Vidurek v. Koskinen

Decision Date25 July 2018
Docket Number17 CV 9064 (VB)
CourtU.S. District Court — Southern District of New York

Briccetti, J.:

Plaintiffs John Vidurek and Kimberly Vidurek, proceeding pro se, bring this action against defendants the Internal Revenue Service ("IRS"), former IRS commissioner John Koskinen,1 current IRS employees Brenda Dial, John/Jane Doe,2 Jonnie Melendez, Maryellen Benecke, Linda Piatek,3 and Jeanette Willet (collectively, the "Federal Defendants"); Daniel Schulman, president and CEO of PayPal Holdings Inc.;4 Guy Chiarello, president of First DataMerchant Services LLC;5 Mary Madden, president and CEO of Hudson Valley Federal Credit Union ("HVFCU"); Michael Quinn, president and CEO of Rhinebeck Savings Bank ("RSB"); and Jack Dorsey, president and CEO of Square Inc.,6 for claims arising out of assessments of and attempts to collect federal income taxes from plaintiffs.

Plaintiffs assert claims for violations of various federal criminal statutes, specifically, conspiracy against civil rights (18 U.S.C. § 241), deprivation of civil rights under color of law (id. § 242), mail fraud (id. § 1341), making false statements (id. § 1001), and the Racketeer Influenced and Corrupt Organizations Act ("RICO") (id. § 1961, et seq.). Plaintiffs also assert state law claims for "trespass on the case," fraud, negligence, vindictive recklessness, abuse of process, and harassment. (Compl. at 2).7

In addition, plaintiffs bring constitutional claims for due process violations and unreasonable seizure pursuant to 42 U.S.C. § 1983, and for conspiracy to violate civil rights under 42 U.S.C. §§ 1985 and 1986. Plaintiffs also appear to seek civil damages for unauthorized tax collection.

Now pending are four motions: (i) Michael Quinn's motion to dismiss the complaint under Rule 12(b)(6) and for an order enjoining plaintiffs from filing future complaints against him and his employer (Doc. #5); (ii) GuyChiarello's motion to dismiss the complaint under Rules 12(b)(5) and 12(b)(6) (Doc. #8); (iii) Mary Madden's motion to dismiss the complaintunder Rule 12(b)(5) and motion for judgment on the pleadings under Rule 12(c) (Doc. #21); and (iv) Federal Defendants' motion to dismiss the complaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6). (Doc. #35).

For the following reasons, the motions of Quinn, Chiarello, and the Federal Defendants to dismiss the complaint, as well as Madden's motion for judgment on the pleadings, are GRANTED. Quinn's motion for a filing injunction is also GRANTED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


The following factual background is drawn from the complaint and the documents attached as exhibits thereto, which the Court may consider in deciding the pending motions. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). For the purpose of deciding the pending motions, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in plaintiffs' favor, as summarized below.

I. Plaintiffs' Tax History

Plaintiffs assert they are not subject to federal tax assessment or collection by the IRS. Plaintiffs allege "the IRS is a foreign corporate trust created in [the] Philippines" and/or Puerto Rico, and the Internal Revenue Code "is not law," but "only defines a contract between the IRS and an individual," and "applies only to the Philippines, Puerto Rico, District of Columbia, Virgin Islands, Guam, Northern Mariana Islands, territories, and insular possessions, for such items as narcotics, alcohol, tobacco, and firearms." (Compl. at 34-35).

On March 26, 2012, the IRS sent Vidurek8 a "Proposed Individual Income Tax Assessment," which stated the IRS had no record of having received an individual tax return from Vidurek for the 2009 tax year and calculated Vidurek owed $119,012.13. (Compl. Ex. 1). On July 2, 2012, the IRS sent Vidurek a "Notice of Deficiency" in the amount of $81,413.00 for the 2009 tax year. (Compl. Ex. 2).

On July 13, 2012, Vidurek sent the IRS a "Notice and Demand," in which he contested the Notice of Deficiency, demanded the IRS correct its files as to Vidurek, and listed various potential causes of action against the IRS. (Compl. Ex. 3).

By letter dated August 15, 2012, the IRS informed Vidurek it was reviewing his correspondence and would contact him within forty-five days with a reply. Plaintiff received no response.

Vidurek then received an IRS notice dated December 17, 2012, stating he owed $124,762.43 for the 2009 tax year, which he was required to pay by January 2, 2013, to avoid additional penalty and interest charges. In response, on January 11, 2013, Vidurek sent a "Second Notice and Demand" to the IRS, asserting he was not liable for the assessed taxes because the Internal Revenue Code "is not the law" and there is no contract between the IRS and Vidurek, again demanding the IRS correct their files, and again threatening legal action. (Compl. Ex. 6).

