Opinion
Case No. 2:05-cv-586.
March 22, 2006
ORDER
Plaintiff brings this action against the United States for monetary damages and injunctive relief, asserting that the Commissioner of the Internal Revenue Service fraudulently filed a tax lien against his property. Defendant moves to dismiss. For the reasons that follow, the Court grants defendant's motion to dismiss.
I. Background
Plaintiff initially filed this action in the Franklin County, Ohio Common Pleas Court. Defendant removed the action to this Court. Plaintiff moved to remand. The Court denied plaintiff's remand motion.
The complaint alleges the following:
Theory of the case
Mark Everson [, the Commissioner of the Internal Revenue Service,] operates a large scale enterprise which primarily consists of extorting money and property from persons innocent of any wrongful act. Everson, through agents employed by Everson's enterprise, literally drive around the country looking for convenient targets of Emerson's scam operation. Everson, by and through one or more of Everson's scam artists targeted Roger C. Johnson solely because Everson's agents were able to determine that Roger C. Johnson had property sufficient to further enrich Everson and Everson's literal partners in crime. When Roger C. Johnson refused to accede to the protection racket-like demands of Everson, Everson slandered the title to Roger C. Johnson's property by preparing or causing to be prepared "notices of lien" which are nothing less that [sic] heinous frauds promulgated by Everson in furtherance of Everson's master scheme of fraud and extortion.
Causes of action
The instrument number 200411220266748 of the Franklin County courthouse, county clerk's recorder (Exhibit A) Mark Everson falsely and fraudulently claims that Roger C. Johnson owes Everson's enterprise $27,277.55. (Exhibit B) This court shall notice that Roger C. Johnson has stated a claim for slander of title by stating that the property interests in question either are or were titled to Roger C. Johnson; Everson caused publication in the public record; the publication by Everson into the public record is false as Everson cannot validate that Roger C. Johnson owes sums to Everson's enterprise based on actual admissible evidence; Everson's false publication worked maliciously in as much as the property interests of Roger C. Johnson are interfered with in a mean-spirited way, i.e., Everson's sole purpose in slander of title is extortion clearly evident in the publication; and special damages have resulted from Everson's false publication, to wit: every banker around has refused to allow the property interests of Roger C. Johnson as collateral due to the notice of the false publication of Mark Everson.
Complaint at 2. Plaintiff demands an order expunging the subject notice, as well as an award of monetary damages of not more than $4,500.00.
II. Discussion
Defendant asserts that plaintiff's claim for monetary damages is subject to dismissal because plaintiff did not first exhaust his administrative remedies, and because the damages claim is, in an event, barred under the tax collection exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(c). Defendant argues that plaintiff's claim for injunctive is also subject to dismissal for failure to exhaust administrative remedies, and because it is nevertheless barred under the tax Anti-Injunction Act, 26 U.S.C. § 7421(a). Plaintiff does not cogently respond to these arguments, other than to characterize defendant's motion as "arrogated nonsense," and contending that this matter must be decided by a jury upon the basis of "competent fact witnessing and authenticated evidence."
A. Damages claim
The FTCA states in part as follows:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.28 U.S.C. § 2675. Here, plaintiff has not alleged that he presented his damages claim to the IRS before filing the instant lawsuit. Plaintiff's damages claim is therefore subject to dismissal.
The FTCA excepts "[a]ny claim arising in respect to the assessment or collection of any tax. . . ." 28 U.S.C. § 2680(c). The Court finds that plaintiff's claim for monetary damages arises from the assessment or collection of taxes. Plaintiff's damages claim is therefore barred under the doctrine of sovereign immunity. See Fishburn v. Brown, 125 F.3d 979, 982 (6th Cir. 1997).
For the above reasons, defendant is entitled to dismissal of plaintiff's claim for monetary damages.
B. Injunctive relief
Plaintiff also seeks injunctive relief in the form of an order expunging the tax lien notice.
The Tax Code provides in part as follows:
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), and 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.26 U.S.C. § 7421(a). Plaintiff has not argued that any of the listed statutory exceptions to this provision apply, and they in fact do not appear to apply to this case. Under § 7421(a), plaintiff cannot maintain his claim for injunctive relief.
For the above reasons, defendant is entitled to dismissal of plaintiff's claim for injunctive relief.
III. Disposition
Based on the above, the Court GRANTS defendant's motion to dismiss (Doc. 8 and Doc. 9).
The Clerk shall enter a final judgment in this case, in favor of defendant, and against plaintiff, dismissing this action with prejudice.
The Clerk shall remove Doc. 8 and Doc. 9 from the Court's pending CJRA motions list. The Clerk shall remove this case from te Court's pending cases list.
IT IS SO ORDERED.