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Turner-Simmons v. U.S.

United States District Court, N.D. Georgia, Atlanta Division
Mar 21, 2005
Civil Action No. 1:04-CV-3660-CAP (N.D. Ga. Mar. 21, 2005)

Opinion

Civil Action No. 1:04-CV-3660-CAP.

March 21, 2005


ORDER


This matter is before the court on the government's motion to dismiss [Doc. No. 5]. For the reasons set forth below, this motion is GRANTED.

Factual Background

The plaintiffs are individual taxpayers residing in DeKalb County, Georgia. They brought this suit claiming that the Internal Revenue Service ("SRS") failed to notify them that it was filing a notice of lien against them and failed to notify them of their right to a hearing before a levy was made against them in violation of 26 U.S.C. §§ 6320 and 6330.

The plaintiffs also contend that an IRS employee, Ms. Marion Tate, committed several unlawful acts on behalf of the IRS. First, they allege that Ms. Tate wrote to the plaintiffs and suggested that they provide a Form 433A Collection Information Statement. The plaintiffs claim that Ms. Tate's letter "intentionally mis[led] the [p]laintiffs by misrepresenting her reason for requiring a collection information statement from the [p]laintiffs." Compl. at 4 [Doc. No. 1]. The plaintiffs also claim that Ms. Tate became antagonistic on the phone with plaintiff Cynthia Turner-Simmons when Ms. Turner-Simmons failed to provide the IRS a collection information statement. The plaintiffs contend that Ms. Tate's behavior constitutes mail fraud in violation of 18 U.S.C. § 1341, unlawful tax collection practices in violation of 26 U.S.C. § 6304, and wire fraud in violation of 18 U.S.C. § 1343.

Mail fraud and wire fraud are federal crimes. They are enforceable as private actions only through a RICO claim. See Ayes v. Gen. Motors Corp., 234 F.3d 514, 519 n. 8 (11th Cir. 2000).

The plaintiffs claim that jurisdiction over this action is conferred upon the court pursuant to 26 U.S.C. § 7433 and request that the court find that the IRS liens and levies are unenforceable. The plaintiffs also ask the court to award them $500,000 for the government's "intent to defraud the [P]laintiffs by use of the United States Postal Service and wire communications, which are prohibited by [18 U.S.C.] § 1341 and [18 U.S.C.] § 1343 respectively." Pl.'s Resp. to Ref.'s Mot. to Dismiss at 7 [Doc. No. 6].

Legal Analysis

The United States government, as a sovereign, is immune from suit unless it consents to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (198x). Thus, the terms of the United States' consent to be sued dictate the court's jurisdiction to hear suits against the United States. Id.

Section 7433(a) is an example of a statute wherein the United States has given its consent to be sued by an individual for alleged violations of the Internal Revenue Code ("IRC") Pursuant to § 7433(a), a taxpayer may bring a civil damages action against the United States for the reckless or intentional disregard of any provision of the IRC by an officer or employee of the IRS. The statute, however, provides that damages are not available unless a plaintiff has first exhausted all of her administrative remedies within the IRS. 26 U.S.C. § 7433(d)(1). Numerous courts have interpreted this provision as jurisdictional, dismissing outright claims brought by a plaintiff who has not first exhausted her administrative remedies within the IRS. See, e.g., Sitz, Campbell, Duke Taylor v. United States, 197 B.R. 351, 356 (S.D. Ala. 1996); Comforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 1992); Brown v. Johnson, 889 F. Supp. 355, 358 (W.D. Ark. 1995); Trimble v. United States, No. 92-74219, 1993 WL 288295 at *2 (E.D. Mich. May 18, 1993).

The government has moved to dismiss the plaintiffs' complaint on the ground that the plaintiffs have failed to allege or otherwise demonstrate that they have exhausted their administrative remedies, a prerequisite to conferring jurisdiction upon this court. In response, the plaintiffs claim that "administrative remedies were either inadequate or not available." Pl.'s Resp. to Def.'s Mot. to Dismiss at 7 [Doc. No. 6].

The plaintiffs' claim that administrative remedies were not available to them or are inadequate is unfounded. Treasury Regulation § 301.7433-1(d) states that a plaintiff may not bring a civil action in federal district court prior to filing an administrative claim. Treasury Regulation § 301.7433-1(e) outlines the procedure for filing an administrative claim against the IRS. There is nothing in this regulation which indicates that it would not apply to a claim that the IRS violated 26 U.S.C. §§ 6320 or 6330. The plaintiffs, moreover, have not brought to the court's attention any facts or cases indicating that the IRS's administrative claims procedure, as outlined in Treasury Regulation § 301.7433-1, is inadequate. Thus, the court finds that there was an administrative remedy available to the plaintiffs and that the remedy was adequate.

Treasury Regulation § 301.7433-1(e)(1) states that an administrative claim shall be "sent in writing to the Area Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer currently resides." Treasury Regulation § 301.7433-1(e)(2) provides a complete list of the information that a taxpayer must include in the administrative claim.

The court's review of the plaintiffs' complaint indicates that the plaintiffs have not alleged that they have satisfied the exhaustion requirement of § 7433, nor does the complaint give rise to an inference that they have exhausted their administrative remedies. Because the plaintiffs have failed to allege that they have exhausted their administrative remedies within the IRS, the court lacks subject-matter jurisdiction over the plaintiffs' complaint.

Conclusion

For the foregoing reasons, the government's motion to dismiss [Doc. No. 5] is GRANTED. This action is hereby DISMISSED without prejudice and the clerk is directed to close the file.

SO ORDERED.


Summaries of

Turner-Simmons v. U.S.

United States District Court, N.D. Georgia, Atlanta Division
Mar 21, 2005
Civil Action No. 1:04-CV-3660-CAP (N.D. Ga. Mar. 21, 2005)
Case details for

Turner-Simmons v. U.S.

Case Details

Full title:RAYMOND TURNER-SIMMONS and CYNTHIA TURNER-SIMMONS, Plaintiffs, v. UNITED…

Court:United States District Court, N.D. Georgia, Atlanta Division

Date published: Mar 21, 2005

Citations

Civil Action No. 1:04-CV-3660-CAP (N.D. Ga. Mar. 21, 2005)