Opinion
No C 01-0534 VRW
October 4, 2001
ORDER
Defendant moves to dismiss plaintiffs' petition for redress under FRCP 12(b)(6). Doc. #11. For the reasons stated below, defendant's motion is GRANTED.
Plaintiffs failed to pay federal income taxes in 1994 and 1995. In 1998, defendant began garnishing their wages. Defendant also garnished plaintiffs' 1998 state income tax refund and 1999 federal income tax refund. Plaintiffs filed a petition for redress on November 7, 2000, in Santa Cruz superior court. See 2/2/01 Notice of Removal (Doc. #1), Exh. A. The case was removed to this court upon defendant's motion. See id.
In a FRCP 12(b)(6) motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Dismissal is only appropriate if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
Plaintiffs argue that they are not liable for the graduated income tax because they are not United States citizens. Plaintiffs claim that they are non-resident aliens of the United States and citizens of the State of California and, as such, not subject to federal income tax. Courts flatly reject this argument. See Upton v. IRS, 104 F.3d 543, 545 n. 1 (2d Cir. 1997); United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993); United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993). Plaintiffs are subject to the graduated income tax.
Plaintiffs also allege that the federal government lacks authority to levy taxes against them. In support of their argument, plaintiffs cite part of 26 U.S.C. § 6331 (a): "Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia." But plaintiffs ignore the first sentence of that provision which explicitly authorizes "levy upon all property" of "any person liable to pay any tax." 26 U.S.C. § 6331 (a) (2001). By mentioning federal employees, Congress was not excluding other taxpayers, but rather making clear that federal employees were also subject to federal taxes. Craig v. Lowe, 78 AFTR 2d ¶ 96-5488 (N.D. Cal. 1996), citing Sims v. United States, 359 U.S. 108, 112-13 (1959) The government has statutory authority to levy taxes against plaintiffs.
Plaintiffs also claim that the IRS violated their rights under the Fourth, Fifth, Sixth and Seventh Amendments of the United States Constitution. For their claims under the Fourth and Sixth Amendments, plaintiffs merely quote each amendment without stating a claim.
Plaintiffs' claim under the Fifth Amendment is more developed but still unclear. Courts must liberally construe "inartful pleading" by pro se litigants. Washington v. Garrett, 10 F.3d 1421, 1432 n. 14 (9th Cir. 1993). Construing their claim liberally, plaintiffs appear to argue that garnishment of their wages violates the Fifth Amendment. This argument has no merit. Beltran v. Cohen, 303 F. Supp. 889 (N.D. Cal. 1969) (government's right to levy on taxpayer's wages does not violate due process); see also Quarty v. United States, 170 F.3d 961, 969 (9th Cir. 1999) (Congress' general exercise of its taxing power is not an unconstitutional taking). Plaintiffs also appear to argue that requiring them to disprove the Commissioner's deficiency determination violates their due process rights. This argument has also been rejected. McCoy v IRS, 696 F.2d 1234, 1236 (9th Cir. 1983). Plaintiffs have no valid claim under the Fifth Amendment.
Nor has plaintiffs' Seventh Amendment right to a jury trial been violated. The Seventh Amendment only applies to suits "at common law." U.S. Const. amend. VII. Because tax collection cases are not common law actions, no jury trial is required. See Olshausen v. Commissioner, 273 F.2d 23, 27-28 (9th Cir. 1959)
Finally, plaintiffs allege that the penalties assessed by the IRS against them constitute a bill of attainder. A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without the protection of a judicial trial. Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). Tax laws are not bills of attainder. First, tax laws do not punish an identifiable individual or group of individuals. Esparza v. United States, 54 AFTR 2d ¶ 84-5238 (C.D. Cal. 1984). "Rather, they simply proscribe certain conduct which is clearly set forth in the statutes and which can be easily avoided." Id. Second, tax laws are not a legislative determination of guilt, since an assessment can be challenged administratively and judicially. Id.
For the foregoing reasons, defendant's motion to dismiss (Doc. #11) is GRANTED. The clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.