Opinion
CASE NO. 3:03 CV 7244
July 9, 2003
MEMORANDUM OF OPINION
On May 19, 2003, a complaint was filed in this court by pro se plaintiffs Edward and Dorothy Romp. Upon initial review, the court notified the plaintiffs that there were no facts alleged in the complaint which could be construed to set forth a valid federal claim for relief. They were ordered to file an amended complaint setting forth a valid claim within 15 days of the court's June 17, 2003 order or the complaint would be subject to dismissal. Catz v. Chalker, 142 F.3d 279 (6th Cir. 1998); Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983). An amended complaint was filed by the Romps on June 27, 2003 against the United States of America, the Internal Revenue Service (I.R.S.), John Gallagher, Christie Arlinghaus-Clem, Andrew A. Okapal, Diane Villa and J. Does pursuant to 26 1 U.S.C. § 7433. Plaintiffs seek damages in excess of $82,500.00, unspecified punitive damages and injunctive relief prohibiting the I.R.S. from "engaging in any future tax collection activities against them." (Am. Compl. at 2.)
In their amended complaint, the Romps allege that since 1995, the defendants have "knowingly demanded and collected other or greater sums from Plaintiffs than authorized by law." (Am. Compl. at 1.) As examples of the defendants' alleged violations, the Romps attach two letters from the I.R.S. The first letter is captioned: "Reminder Notice" ("Notice"), dated January 18, 2001 and signed by I.R.S. Chief, Automated Branch John Gallagher. (Letter from Gallagher to Romp of 1/18/01, at 1, Ex. A at 1.) The Notice is addressed to Edward and Dorothy Romp and explains that the I.R.S. is required by law to periodically remind taxpayers to pay their overdue tax. The Romps are advised that the amount they owe is shown on the back of the letter and that they may send full payment of the tax or telephone the I.R.S. if they believe the overdue tax is incorrect or they are unable to pay the taxes in full. In closing, the Romps are advised to respond to the Notice within ten days to avoid possible enforcement action.
In the I.R.S.'s second letter, dated March 11, 2002 and captioned Final Notice/ Notice of Intent to Levy and Notice of Your Right to a Hearing, the Romps received the following notice, in part:
Your federal tax is still not paid. We previously asked you to pay this, but we still haven't received your payment. This correspondence is your notice of our intent to levy under Internal Revenue Code (IRC) Section 6331 and your right to receive Appeals consideration under IRC Section 6330.
We may file a Notice of Federal Tax Lien at any time to protect the government's interest. A lien is a public notice to your creditors that the government has a right to your current assets, including any assets you acquire after we file the lien.
(Letter from I.R.S. to Romp of 3/11/02, at 1, Ex. B at 1.)
The Romps claim that the letters attached to their amended complaint reflect their efforts to "continuously object" to the defendants' actions. In a letter dated March, 2002, in response to the I.R.S.'s March 11, 2002 Notice, Edward Romp asserts that "[p]ursuant to 26 U.S.C. § 6203, this is my request for verified copies of the complete records of assessment for the years 1998 and 2000. Please be advised that a lawful, procedurally proper, assessment must meet the requirements of 26 C.F.R. § 301.6203-1 and that absent such assessment, no tax liability attaches to me. I have come to the conclusion that no tax liability has attached to me by relying on the following authorities: 26 U.S.C. § 6501 [case citations omitted]." (Letter from Romp to I.R.S. of 3/02, at 1, Ex. C at 1.)
The Romps attach a copy of a letter to defendant Christie Arlinghaus-Clem, dated May, 2002, wherein Edward Romp responds to her letter of April 1, 2002. He complains that she has not responded to his request for "verified copies of the complete records of assessment for the years 1998 and 2000. . . . as required under 26 U.S.C. § 6203." (Letter from Romp to Arlinghaus-Clem of 5/02, at 1, Ex. D at 1.) Again, Edward Romp asserts that no tax liability has attached to him based on 26 U.S.C. § 6501, inter alia. He adds that "[a]ccording to the I.R.S. Restructuring and Reform Act of 1998, there are grave penalties for I.R.S. employees who attempt to collect more tax than owed." (Letter from Romp to Arlinghaus-Clem of 5/02, at 1, Ex. D at 1.)
The Romps do not attach a copy of Ms. Arlinghaus-Clem's letter to their amended complaint.
In two additional letters to I.R.S. Appeals Team Manager Diane Villa, dated January 2003, and I.R.S. Settlement Officer Andrew Okapal, dated April 2003, Edward Romp responds to correspondence from the I.R.S. dated December 17, 2002 and March 25, 2003, respectively. Although he does not provide copies of the I.R.S. letters to the court, it is clear that he continues to dispute that he is liable for any taxes. He adds that "[s]ince I am not, nor have ever been a government officer, employee or elected official, the Secretary has no authority to make any levy upon me in the first place." (Letter from Romp to Okapal of 4/03, at 1, Ex. F at 1.)
