Opinion
NO. 3:04-0463.
February 8, 2005
TO: Honorable Robert L. Echols, Chief District Judge.
REPORT AND RECOMMENDATION
By order entered June 7, 2004 (Docket Entry No. 2), the Court referred this action to the Magistrate Judge for proceedings under 28 U.S.C. §§ 636(b) (1) (A) and (B) and under Rule 72(a) and (b) of the Federal Rules of Civil Procedure.
Presently pending before the Court is Defendant's motion to dismiss (Docket Entry No. 3), to which Plaintiff has filed a response in opposition (Docket Entry No. 8). For the reasons set out below, the Court recommends that the motion be granted and this action be dismissed.
I. BACKGROUND
Plaintiff, who is proceeding pro se, filed this action on May 25, 2004, alleging that his civil rights had been violated. Named as defendant to the complaint is Scott Biggs, an agent with the United States Internal Revenue Service ("IRS").
On September 20, 2003, the IRS issued to Plaintiff a "Final Notice — Notice of Intent to Levy and Notice of Your Right to a Hearing" based upon Plaintiff's unpaid income tax liability for the year 2000. On October 20, 2003, Plaintiff filed a request for a Collection Due Process Hearing ("CDPH") in accordance with 28 U.S.C. § 6330(b). After an exchange of letters with Plaintiff concerning the matter, Defendant informed Plaintiff by letter, dated March 2, 2004, that he had not raised any issues warranting a CDPH and had not accepted an offer for a telephone conference.See Complaint, Exhibit No. 1. Accordingly, on March 5, 2004, a "Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330" was issued. This notice informed Plaintiff that, if he wanted to dispute the notice of determination, he should file a petition with the United States Tax Court within 30 days. See Complaint, Exhibit 2.
Instead of filing a petition with the United States Tax Court, Plaintiff filed the instant action. Plaintiff asserts that he is not challenging the alleged tax liability or collection thereof, but is solely challenging the Defendant's decision to deny him a face-to-face CDPH which Plaintiff contends violated his Fifth Amendment due process rights. Invoking jurisdiction under 28 U.S.C. §§ 1331, 1361, and 1391, Plaintiff seeks: 1) a declaratory judgment that Defendant violated the law and Plaintiff's due process rights; 2) injunctive relief ordering Defendant and/or the IRS to provide him with a CDPH and to obey the law in the future; 3) suspension of any collection efforts against Plaintiff pending a final determination; and 4) costs and attorney fees.See Complaint at 4-5.
In lieu of an answer, Defendant has filed the pending motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. Defendant contends that this Court lacks subject matter jurisdiction over the complaint because jurisdiction rests with the United States Tax Court, not with this Court. Defendant also contends that the complaint is untimely.
II. CONCLUSIONS
A motion to dismiss for lack of subject matter jurisdiction is reviewed under the standard that dismissal is appropriate only if it appears beyond doubt that Plaintiff can prove no set of facts in support of his alleged claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). For the purpose of a motion to dismiss, the allegations of Plaintiff's complaint are liberally construed and taken as true.Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). Pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 509 (1972), however, that liberality does not allow the court to conjure up unpled facts. McFadden v. Lucas, 713 F.2d 143, 147, n. 4 (5th Cir. 1983).
The Court finds Defendant's argument that this action should have been filed with the United States Tax Court to have merit. Because the tax liability at issue involves income tax, jurisdiction over an appeal of the tax liability determination is vested with the United States Tax Court. See 26 U.S.C. § 6330(d) (1); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004).
Plaintiff argues that jurisdiction rests with this Court because what he is complaining about is a violation of his civil rights. Plaintiff explains that he is seeking mandamus relief, specifically an order requiring Defendant to "do his job." See Docket Entry No. 8, at 3. Regardless of how Plaintiff characterizes his complaint, he is essentially seeking review of the determination of the assessed tax liability. He challenges the procedure used to make this determination, asserting that the procedure was unlawful because a face-to-face CDPH did not occur. Further, Plaintiff's argument that jurisdiction shifts from the United States Tax Court to the United States District Court by the assertion of a due process claim has previously been made and rejected by this very Court in White v. United States, 250 F.Supp.2d. 919, 921-22 (M.D. Tenn. 2003). See also Voelker, supra; True v. Commissioner of the Internal Revenue Service, 108 F.Supp. 2d 1361 (M.D. Fla. 2000); Brown v. Doran, 2003 WL 23168946 (M.D.N.C., Dec. 2, 2003). Plaintiff has asserted nothing in his response in opposition to dismissal which distinguishes his action in any significant way from White, Voelker, True, or Brown.
Because the Court finds that this Court has no jurisdiction over Plaintiff's claims, it is not necessary to address Defendant's argument that the complaint was untimely.
RECOMMENDATION
The Court respectfully RECOMMENDS that the motions to dismiss (Docket Entry No. 3) be GRANTED and that this action be DISMISSED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of receipt of this notice and must state with particularity the specific portions of this Report and Recommendation to which objection is made. Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).