Opinion
Case No. CV-S-04-0261-KJD (PAL).
April 12, 2005
ORDER
Presently, the Court has before it Defendant's Motion to Dismiss (#8). The Court sent Plaintiff a Klingele notice. In what appears to be a response to the motion to dismiss, Plaintiff filed a "Re-declaration of Amendment of Notice of Leave of the United States District Court for Want of Jurisdiction, Arrest of Proceedings, and Other Material Matters" (#10).
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
I. Background.
In March 2004, Plaintiff Leonard Stout, proceeding pro se, filed a complaint seeking to set aside an alleged "invalid" collection due process determination for income tax liabilities and frivolous return penalties issue pursuant to 26 U.S.C. § 6330. The proposed collection activity resulted from Plaintiff's federal income tax returns filed for the 1996, 1997, and 1998 income tax years. The returns had zeroes on all the lines of the returns which reflected income or tax due to the government. Plaintiff attached statements to the returns which set forth arguments as to why he believed he did not owe federal income taxes. However, the IRS records indicated that Plaintiff received income in each of the years at issue. The IRS assessed $500.00 frivolous return penalties against Plaintiff, for each year, as well as income tax liabilities for 1997 and 1998, issued notices of intent to levy to collect the liabilities, and provided Plaintiff with notice of his rights to a collection due process proceeding to contest the liabilities.
Plaintiff made a timely request for a collection due process hearing. Because Plaintiff raised only frivolous arguments in his request, the hearing was conducted by correspondence. The IRS appeal officer reviewed collection activity for both the income tax liabilities and the frivolous return penalties. Plaintiff continued to raise frivolous arguments, stated that he did not owe the underlying taxes, and offered no collection alternatives.
On February 6, 2004, the IRS sent Plaintiff separate Notices of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 ("Notices of Determination") for the frivolous return penalties and the underlying income tax liabilities. The Notices of Determination informed Plaintiff that his arguments lacked merit and that the proposed levy to collect the income taxes and the frivolous return penalties would not be restricted. Attachments to the Notices of Determination explained that the IRS appeals officer determined that the IRS complied with all applicable laws, regulations and administrative procedures and that Plaintiff's allegations concerning liability were frivolous. In response to the Notices of Determination, the Plaintiff filed the instant complaint. II. Analysis.
On June 22, 2004, the Plaintiff filed what the Government aptly described as "a disjunctive, incoherent document." Plaintiff titled this document "Notice of Leave of the United States District Court for Want of Jurisdiction, Arrest of Proceedings, and Other Material Matters." This document sought to intervene in case no. A483483, Premises Known as Freedom Books v. United States that was filed in state district court. This state court case was later removed to federal court and given the case no. CV-S-04-0505-RCJ-LRL. Plaintiff sought intervention apparently because he was or is an associate of the plaintiffs in that case and the Government might possess some of his personal property or communications with these plaintiffs. The Court dismissed case no. CV-S-04-0505-RCJ-LRL on August 6, 2004.
On November 3, 2004, and in response to Defendant's motion to dismiss, Plaintiff filed another pleading seeking intervention in case no. CV-S-04-0505-RCJ-LRL even though that case had a ready been dismissed. Again, Plaintiff presented the court with a disjunctive, incoherent document. Plaintiff titled this document "Re-declaration and Amendment of Notice of Leave of the United States District Court for Want of Jurisdiction, Arrest of Proceedings, and Other Material Matters."
Pursuant to the Local Rules, an opposing party has fifteen days in which to file a response to a motion. See LR 7-2(b). Failure to file a response shall constitute a consent to the granting of the motion. See id. 7-2(d). Here, more than fifteen days have passed and Plaintiff failed to file a response opposing Defendant's motion to dismiss. This failure to oppose constitutes consent to granting Defendant's motion.
Although Plaintiff filed his "Re-declaration and Amendment of Notice of Leave" (#10) after Defendant had filed its motion to dismiss, the Court has reviewed Plaintiff's document and finds that it is not in response to the motion to dismiss. Rather, Plaintiff seeks a "re-declaration" of his intent to intervene in case no. CV-S-04-0505-RCJ-LRL which was case no. A483483 in state district court.
Moreover, after having read and considered Plaintiff's complaint (#1), Notice of Leave (#2), and Re-declaration and Amendment of Notice of Leave (#10), as well as Defendant's Motion to Dismiss (#8), the Court finds good cause for dismissing Plaintiff's complaint. First venue is inappropriate in this Court as Plaintiff is a resident of Arizona. See 28 U.S.C. § 1402(a)(1). Second, Plaintiff's arguments are frivolous. Plaintiff presents the same frivolous arguments that have inundated this Court by similar tax protestors. For example, Plaintiff's contention that no statute establishes his liability for income taxes is patently frivolous and has been rejected by the courts. See, e.g., Sisemore v. United States, 797 F.2d 268, 270 (6th Cir. 1986); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985); Lemieux v. United States, 230 F. Supp. 2d 1143, 1146 (D. Nev. 2002). Moreover, this Court has rejected the same arguments concerning whether the IRS followed the correct procedures that Plaintiff now challenges. See Foster v. United States, 89 A.F.T.R. 2d 2002-2927 (D. Nev. 2002). Finally, to the extent Plaintiff challenges the underlying income tax liabilities, the Court lacks subject matter jurisdiction. Judicial review lies in the United States Tax Court and not this Court. See 26 U.S.C. §§ 6213(a), 6330(d)(1);Moore v. Comm'r of Internal Revenue, 114 T.C. 171, 175 (2000).
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (#8) is GRANTED.