Opinion
No. CV-06-0633-PHX-FJM.
May 25, 2006
ORDER
Plaintiff filed this action seeking the return of taxes collected from him by the Internal Revenue Service, as well as damages. In his complaint, plaintiff contends that the Internal Revenue Code does not apply to him, that income taxes are unconstitutional, and that payment of taxes is voluntary. Presently before this court is defendants' motion to dismiss (doc. 10). Plaintiff has not responded to this motion.
Defendants contend that the complaint should be dismissed because plaintiff failed to serve them in accordance with Rule 4(i), Fed.R.Civ.P., which provides that in order to effect service on an agency of the United States, its officers or employees, a plaintiff must provide copies of the summons and complaint to the local United States Attorney and send copies to the agency and the Attorney General of the United States. Here, plaintiff hand-delivered a copy of the summons and complaint to a Phoenix IRS office. Because plaintiff failed to effect proper service, this case must be dismissed.
Additionally, plaintiff named the Department of Treasury and the Internal Revenue Service as defendants in this case. However, federal agencies may not be sued in their own names except to the extent Congress has specifically allowed such suits. City of Whittier v. U.S. Dep't of Justice, 598 F.2d 561, 562 (9th Cir. 1979). Congress has made no provisions for suits against the IRS or the Department of Treasury, therefore neither is a proper defendant in this action.
To the extent plaintiff attempts to assert claims against government agents by naming "Does 1-50" in his complaint, his claims also fail. The doctrine of sovereign immunity bars actions for damages against federal officers in their official capacity absent express statutory consent to sue, Gilbert v. DaGrossa, 756 F.2d 1455, 1460 (9th Cir. 1985), and Bivens relief is not available for alleged constitutional violations related to the process of assessing and collecting taxes. Adams v. Johnson, 355 F.3d 1179, 1188 (9th Cir. 2004). Congress has enacted a comprehensive remedial scheme to address challenges to the assessment and collection of taxes. Apparently, plaintiff has chosen not to avail himself of these options.
Finally, plaintiff's failure to respond to the motion to dismiss serves as an additional, independent reason to grant the motion. Failure to respond to a motion "may be deemed a consent to the . . . granting of the motion, and the Court may dispose of the motion summarily." LRCiv 7.2(i).
Accordingly, IT IS ORDERED GRANTING defendants' motion to dismiss (doc. 10).