Opinion
Civil Action No. 03-1132-JTM
August 6, 2003
MEMORANDUM AND ORDER
This matter comes before the court on defendants' motion to dismiss (Dkt. No. 3). In this case, the plaintiff brings suit against the defendants to reduce to judgment unpaid federal tax assessments, set aside conveyances of real property, obtain a determination that the Plainsman Property Trust is the nominee of Donald W. and Phyllis C. Dawes, and foreclose federal tax liens on real property. The motion to dismiss is fully briefed and ripe for determination. For the reasons stated below, the court denies the motion to dismiss.
The defendants make several arguments that the plaintiff lacks standing to sue. The defendants' first standing argument addresses such points as whether the "`United States of America' is a distinct, separate geographical and political entity foreign to the `United States,'" and whether the Internal Revenue Service is an agency of the United States. Next, the defendant argues that the government lacks standing because a valid lien did not exist at the time of the suit. Defendants also contend that the plaintiff must bring this action under the Debt Collection Act, 28 U.S.C. § 3001.
Upon examination, the court finds that each of these arguments fail. The plaintiff possesses standing to sue under 28 U.S.C. § 1345 in this context the "United States of America" is synonymous with the "United States." "The Internal Revenue Service is a governmental agency and an agency of the United States." Salman v. Dep't of Treasury-Internal Revenue Serv., 899 F. Supp. 471, 472 (D. Nev. 1995). The complaint details the assessments giving rise to the lien, the filing of the liens, and property to which the liens attach. Construing the allegations of the complaint in the light most favorable to the non-moving party, the plaintiff has adequately stated a claim. The plaintiff may bring this suit under the Internal Revenue Code, 26 U.S.C. as it provides the ability to recover a tax debt.
Next, the defendants argue that double jeopardy and the statute of limitations bar plaintiff's claim. The court finds that these arguments also fail. The defendants argue that the plaintiff is barred from collecting civil tax liabilities from the defendants, because they were convicted for willful failure to file their tax returns. "The Double Jeopardy Clause does not bar la [sic] civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based." Roberts v. C.I.R., T.C. Memo. 1997-216, 1997 WL 230837 (citations omitted). Furthermore, the plaintiffs made the tax assessments in question within three year period set out in 26 U.S.C. § 6501(a). The defendants also requested and received a Collection Due Process hearing. Thus, the case is not time-barred.
In addition to the aforementioned, the defendants make several arguments that do not merit much discussion. Namely, the defendants argue that this court lacks a judge and that the action should be brought in a "district court of the United States" rather than the "United States District Court." These arguments are patently frivolous and fail. Accordingly, the defendants' motion to dismiss is denied.
IT IS, THEREFORE, BY THE COURT, ORDERED this 6th day of August, 2003, that defendants' motion to dismiss (Dkt. No. 3) is denied.