Summary
treating action seeking arising out of a federal tax lien on property as result of failure to file federal income taxes against Commissioner of Internal Revenue as an action against the United States
Summary of this case from Ray v. LowderOpinion
NO. 02-60754-CIV-ZLOCH
October 17, 2002
ORDER
THIS MATTER is before the Court upon Defendant, Commissioner of Internal Revenue's Motion To Dismiss (DE 9). The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.
The Plaintiff, Elvin Guzman, commenced the above-styled cause by filing a Complaint (DE 1) seeking judicial review of a federal tax lien filed against Plaintiff's property and $1,000,000 in damages stemming from filing of the tax lien. The Court notes that on April 16, 2002 the Internal Revenue Service filed a federal tax lien on Plaintiff's property pursuant to sections 6321, 6322 and 6323 of the Internal Revenue Code. This tax lien was based on Plaintiff's failure to file federal income taxes in 1995 and 1996. (Compl. Addendum B.) Plaintiff alleges that this Court has jurisdiction to review the factual basis of the federal tax lien pursuant to 26 U.S.C. § 7429 (b). (Compl. ¶ 2.) In the instant Motion the Defendant asserts that this Court lacks subject matter jurisdiction over the instant action. (Def.'s Mot. To Dismiss p. 3-4.) Additionally, Defendant argues that Plaintiff has not exhausted his administrative remedies, has not pursued an appeal of an administrative determination in the appropriate court, and has not stated a claim upon which relief can be granted. (Id. pp. 4-10.)
The Court notes that Plaintiff did not file a response to the instant Motion. Moreover, on August 27, 2002 the Court issued an Order (DE 10) requiring Plaintiff to file a response to the instant Motion on or before September 3, 2002. As of the date of this Order, Plaintiff has not filed a response to the instant Motion or the August 27, 2002 Order of this Court.
I. Motion To Dismiss Standard
The Court notes that only a generalized statement of facts needs to be set out to comply with the liberal pleading requirements of the liberal pleading requirements of the Federal Rules of Civil Procedure. Fed.R.Civ.p. 8(a). A classic formulation of the test often applied to determine the sufficiency of a complaint was set out by the United States Supreme Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), wherein the Court stated:
. . . In appraising the sufficiency of the Complaint we follow . . . the accepted rule that a Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
The Court adds that a complaint may not be dismissed because the plaintiff's claim does not support the legal theory he relies on since the court must determine if the allegations provide relief on any possible theory. See Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967).
II. Discussion
Plaintiff's claim seeks to prevent the collection of federal income taxes and to collect damages from an agency of the federal government resulting from the filing of a federal tax lien on his property. The Court finds that any judgment would "interfere with public administration" and "expend itself on the public treasury;" therefore, this action must be treated as an action against the United States. Dugan v. Rank, 372 U.S. 609, 620 (1963).
Under the doctrine of sovereign immunity, the United States is immune from suit except to the extent it has explicitly waived such immunity.United States v. Mitchell, 445 U.S. 535, 538 (1980). Where the United States has not waived immunity a court lacks subject matter jurisdiction over the case. United States v. Sherwood, 312 U.S. 584, 586 (1941). Regarding tax collection and assessments the United States has waived sovereign immunity in the limited circumstances outlined in 26 U.S.C. § 7421 (a).
Plaintiff asserts that this Court has subject matter jurisdiction over his Complaint pursuant to 26 U.S.C. § 7429 (b). Section 7429 is included in the waiver of immunity set forth in section 7421, however, section 7429 applies to tax assessments made under sections 6851(a), 6852(a), 6861(a) or 6862 of the Internal Revenue Code. 26 U.S.C. § 7429 (a). Section 7429 does not provide this Court jurisdiction to review tax liens brought pursuant to sections 6321, 6322 and 6323 of the Internal Revenue Code as Plaintiff seeks in his Complaint. Plaintiff has not alleged any other ground upon which this Court has subject matter jurisdiction over his Complaint. Moreover, the Court finds that the facts alleged in Plaintiff's Complaint do not support any other ground for subject matter jurisdiction. Thus, the Court lacks subject matter jurisdiction over the above-styled cause.
The Court notes that review of the filing of a federal tax lien is possible. Pursuant to 26 U.S.C. § 6320, the subject of a federal tax lien may seek administrative review. The Court also notes that Defendant acknowledges that judicial review of an administrative determination is then possible under the jurisdiction of the United States Tax Court. (Def. Mot. To Dismiss p. 5 n. 3.)
Accordingly, after due consideration, it is ORDERED AND ADJUDGED as follows:
1. Defendant, Commissioner of Internal Revenue's Motion To Dismiss (DE 9) be and the same is hereby GRANTED;
2. The Plaintiff, Elvin Guzman' s Complaint(DE 1) be and the same is hereby DISMISSED with prejudice; and
3. To the extent not otherwise disposed of herein, all pending Motions are hereby DENIED as moot.DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 17th day of October, 2002.