Opinion
No. SA-05-CV-8-RF.
June 6, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss (Docket No. 2), filed February 17, 2005, as well as Plaintiff's Response filed March 8, 2005. After due consideration, the Court is of the opinion that the Motion to Dismiss should be GRANTED.
Plaintiff brings this suit pro se against Defendant Sherry Kenisky, Internal Revenue Service ("IRS") Settlement Officer, for denying him a Collection Due Process ("CDP") hearing concerning penalties and interest against Plaintiff for tax year 1992.
26 USCA §§ 6320 and 6330; 34 Am. Jur. 2d Federal Taxation ¶ 71944.
Plaintiff timely requested a CDP hearing, Defendant sent a letter on September 20, 2004 stating without specificity that Courts have found Plaintiff's issues to be frivolous or groundless and offered Plaintiff only a telephone hearing.
Defendant asserts that Plaintiff has failed to state a claim upon which relief may be granted and that this Court lacks subject matter jurisdiction over the complaint.
Plaintiff fails to state a claim because he brought a Bivens-type action stating that Defendant had violated his Constitutional Due Process rights. However, the Supreme Court has consistently held that there is no Bivens action when Congress has provided adequate remedial mechanisms against the United States. In this case, Congress gave taxpayers the right to judicial review of IRS Appeals Collection Due Process determinations through the Tax Court.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Id; Schweiker v. Chilicky, 487 U.S. 412, 421-423 (1988); Berry v. Hollander, 925 F.2d 311, 313 (9th Cir. 1991).
26. U.S.C. § 6330(d).
CONCLUSION
The Court therefore finds that Plaintiff failed to state a claim upon which relief may be granted. Accordingly, the Court Orders that Defendant's Motion to Dismiss (Docket No. 2) be GRANTED.