Opinion
Civil Action No. 02-0650-CG-C
October 8, 2002
ORDER
This action is before the court on the motion of the defendant, the Internal Revenue. Service ("IRS"), to dismiss (Doc. 5) and plaintiff's response thereto (Doc. 10). The court finds that neither the IRS nor the United States are proper parties to this action. Therefore, the motion to dismiss is due to be granted.
FACTS
The plaintiff, Jerry L. Turner, filed this action alleging that the IRS assessed an erroneous and excessive amount of employment and unemployment taxes against him. Plaintiff seeks a declaratory judgment determining the amount of his tax liability and an injunction prohibiting the IRS from collecting the taxes during the pendency of the suit.
LEGAL ANALYSIS
A motion to dismiss should not be granted "`unless the plaintiff can prove no set of facts which would entitle him to relief.'" Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir. 1996) (quoting Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir. 1993)). In making this determination, the court must "take all the allegations in the complaint as true, and view the complaint in the light most favorable to the plaintiff." Id.
The IRS asserts, and this court agrees, that it is not a proper party to this action. "The IRS cannot be sued in its own name because it is not an agency permitted by Congress to be sued eo nomine." Price v. I.R.S., 2002 WL 1058154, (S.D. Ala. April 11, 2002) (citing Castleberry v. Alcohol Tobacco and Firearms Division of Treasury Dept. of U.S., 530 F.2d 672, 673 n. 3 (5th Cir. 1976) ("Congress has not constituted the Treasury Department or any of its subdivisions or bureaus as a body corporate and has not authorized either or any of them to be sued eo nomine")).
Even if the court were to treat this action as a case against the United States, plaintiff would still not have stated a claim upon which relief could be granted because the United States is also not a proper party to this action. The United States may be sued only to the extent that it has expressly and unambiguously consented to being sued. United States v. Dalm, 494 U.S. 596, 608 (1990); Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps. of Engineers, 87 F.3d 1242, 1249 (11th Cir. 1996). Declaratory Judgments are not available in federal tax cases, except unlimited circumstances not applicable here. The Declaratory Judgment Act, which authorizes federal courts to provide declaratory relief, provides, in relevant part:
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.28 U.S.C. § 2201(a). Section 7428 of the Internal Revenue Code of 1986 involves the tax-exempt status of charitable organizations and has no application in this case. Courts have determined that the purpose of this prohibition is to insulate the determination, assessment, and collection of taxes from pre-enforcement judicial interference. See, e.g., Gattuso v. Pecorella, 733 F.2d 709-10 (9th Cir. 1984) (district court lacked jurisdiction under the Declaratory Judgment Act to "abate the findings" that taxpayers had taxable income for the years in question); Melton v. Kurtz, 575 F.2d 547, 548 (5th Cir. 1978) (since both the Declaratory Judgment Act and the Internal Revenue Code's anti-injunction statute bar declaratory and injunctive relief in actions involving federal taxes, neither injunctive nor declaratory relief were available to taxpayer, who sought such relief with respect to collection and assessment of federal taxes). "Any statutory provisions allowing suits against the United States must be construed strictly." Preserve Endanged Areas of Cobb's History, Inc., 87 F.3d at 1249 (citingRuckelshaus v. Sierra Club, 463 U.S. 680, 685-86 (1983)). Therefore, by the express terms of the Declaratory Judgment Act, declaratory relief is not available in this case involving federal taxes. Because the United States has not waived its sovereign immunity, this court lacks jurisdiction over plaintiffs claim for declaratory relief.
The only other relief sought in the complaint was for injunctive relief, prohibiting the IRS "from taking any further action for levy or collection until such as this Court has made its determination of said tax liability." (Doc. 1, emphasis added). Having determined that the claim for declaratory relief is due to be dismissed, the claim for injunctive relief is also due to be dismissed.
CONCLUSION
Upon consideration, the motion of defendant, the Internal Revenue Service, to dismiss (Doc. 5) is GRANTED. It is hereby ORDERED that this action is DISMISSED pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.