Opinion
Case No. 3:03cv278/RV/MD
December 11, 2003
ORDER
Pending is the defendants' motion to dismiss the plaintiff's claims, which are styled as a petition for a writ of mandamus. (Doc. 8)
Plaintiff, Deborah A. Bonner, proceeding pro se, brought this action against the defendants, Jeffrey D. Eppler and Gregory A. Collier, both agents of the Internal Revenue Service ("IRS"), seeking a writ of mandamus or a writ of prohibition directing the defendants to disclose certain "documents and facts" related to the basis for the imposition of income tax upon her earnings and to prevent the defendants from imposing a tax lien upon wages due and payable to her. Apparently, the plaintiff has filed numerous requests under the Freedom of Information Act and the Privacy Act for the "documents and facts" she seeks (cf. Doc. 1, ex. A), but has received no response. The defendants move to dismiss the plaintiff's complaint for lack of personal jurisdiction and for lack of subject matter jurisdiction, pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure. In considering such a facial attack, the allegations in the complaint are taken as true. Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003).
The plaintiff is a self-employed wallpaper hanger who works as an independent contractor for various residential construction companies. On May 25, 2002, the IRS issued a notice of tax levy to Classic Homebuilders, Inc., ("Classic Homebuilders") one of the construction companies that had employed the plaintiff, stating that the plaintiff owed $46,301.81 in taxes and statutory penalties for the tax years of 1993, 1994, and 1995. The notice directed Classic Homebuilders to pay to the IRS any wages presently earned by the plaintiff or that may become payable in the future to satisfy her tax obligation. Apparently, Classic Homebuilders did so, much to the consternation of the plaintiff, who demanded that Classic Homebuilders pay her wages directly to her, instead of to the IRS, because the IRS had no authority to force her to complete a W-4 form or submit her social security number as a prerequisite to her employment. Shortly thereafter, the plaintiff filed this action.
This is not the first time the plaintiff has been before this court in relation to her tax liabilities for these tax years. In United States v. Bonner, 3:99cv192/RV, I found the plaintiff in civil contempt and ordered her to be incarcerated until she agreed to appear and produce documents to the IRS as directed by this court. After granting the plaintiff's subsequent motion to release her from custody, she again resisted efforts to disclose the necessary information, but complied after another order of this court.
The defendants' first argument is that this court lacks personal jurisdiction over them as agents of the United States, because the plaintiff has failed to properly effect service in compliance with Rule 4(i) of the Federal Rules of Civil Procedure. The plaintiff's complaint plainly seeks relief from the defendants in their official capacities as officers of the IRS, which, even the plaintiff concedes, is a branch of the government of the United States. Rule 4(i) of the Federal Rules of Civil Procedure provides that in order to effect service upon the United States in any action seeking relief from any officer of the Government in his official capacity, service of process must be made upon three individuals: (1) the United States attorney for the district in which the action is brought or his agent [Rule 4(i)(1)(A)]; (2) the Attorney General of the United States [Rule (4)(i)(1)(B)]; and (3) the individual officer or agent against whom the action is brought [Rule 4(i)(2)(A)]. Service upon these individuals may be effected by registered or certified mail. The record reveals that the plaintiff has personally served the individual government officers against whom this action is brought but has not served either the United States attorney for the Northern District of Florida or the Attorney General of the United States as required by Rule 4(i). Having failed to properly effect service upon the defendants, this court lacks personal jurisdiction over the defendants, and their motion to dismiss must be granted.
Rule 4(m) of the Federal Rules of Civil Procedure permits up to 1 20 days to effect service of process, and the plaintiff has not done so within that period, entitling the defendants to dismissal upon their motion. However, even if the plaintiff were permitted additional time to effect service, it would be futile for the reasons subsequently discussed in the text.
Even if this court could exercise personal jurisdiction over the defendants, this court lacks jurisdiction over the subject matter of the plaintiff's complaint. Although writs of mandamus have been abolished by Federal Rule of Civil Procedure 81(b), such an order may issue by way of a civil action and a properly made motion for injunctive relief under Rule 65. Further, Title 28, United States Code, Section 1361 generally gives district courts subject matter jurisdiction over any action "in the nature of mandamus" to compel an officer of the United States to perform a duty to the plaintiff. In the context of this case, however, these general provisions are trumped by the more specific Tax Anti-Injunction Act [ 26 U.S.C. § 7421 (a)] which provides that, except for certain enumerated exceptions not applicable here, "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."
Thus, the plaintiff's petition for a writ of mandamus is properly considered a complaint in a civil action which seeks injunctive relief. The parties are appropriately considered the plaintiff and the defendants, respectively.
The object of § 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. . . . The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue.Enochs v. Williams Packaging Nav. Co., 370 U.S. 1, 5-6, 82 S.Ct. 1125, 8 L.Ed.2d 292, 295-96 (1962) (emphasis added).
Only where the Government could not prevail under any conceivable circumstances and the plaintiff faces irreparable injury may a court intervene. Id. Indeed, even where the taxpayer clearly has exempt status, a district court is without jurisdiction to entertain the taxpayer's action to enjoin the IRS from imposing a tax lien because an adequate remedy is afforded in the Tax Court. Leves v. IRS Comnn'r, 796 F.2d 1433 (11th Cir. 1986). Here, the plaintiff is clearly attempting to seek injunctive relief to frustrate the collection of income tax. Section 7421(a) mandates that this court lacks subject matter jurisdiction over any attempt to prevent the collection of the income taxes the plaintiff owes by the imposition of a tax lien on her wages, or any attempt to dispute the basis for the imposition of the tax. Adequate remedies and procedures to challenge the basis for levy are provided in the Internal Revenue Code. See 26 U.S.C. § 6330-6331, 6672. Accordingly, the defendants' motion to dismiss must be granted.
For the foregoing reasons, the defendants' motion to dismiss the plaintiff's claims (doc. 8) is GRANTED. The plaintiff's petition/complaint is DISMISSED, without prejudice.
DONE and ORDERED.