Claiming this court's jurisdiction pursuant to 26 U.S.C. § 7433, the Romps assert the defendants have violated " 26 U.S.C. § 7214(a) (1-9) and possibly 6331, 6501, 6303, and 26 C.F.R. § 6303-1, 6203-1." (Am. Compl. at 1.)
Anti-Injunction Act
The Anti-Injunction Act specifically prohibits courts from exercising jurisdiction over a suit "for the purpose of restraining the assessment or collection of any tax." 26 U.S.C. § 7421(a). The purpose of the Anti-Injunction Act 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." J.L. Enochs v. Williams Packing Navigation Co, 370 U.S. 1, 7 (1962). Therefore, to the extent that the Romps seek to enjoin any I.R.S. collection activities, their claim cannot proceed.
Section 7421 does provide, in pertinent part, that: "[e]xcept as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not the person is the person against whom such tax was assessed." 26 U.S.C. § 7421(a). It does not appear that any of the exceptions listed in Section 7421(a) have any application to the Romps amended complaint. Therefore, the plaintiffs' request for injunctive relief is barred by the Anti-Injunction Act.
Section 6015(e) provides for petition for review by the United States Tax Court. Section 6212(a) provides for notice of deficiency. Section 6212(c) restricts further notices of deficiency. Section 6213(a) sets forth the time after a notice of deficiency is issued to petition the United States Tax Court for relief. Section 6225(a) provides restrictions on assessment and collection attributable to a partnership. Section 6246(b) provides for an injunction against premature action with respect to a partnership adjustment. Section 6330(e)(1) pertains to suspension of specified actions during the pendency of a hearing before levy pursuant to Section 6330(a). Section 6331 pertains to levy and distraint. Section 6331(i) provides for an injunction notwithstanding Section 7421(a) for "any unpaid divisible tax." Section 6672 pertains to the failure to collect and pay over tax or attempt to evade or defeat tax. Section 6694 pertains to the understatement of a taxpayer's liability by an income tax return preparer. Section 7426 pertains to civil actions by persons other than taxpayers. Section 7429 pertains to review of jeopardy levy or assessment procedures. Section 7436 pertains to proceedings for determination of employment status.
In order to state a valid claim against any defendant, a complaint must set forth facts which, if true, would support a recovery under some recognized cause of action. With regard to claims filed pursuant to § 7433, the statute provides:
If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.26 U.S.C. § 7433. To state a valid claim under section 7433, a plaintiff must assert facts showing that an officer or employee of the I.R.S. has disregarded the provision of the Internal Revenue Code in connection with collection of federal tax. See Williams v. United States, No. 97-5820, 1998 WL 537579, at *4 (6th Cir. Aug.7, 1998) ("The scope of 7433 is limited to unauthorized collection actions and does not extend to determinations of liability."); Bouquett v. United States, No. 96-4239, 1998 WL 69842, at *2 (6th Cir. Feb.10, 1998) (section 7433 "does not provide taxpayers a cause of action for allegedly improper assessment of amounts of taxes"); Shaw v. United States, 20 F.3d 182, 184 (5th Cir. 1994) (even if I.R.S. improperly assessed tax liability against taxpayer, taxpayer had no claim under section 7433 in the absence of proof of improper collection procedures); Ihasz v. United States, 997 F. Supp. 547, 549-50 (D.Vt. 1997). The mere assertion of "no tax liability," without more, is insufficient to create liability. See Shaw, 20 F.3d at 184.
The Romps' submissions to this court utterly fail to state a claim under section 7433. They have presented only conclusory allegations to the effect that no tax liability has attached to them. Such meritless contentions have been routinely rejected by the federal courts. See United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994). In the absence of an allegation of facts supporting the implausible claims that the Romps now assert, this court cannot assume that they are immune from the tax laws and are therefore being pursued by defendants in violation of the Internal Revenue Code.
Notwithstanding the fact that their claim lacks merit, their claims against the individual revenue agents are barred by the exclusive remedy provision of 26 U.S.C. § 7433. The Sixth Circuit has explicitly held that section 7433 is an exclusive remedy and bars claims against individual revenue agents. Fishburn v. Brown, 125 F.3d 979, 982-83 (6th Cir. 1997). Consequently, construing their amended complaint as an attempt to assert liability against the individual defendants under the theory of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the court concludes that such a Bivens claim is barred. See Fishburn, 125 F.3d at 982-83. Furthermore, the criminal statute upon which the Romps rely, 26 U.S.C. § 7214, creates no private cause of action and is insufficient to sustain a civil claim. See Purk v. United States, 747 F. Supp. 1243, 1248 (S.D.Ohio 1989); see also Detwiler v. United States, 406 F. Supp. 695 (E.D.Pa. 1975), affirmed 544 F.2d 512, cert. denied, 429 U.S. 1105 (Acts of internal revenue agents which resulted in liens, attachment of wages and other assets and which allegedly amounted to willful oppression on part of agents were to be redressed, if true, in a criminal action brought by the United States rather than in a civil action brought by plaintiff as a private individual).
Based on the foregoing, plaintiffs complaint is dismissed. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED.
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good faith.