Also on January 11, 2013, Vidurek sent a Freedom of Information Act request to the IRS for his individual master files for tax years 2009 through 2012, as well as other documents. On February 5, 2013, Vidurek received a full response to his request. The IRS provided theindividual master files, but, plaintiffs allege, not the necessary program or information to decode them.

The IRS sent Vidurek another notice, dated January 21, 2013, stating the amount Vidurek owed for 2009 had increased to $125,528.52. Thereafter, Vidurek sent the IRS a letter and affidavit dated January 25, 2013, stating he never received the $236,911.00 in reported taxable income that was the basis of the Proposed Assessment.

The IRS then sent Vidurek a "Notice of intent to levy" dated April 8, 2013, which indicated that if Vidurek did not call the IRS or pay $127,136.99 by April 18, 2013, the IRS might levy any state tax refund to which Vidurek was entitled and take possession of other property, the proceeds of which would be applied to the amount the IRS stated Vidurek owed. (Compl. Ex. 11). In response, Vidurek sent a "Fo[u]rth Notice to Correct Records," dated April 10, 2013. (Compl. Ex. 12).

The IRS sent Vidurek a "Final Notice" of "Intent to Levy and Notice of Your Right to a Hearing," dated April 15, 2013. (Compl. Ex. 13). On April 22, 2013, Vidurek responded to the IRS by letter, again asserting the IRS had no authority to tax him. On April 29, 2013, the IRS sent Vidurek notice that the IRS would be in contact with third parties in an attempt to collect the unpaid taxes. Vidurek responded to the IRS, objecting to any attempt to collect taxes from him.

On May 7, 2013, the IRS sent Vidurek a "Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320," which indicated a federal tax lien had been filed with the Dutchess County Clerk in the amount of $124,762.43. (Compl. Ex. 20).

On May 15, 2013, the IRS issued a summons to RSB and HVFCU. The summonses required RSB and HVFCU to "[p]rovide copies of all opening account records and bank statements in which John E. Vidurek . . . is listed as a signatory from January 1, 2007 throughDecember 31, 2008 and January 1, 2010 through December 31, 2012." (Compl. Ex. 21). On May 25, 2013, plaintiffs sent a notice and demand to both RSB and HVFCU, registering plaintiffs' objection and affirmatively withholding plaintiffs' consent for the banks to provide information to the IRS.

On August 7, 2013, the IRS sent Vidurek a determination letter, which stated plaintiffs were not required to file a tax return for the 2009 tax period. On September 2, 2013, the IRS sent plaintiffs a notice that, after eliminating or decreasing most taxes, penalties, interest, and fees previously levied, Vidurek owed $80.64 for the 2009 tax year. In addition, the IRS provided a "Certificate of Release of Lien" dated September 18, 2013, for the amount of $124,762.43. (Compl. Ex. 26).

Approximately one year later, on August 25, 2014, the IRS sent Vidurek an Income Tax Examination Changes form for changes to Vidurek's taxes owed for 2008 and signed by "Tax Examiner - MS 4388."9 (Compl. Ex. 28). On October 27, 2014, the IRS sent plaintiff another deficiency notice claiming $1,507 for 2008, signed by both the IRS Commissioner and defendant Brenda Dial, an IRS service agent.

On November 8, 2014, Vidurek sent defendants Layne Carver, Brenda Dial, and IRS Commissioner John Koskinen a notice and demand. Vidurek's notice asserted the attempt to collect taxes and penalties for 2008 was time-barred, and he would not contest the tax determination in a court because "under the Constitution Article III Section 2[,] Article III courts lack jurisdiction to hear tax cases . . . [and] tax court[s] . . . can provide no remedy for People." (Compl. Ex. 30). Vidurek also contested the $80.64 deficiency for the 2009 tax year. In response, on November 14, 2015, defendant Jonnie Melendez, an intake advocate at theTaxpayer Advocate Service of the IRS, wrote to Vidurek and declined to address each argument raised in the November 8, 2014, letter because they "appear[ed] to be frivolous and have no basis in law." (Compl. Ex. 31).

Several months later, on July 11, 2016, the IRS sent a letter of intent to seize Vidurek's assets as payment for $2,745.05 owed for 2008. The letter warned that the IRS might seize Vidurek's property on or after August 10, 2016, if it did not receive payment. The letter informed Vidurek he could appeal by requesting a Collection Due Process hearing. From November 23, 2016, to August 23, 2017, the IRS intercepted a portion of Vidurek's monthly social security payments and applied them toward Vidurek's taxes owed for 2008. (See Compl. Exs. 33, 36, 37, 42).

On June 13, 2017, defendant ...

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