US v. Barretto

• Decision Date: 15 March 1989
• Docket Number: 88 Civ. 2711 (PKL).,No. 88 Civ. 1603 (PKL),88 Civ. 1603 (PKL)
• Citation: 708 F. Supp. 577
• Parties: UNITED STATES of America, Plaintiff, v. Lou BARRETTO, Defendant. Lou BARRETTO, Plaintiff, v. INTERNAL REVENUE SERVICE, Allan N. Taffet, Ron Lewis, and Tom McCauley, Defendants.
• Court: U.S. District Court — Southern District of New York

708 F. Supp. 577

UNITED STATES of America, Plaintiff, v. Lou BARRETTO, Defendant.

Lou BARRETTO, Plaintiff, v. INTERNAL REVENUE SERVICE, Allan N. Taffet, Ron Lewis, and Tom McCauley, Defendants.

Nos. 88 Civ. 1603 (PKL), 88 Civ. 2711 (PKL).

United States District Court, S.D. New York.

March 15, 1989.

Lou Barretto, pro se.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Allan N. Taffet, of counsel), for U.S.

ORDER AND OPINION

LEISURE, District Judge:

FACTUAL BACKGROUND

On or about April 26, 1982, the Internal Revenue Service (the "IRS"), pursuant to 26 U.S.C. § 6201(a), made an assessment in the amount of $20,655.71 against Lou Barretto ("Barretto") for the taxable year ending December 31, 1976. That assessment represented federal income taxes owed by Barretto, plus interest and statutory additions. The United States of America (the "Government") alleges that despite notice and due demand, Barretto has neglected or refused to pay the full amount of the assessed liability. Therefore, on or about November 22, 1987, the IRS imposed a levy on the wages of Barretto to collect the outstanding monies due and owing the government.

Barretto acknowledges receiving a notice of deficiency in 1977, while in federal prison in Miami, Florida. Barretto Complaint ¶ 5.¹ That notice stated that Barretto owed federal income taxes in the amount of $13,325.00 for the taxable year 1976. On or about August 31, 1978, Barretto allegedly filed a petition in United States Tax Court challenging the IRS notice of deficiency. See Affidavit of Ronald Lewis, Esq., sworn to on May 10, 1988 ("Lewis Aff."); United States Tax Court Order of Dismissal and Decision dated January 6, 1982, in Barretto v. Commissioner of Internal Revenue Service, attached as Exhibit B to Defendants' Notice of Motion. On or about April 26, 1982, the IRS formally assessed the amount of taxes due and owing plaintiff. Thereafter, notices of a federal tax lien were recorded in Wayne County, Michigan and in New York County, New York.

On March 11, 1988, the Government, by its counsel, Allan N. Taffet ("Taffet"), an Assistant United States Attorney, commenced an action in the United States District Court for the Southern District of New York, identified in the above caption as No. 88 Civ. 1603. The action was brought on behalf of the IRS and sought to reduce the outstanding assessment to judgment. In an early pretrial conference, Taffet and Ronald Lewis ("Lewis"), as counsel for the IRS, explained to this Court the bases for the Government's contention that Barretto owed substantial taxes to the federal government. Barretto claims that the statements made by counsel for the Government at this hearing were inaccurate. Barretto Complaint ¶ 1. Instead of filing a counterclaim, Barretto thereafter instituted a separate action against the IRS, Taffet, Lewis and Tom McCauley ("McCauley"), identified above as 88 Civ. 2711. The latter action sought to enjoin the tax levy, recover previously assessed taxes for the year 1976, and asserted a claim for intentional infliction of emotional distress against defendants Taffet, Lewis, and McCauley in the amount of $50,000.

The Government, as plaintiff in the former action, has moved, pursuant to Fed.R. Civ.P. 56(c), for summary judgment to reduce the federal tax assessment made against Barretto to judgment. In the latter action, the individual defendants and the IRS have moved to dismiss the Barretto Complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The above captioned cases are presently before the Court on these motions.

MOTION FOR SUMMARY JUDGMENT

Once a taxpayer has been assessed, the Government may proceed to reduce that assessment to judgment. See, e.g., United States v. Rodgers, 461 U.S. 677, 682, 103 S.Ct. 2132, 2137, 76 L.Ed.2d 236 (1983); United States v. First National City Bank, 568 F.2d 853 (2d Cir.1977). Moreover, it is well established that the IRS' determination of a tax deficiency is presumed to be correct, and the burden of overcoming this presumption is on the taxpayer. See United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882); DeLorenzo v. United States, 555 F.2d 27, 29 (2d Cir.1977); Lesser v. United States, 368 F.2d 306, 310 (2d Cir.1966) (en banc). Where the Government places the assessment in evidence and the taxpayer fails to raise a material issue of fact, the Government is entitled to summary disposition. See United States v. Pierce, 609 F.2d 407 (9th Cir.1979); United States v. Mauro, 243 F.Supp. 413 (S.D.N.Y.1965). Thus, summary judgment may be granted even though none of the facts underlying the assessment of a federal tax is specifically presented to the Court.² See, e.g., Mauro, supra at 415.

