Summary
dismissing pro se plaintiff's "Libel of Review" for lack of subject matter jurisdiction, where plaintiff sought to enjoin the IRS from seeking payment of taxes by plaintiff
Summary of this case from Wayne v. MacGillivrayOpinion
Case No. 2:04-CV-645.
November 8, 2004
MEMORANDUM ORDER
Plaintiff Wayne Noah filed suit against Internal Revenue Service ("IRS") Agent Martha Bowman, challenging her authority to investigate and determine his federal income tax liabilities for the years 2000 and 2001. This matter is currently before the Court on Defendant's unopposed motion to dismiss (Record at 4). For the reasons stated below, the Court grants Defendant's motion.
The Complaint refers to "Wayne Noah of the Gingerich family," "Wayne N. Gingerich," and "Wayne Noah Gingerich."
I. Background
IRS Agent Martha Bowman, seeking to determine Plaintiff's federal income tax liability for the years 2000 and 2001, sent Plaintiff and his wife a letter scheduling a July 22, 2004 appointment in their home. She also requested that they have available at that time certain relevant documents. In response, Plaintiff filed the instant lawsuit seeking injunctive relief. Attached to his complaint were Bowman's letter and document request forms. The words "Refusal for cause" were written across each page. Plaintiff's complaint is entitled "Libel of Review — common law counterclaim in admiralty — Re: God-given unalienable rights in the original estate — Article III: Constitution." Plaintiff essentially argues that if Ms. Bowman has a claim against him, she must file it "in the appropriate district court prior to exercising rights to that claim." According to Plaintiff, because Bowman has not filed any such claim, she has no authority to enter his land or to pursue her investigation.
Although Plaintiff calls this a "counterclaim," Bowman has not asserted any cause of action against him.
On August 27, 2004, Defendant filed a motion to dismiss this action for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process, and failure to state a claim upon which relief may be granted. Plaintiff has failed to respond to that motion within the time allotted.
II. Discussion
Standing alone, Plaintiff's failure to respond to Defendant's motion is insufficient grounds upon which to dismiss the complaint in its entirety. See Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). Furthermore, complaints filed by pro se litigants must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nevertheless, after careful consideration of Plaintiff's complaint and Defendant's motion to dismiss, the Court finds that dismissal is proper on at least two grounds.
First, this Court lacks jurisdiction to grant the relief requested by Plaintiff. Congress has given the IRS the authority to "inquire after and concerning all persons . . . who may be liable to pay any internal revenue tax." 26 U.S.C. § 7601. The IRS "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). Furthermore, as a general matter, courts have no jurisdiction to enjoin the IRS from assessing and collecting taxes. See 26 U.S.C. § 7421(a) (the "Anti-Injunction Act"). Unless there is no chance the IRS will prevail, a district court has no jurisdiction to entertain a suit for injunctive relief. See Enochs v. Williams Packing and Navigation Co., Inc., 370 U.S. 1, 7-8 (1962) ("the manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund."). Based on the current record, the Court cannot say that the Government has no chance of prevailing. Therefore, Plaintiff's claim must be dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
Dismissal is also proper based on insufficient service of process. Rule 4(i)(2) of the Federal Rules of Civil Procedure states, "[s]ervice on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation." Fed.R.Civ.P. 4(i)(2)(A). Since Martha Bowman is sued only in her official capacity as an IRS agent, Plaintiff must effect service in accordance with Fed.R.Civ.P. 4(i)(1) which requires service:
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and
(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.
Fed.R.Civ.P. 4(i)(1). Plaintiff did not deliver a copy of the summons and complaint to the United States Attorney for the Southern District of Ohio, nor did he send a copy to the Attorney General of the United States. Since Plaintiff has failed to effect proper service, dismissal is proper pursuant to Fed.R.Civ.P. 12(b)(5).
In summary, no matter how liberally Plaintiff's complaint is construed, it appears that he can prove no set of facts in support of his claim that would entitle him to relief. Even construing the complaint in the light most favorable to Plaintiff and accepting all well-pleaded material allegations as true, the Court concludes that dismissal of the complaint is proper because Plaintiff has failed to establish subject matter jurisdiction and has failed to effect proper service.
III. Conclusion
For the reasons stated above, Defendant's motion to dismiss (Record at 4) is GRANTED and Plaintiff's complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.