Opinion
Civil No. 04-84-AA.
April 19, 2004
Kirk Leroy, In care of: Route 2, Heppner, Oregon, Plaintiff Pro Se.
Karin Immergut, United States Attorney, District of Oregon, Jennifer A. Giaimo, Trial Attorney, Trial Attorney, Tax Division, U.S. Department of Justice, Washington, D.C., Attorneys for defendant.
OPINION AND ORDER
Defendant moves to dismiss pursuant to Fed.R.Civ.P. 4(i) and 12(b)(5) for failure to properly served the defendant, and/or pursuant to Fed.R.Civ.P. 12(b)(1) because this court lacks subject matter jurisdiction. I find that plaintiff failed to serve the United States as the proper party defendant, and that this court lacks subject matter jurisdiction. Therefore, defendant's motion to dismiss the case is granted.
BACKGROUND
On January 20, 2004, plaintiff filed this action pro se. His complaint is titled, "Counterclaim — in admiralty — Re: Godgiven unalienable rights in the original estate — Article III; Constitution." See Complaint, p. 1. In his complaint plaintiff provides several pages of unintelligible "facts," and "accusations." Plaintiff fails to identify any specific cause of action upon which his complaint is based. However, based on plaintiff's attachments to his Complaint, the court will assume that plaintiff's objective in filing the complaint is to prevent the Internal Revenue Service (IRS) from assessing and collecting certain outstanding tax liabilities. See attachments to the Complaint.
Upon service of defendant's motion to dismiss, plaintiff returned the motion to the defendant via registered mail with every page marked through in red ink stating, "Refusal for Cause." In his Certificate of Mailing, the plaintiff wrote:
Please file this refusal for cause in the case jacket of Article III case CV04-0084. This is evidence if this presenter claims I have obligations to perform or makes false claims against me in the future. A copy of this instruction has been sent with the original refusal for cause back to the presenter in a timely fashion.
Plaintiff filed no further opposition to defendant's motion.
DISCUSSION
The defendant first argues that plaintiff failed to properly serve the defendant. Defendant Thomas B. Matthews is the only named defendant in this action. Matthews is an IRS employee based in Ogden, Utah who sent a Notice of Deficiency letter to the plaintiff informing him that the IRS had conducted an audit of his income tax liability for tax year 2001. The audit was conducted due to plaintiff's failure to file a tax return and resulted in plaintiff's federal income tax liability in the amount of $11,943.00 plus additional penalties.
Plaintiff's claims against Matthews were for actions taken by Matthews in his official capacity as a government employee. Thus, any claims potentially alleged against Matthews in his individual capacity are dismissed. Further, regarding claims against Matthews for actions taken by him in his official capacity, the lawsuit is one against the United States. Dugan v. Rank, 372 U.S. 609 (1962). Thus, the United States is the proper party defendant in this action. The defendant asserts that this lawsuit should be dismissed based on plaintiff's failure to properly serve the United States. See Fed.R.Civ.P. 4(i). I agree, and finding no good cause for plaintiff's failure to properly serve the United States, this action is dismissed. See McNeil v. United States, 508 U.S. 106, 112 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Moreover, this case is dismissed pursuant to Fed.R.Civ.P. 12(b)(1) based on lack of subject matter jurisdiction. Although plaintiff's specific claim for relief is difficult to understand, it appears that plaintiff seeks to have the IRS enjoined from assessing and collecting the tax liabilities he owes. See Complaint, p. 3-4. Plaintiff's complaint consists primarily of tax protester arguments which have been resoundingly rejected by this court. See Dorothea Joan v. J. Pruett, CV 03-6111-HO;Chester Evans v. Ann Firth, CV 03-1195-BR; and Harold Gookhee v. Deborah Caisse, CV 04-85-BR.
Further, the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars all suits "for the purpose of restraining the assessment of any tax."See Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 770 (9th Cir. 1986) (citation omitted). The Anti-Injunction Act is subject to limited statutory exceptions, none of which apply here. See 26 U.S.C. § 7421(a). There also exists a narrow judicial exception requiring the taxpayer to show both: (1) that "under no circumstances could the Government ultimately prevail" on the merits; and (2) that "equity jurisdiction otherwise exists," i.e., that the taxpayer is threatened with irreparable harm and that there is no adequate legal remedy available. See Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 6-8 (1962). Plaintiff has failed to make any showing that he might be eligible for the judicial exception to the Anti-Injunction Act. Plaintiff alleges only that collection of his federal tax liabilities by IRS employees amounts to "theft or kidnap actions from any foreign agents or principals." See Complaint, p. 4 (emphasis in original).
Finally, plaintiff mentions "theft" several times throughout his Complaint, therefore, the court will consider that plaintiff might be alleging a claim under the Federal Tort Claims Act (FTCA). Any such claim fails because first, the claim is premature in that plaintiff has failed to allege that the United States (or any IRS employee) has actually taken any of his property; and second, plaintiff has failed to show that the United States waived its sovereign immunity under the FTCA. To the extent that plaintiff seeks a remedy against the United States for injury or loss of property or personal injury arising or resulting from any act or omission of IRS employees while acting within the scope of their office or employment, plaintiff's claims are barred. The FTCA is the exclusive remedy for such claims against the United States. 28 U.S.C. § 2679(b). The FTCA, however, does not waive sovereign immunity with respect "to any claim arising in respect of the assessment or collection of any tax." 28 U.S.C. § 2680(c).
Here, plaintiff's complaint relates to attempts by the IRS to assess, and eventually collect, his outstanding tax liabilities. This is an "activit[y] which clearly relate[s] to the federal government's tax assessment and collection functions." National Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246 (10th Cir. 1989). Therefore, if this court construes the complaint as including any claim under the FTCA, the complaint falls under the purview of 28 U.S.C. § 2680(c) and the United States has not waived its sovereign immunity from such a claim. Accordingly, pursuant to Fed.R.Civ.P. 12(b)(1), any such claim is dismissed for lack of subject matter jurisdiction.
CONCLUSION
Defendant's motion to dismiss (doc. 4) is granted and this case is dismissed. All pending motions are denied as moot.IT IS SO ORDERED.