In the present case, the IRS made an assessment against Barretto for the taxable year ending December 31, 1976 representing federal income taxes owed plus interest and statutory additions. Barretto has raised no material issue of fact concerning the propriety of this assessment. Rather, Barretto disputes the Government's assertion that he filed a petition in the tax court. Barretto alleges that he "did not filed sic or request to file any petition in the United States Tax Court challenging the Internal Revenue Services notice of deficiency...." Barretto Memorandum of Law at 2. Barretto asks this Court to dismiss the Government's claim that the tax assessment be reduced to judgment for "lack of evidence." Plaintiff appears to be contesting the jurisdiction of the tax court over him. See United States v. Jenkins, 780 F.2d 518 (5th Cir.1986). However, even if the tax court did not have jurisdiction over Barretto, this simply means that the tax court's decision is not given res judicata effect in this Court and Barretto may challenge the merits of the tax assessment against him.

Nevertheless, Barretto has failed to articulate any inaccuracy in the tax assessment. Therefore, as a matter of law, the Government is entitled to summary judgment reducing the federal tax assessment, made on April 26, 1982, to judgment.

MOTION TO DISMISS

As stated previously, Barretto instituted a separate action against Taffet, Lewis, McCauley and the IRS. Defendants move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the Barretto Complaint for failure to state a claim.³ Plaintiff Barretto is proceeding pro se in this action in which he primarily seeks injunctive relief that bars the IRS from continuing the levy imposed on his wages and the return of taxes previously collected. Barretto also seeks damages from the individual defendants: an Assistant United States Attorney, an IRS attorney, and an IRS Revenue Officer, for their roles in filing a lawsuit to reduce the tax assessment to judgment. Barretto claims that these defendants' actions have violated his rights under the eighth amendment to the U.S. Constitution and have intentionally inflicted emotional distress upon him and his family.

A. The Eighth Amendment Claim

Barretto contends that the garnishment of his salary to satisfy an outstanding tax liability, and the suit to reduce the tax assessment to judgment by the individual defendants constitutes cruel and unusual punishment and thereby violates the eighth amendment of the United States Constitution.

The eighth amendment prohibits punishment that violates contemporary standards of decency and is "barbarous" or "shocking to the conscience" of a reasonable person. Sostre v. McGinnis, 442 F.2d 178, 191-92 (2d Cir.1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). See also Rhodes v. Chapman, 452 U.S. 337, 345-50, 101 S.Ct. 2392, 2398-01, 69 L.Ed.2d 59 (1981). Barretto repeatedly refers to the extreme hardship that he and his family are undergoing as a result of the levy, arguing that this constitutes cruel and unusual punishment under the eighth amendment.

In the present case, the imposition of the levy and the action to reduce the tax assessment to judgment were taken pursuant to a well-established statutory scheme. The Internal Revenue Code dictates that before the IRS can assess a tax owed, a "notice of deficiency" must be sent to the taxpayer. 26 U.S.C. § 6212. This procedure affords a taxpayer wishing to challenge the deficiency an opportunity to petition the United States Tax Court for review. Here, Barretto acknowledges receipt of the notice of deficiency. Barretto Complaint ¶ 5. Barretto contends that he never challenged this notice of deficiency in the tax court.

The IRS assessed the tax liability pursuant to its statutory authority. See 26 U.S. C. § 6201. Once such an assessment is entered, the IRS is authorized to collect the tax "by levy upon all property and rights to property belonging to such person." 26 U.S.C. § 6331. Section 6331 has been found constitutional, United States v. Heck, 499 F.2d 778, 792-93 (9th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974), and the propriety of such levies have been upheld. See Sims v. United States, 359 U.S. 108, 110-11, 79 S.Ct. 641, 644, 3 L.Ed.2d 667 (1959).

In the case at bar, the assessment was entered on or about April 26, 1982. A federal tax lien then arose by operation of section 6321 of Title 26 of the United States Code. A notice of levy based on the lien was issued by the IRS. The Government then brought suit to reduce the assessment to judgment. See 26 U.S.C. § 7403.

Thus each of the individual defendants' actions were taken pursuant to specific provisions of the statutory scheme enacted by Congressional fiat. Barretto has not indicated how any of these statutorily sanctioned actions can possibly violate his eighth amendment rights. It is clear that none of these actions would "shock the conscience" of a reasonable person and therefore Barretto's claim under the eighth amendment must be dismissed.

B. Intentional Infliction of Emotional Distress

Barretto also asserts a cause of action for the intentional infliction of emotional distress.⁴ It is well-established that "one who by extreme...