the portions of Count II relating to tax year 2004, and all claims in Count III. The Court discusses each count in turn.

A. Count I

In Count I, Plaintiff alleges that Defendant violated 26 U.S.C. § 7432. Section 7432 provides:

If any officer or employee of the Internal Revenue Service knowingly, or by reason of negligence, fails to release a lien under section 6325 on property of the taxpayer, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.

Plaintiff alleges that Defendant violated section 7432 by failing "to issue a Certificate of Release of Federal Tax Lien (Form 668Z) with respect to the 1988, 1989 and 1999 taxes after expiration of the Statute of Limitation on collections." (D.E. No. 27 at 21). Defendant moves for summary judgment, arguing that it complied with section 7432 because the notice of federal tax lien was self-releasing. After careful consideration, this Court agrees and finds that there are no genuine issues of material fact as to Count I.

In this case, the notice of federal tax lien filed in Duval County, Florida, which lists the assessments made relating to Plaintiff's 1988, 1989 and 1991 tax liabilities contains a section entitled "Important Release Information." (D.E. No. 74-4 at 1). This section provides that "[f]or each assessment listed below, unless notice of lien is refiled by the date given in column(e), this notice shall, on the day following such date, operate as a certificate of release as defined in IRC 6325(a).²" Id. Thus, as Defendant argues, the notice of federal tax lien acted as a certificate of release and automatically released the tax liens for Plaintiffs 1988, 1989 and 1991 tax liabilities when no notice of lien was refiled by the dates listed in column (e).³ There is no evidence in the record that these federal tax liens were ever refiled. Thus, the Court grants Defendant's motion for summary judgment as to Count I.

B. Count II

In Count II, Plaintiff alleges violations of 26 U.S.C. § 7433, which provides for civil damages for certain unauthorized collection actions. Section 7433 specifically provides that:

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.

Plaintiff alleges Defendant violated section 7433 by disregarding a number of provisions of title 26.

1. Claims Relating to Plaintiff's 1988, 1989, and 1991 taxes

First, Plaintiff argues that Defendant improperly levied his social security benefits with respect to his 1988, 1989, and 1991 taxes because these benefits were levied after the expiration of the statute of limitations set forth in 26 U.S.C. § 6502. He also alleges that his 1988, 1989, and 1991 taxes were improperly levied in excess of the sums specified in 26 U.S.C. § 6334. Finally, in Count II, Plaintiff alleges that Defendant violated 26 U.S.C. § 121 by taxing him on the sale of his personal residence in 2004 when such sale was exempt and that Defendant improperly attempted to collect...