Opinion
No. CV-N-04-0284-DWH (RAM).
September 28, 2004
ORDER
Before the court is Defendants' Motion to Dismiss (#9), to which Plaintiff did not file a response. For the reasons set out below, the Defendants' Motion to Dismiss is GRANTED.
I. Background
On June 1, 2004, Plaintiff Verl Keith filed his Complaint which was titled "Counterclaim — in admiralty — Re: God-given unalienable rights in the original estate — Article III, Organic Constitution." In his complaint, Plaintiff expounds for several pages in a rambling and incoherent manner asserting unintelligible facts and accusations. Attached to the complaint are numerous documents concerning income taxes assessed on the Plaintiff by the Internal Revenue Service (IRS). These documents include letters from IRS agents Jan Gilbert and Dennis Parizek regarding the non-payment of taxes by the Plaintiff. Across the top of these letters is written "Refused for Cause" and the letters are signed by the Plaintiff.Plaintiff fails to identify any specific cause of action upon which his complaint is based. The complaint does, however, seek "injunctive relief from any future presentments and theft or kidnap or seizure actions from any foreign agents and principals," (Emphasis in original). Based upon the documents and statements in the complaint, it appears that plaintiff is attempting to prevent the IRS from assessing and collecting certain outstanding tax liabilities.
The complaint names three IRS employees as defendants. Mark Everson is the Commissioner of the Internal Revenue Service of the United States. Dennis L. Parizek is Operations Manager, Examination for the IRS's Ogden Service Center. Jan Gilbert is an IRS agent in Reno, Nevada. Defendant Parizek's name appears on two letters sent to the Plaintiff discussing the status of Plaintiff's 1999 and 2002 tax liabilities. ( See Compl. (#1) at Exs. 3-4) On May 21, 2004, Defendant Gilbert sent Plaintiff a letter advising him that the IRS is considering pursuing penalties and an injunction against him in connection with his preparation of tax returns and other documents. ( See id. at Ex. 2).
The United States, on behalf of Defendants, has filed this motion for dismissal based upon insufficiency of service of process under Fed.R.Civ.P. 12(b)(5) and for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
II. Discussion
Plaintiff brings this action against IRS employees for actions taken in their official capacities and seeks relief solely from the United States. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). Thus, to the extent that any of the claims can be construed to be against the Defendants in their individual capacities, they are dismissed. See Smith v. Rossotte, 250 F. Supp. 2d 1266, 1268 (D.Or. 2003). Further, suits against IRS employees for actions taken in their official capacities, are in fact suits against the United States. See id. Therefore, the United States is the proper party defendant in the present lawsuit.
Defendants assert that this lawsuit should be dismissed for failure to properly serve the United States under Fed.R.Civ.P. 4(I). Neither the United States Attorney's Office for the District of Nevada, nor the Attorney General of the United States have been served with a copy of the summons and complaint in this action. Fed.R.Civ.P. 4(i)(1)(B). Because this court can find no good cause for Plaintiff's failure to properly serve the United States, this action is dismissed. See McNeil v. United States, 508 U.S. 106, 112 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Moreover, this case is correctly dismissed based on a lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). To the extent that Plaintiff's complaint can actually be interpreted in its present form, it seeks to enjoin the IRS from assessing and collecting tax liabilities. ( See Compl.(#1) at 4-5). The Anti-Injunction Act, 26 U.S.C. § 7421(a), bars all suits "for the purpose of restraining the assessment of any tax. See Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 770 (9th Cir. 1986) (citation omitted). While the proscription against enjoining the IRS's assessment and collection efforts is subject to limited statutory exceptions, see 26 U.S.C. § 7421(a), none of the exceptions apply in this case. Additionally, the Plaintiff has failed to show that (1) under no circumstances could the Government ultimately prevail on the merits and (2) that equity jurisdiction otherwise exists, i.e. that the taxpayer is threatened with irreparable harm and that there is no adequate legal remedy available. See Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 6-8 (1962) (enunciating a narrow judicial exception to 26 U.S.C. § 7421(a)). Therefore, this court lacks subject matter jurisdiction over this action.
Plaintiff's complaint consists of tax protester arguments that have been soundly rejected by the federal courts, time and time again. See, e.g., Lonsdale v. United States, 919 F.2d 1440 (10th Cir. 1990). Moreover, similar nonsensical complaints have been filed by at least five Plaintiffs and has been dismissed each time. See Monroe v. Schneider, 2004 WL 2110697, *1 (D.Or. 2004); Leroy v. Matthews, 2004 WL 848189, *1 (D.Or. 2004); Gookhee v. Caisse, 2004 WL 1196666, *1 (D.Or. 2004); Evans v. Firth, 2004 WL 1379458, *1 (D.Or. 2004); Ray v. Lowder, 2003 WL 695924, *1 (M.D.Fla. 2003).
III. Conclusion
Accordingly, IT IS ORDERED that Defendants' motion (#9) to dismiss is GRANTED with prejudice. The Clerk will enter judgment accordingly.