Lopez v. Internal Revenue Service et al

MOTION to Dismiss for Lack of Jurisdiction

D. Conn.June 19, 2017

Oral Argument Not Requested 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ELBA M. LOPEZ, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE, ) JOHN KOSKINEN, COMMISSIONER OF THE ) IRS, ) SARAH DAVIDSON, IRS REVENUE OFFICER, ) BANK OF AMERICA, ) BAYVIEW LOAN SERVICING, LLC, ) and VALMAR CARE SERVICES, LLC, ) ) Defendants. ) ______________________________________ ) Case No. 3:17-CV-00771 (AWT) DEFENDANT UNITED STATES’ MOTION TO DISMISS Defendant United States of America, improperly named and sued as “Internal Revenue Service,” “John Koskinen, Commissioner of the IRS,” and “Sarah Davidson, IRS Revenue Officer,” moves this Court for an order dismissing Plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(1),12(b)(2), and 12(b)(6). As explained more fully in the memorandum of law accompanying this motion, Plaintiff’s claim for an injunction of IRS collection activities is barred by the doctrine of res judicata, having been litigated to a final determination in Lopez v. “Director” of the Internal Revenue Service’s (IRS) Ogden Utah Office, Case No. 3:16-cv-00600 (VAB), and thus fails to state a claim on which relief may be granted. Even if Plaintiff’s claim is not barred by res judicata, it is barred by the Anti-Injunction Act and, thus, by the United States’ sovereign immunity. Case 3:17-cv-00771-AWT Document 15 Filed 06/19/17 Page 1 of 3 2 The United States notes that this is the second time that Plaintiff has brought a frivolous claim to enjoin IRS collection activities. The Court should inform Plaintiff that, if she continues to engage in meritless, vexatious litigation, she could be subject to monetary sanctions. WHEREFORE, Defendant United States requests that the Complaint be dismissed with prejudice. Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General U.S. Department of Justice, Tax Division /s/ Bradley A. Sarnell BRADLEY A. SARNELL Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 55 Washington, D.C. 20044 202-307-1038 (v) 202-514-5238 (f) Bradley.A.Sarnell@usdoj.gov Case 3:17-cv-00771-AWT Document 15 Filed 06/19/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2017, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all electronic filers, and I hereby certify that on the same date I have mailed the document by United States Postal Service to the following non-CM/ECF participants: Elba M. Lopez 1224 Pembroke Street Bridgeport, CT 06608 /s/ Bradley A. Sarnell BRADLEY A. SARNELL Trial Attorney United States Department of Justice, Tax Division Case 3:17-cv-00771-AWT Document 15 Filed 06/19/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ELBA M. LOPEZ, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE; ) JOHN KOSKINEN, COMMISSIONER OF ) THE IRS; ) SARAH DAVIDSON, IRS REVENUE ) OFFICER; ) BANK OF AMERICA; ) BAYVIEW LOAN SERVICING, LLC; ) and VALMAR CARE SERVICES, LLC, ) ) Defendants. ) ______________________________________ ) Case No. 3:17-CV-00771 (AWT) DEFENDANT UNITED STATES OF AMERICA’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS Defendant United States of America, improperly named and sued as “Internal Revenue Service,” “John Koskinen, Commissioner of the IRS,” and “Sarah Davidson, IRS Revenue Officer,” submits this memorandum in support of its Motion to Dismiss. Preliminarily, the United States notes that it, rather than the Internal Revenue Service or either of the named employee defendants, is the only proper Defendant to this suit, which is seeking an injunction against further IRS collection action. See Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a suit is against the sovereign if […] the effect of the judgment would be to restrain the Government from acting, or to compel it to act.”) (internal quotation marks omitted)). See also Mele v. Hill Health Center, 609 F. Supp. 2d 248, 258 (D. Conn. 2009) (“An action against a federal agency or federal officers in their official capacities is treated as a suit against the United States.”). The claim against the IRS is undoubtedly a suit Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 1 of 11 2 against the United States. As to the named employee defendants, Plaintiff cannot obtain the injunctive relief she seeks from John Koskinen or Sarah Davidson in their individual capacities. The Court should therefore dismiss both the IRS and also the federal employees John Koskinen and Sarah Davidson as Defendants, as no relief is sought against them individually, and substitute the United States as Defendant in their place. Background Plaintiff previously filed a case in this Court that arose out of the same facts and circumstances as the present case. In her first case, Lopez v. “Director” of the Internal Revenue Service’s (IRS) Ogden Utah Office, et al., Case No. 3:16-cv-00600 (VAB) (D. Conn. filed April 18, 2016) (Lopez I),1 Lopez sought damages under 42 U.S.C. § 1983, 18 U.S.C. § 1986, and for a number of state law torts. In addition, she sought a declaratory judgment and an injunction against the IRS’s collection activities. The Court (Bolden, J.) dismissed plaintiff’s action with prejudice on January 23, 2017, noting that the United States had not waived its sovereign immunity for any of Plaintiff’s damage claims and that her equitable claims were barred by the Declaratory Judgment Act and the Anti-Injunction Act, respectively. Lopez I, 2017 WL 337978 (D. Conn. Jan 23, 2017). The facts underlying both suits stem from the IRS’s issuance to Plaintiff, in September 2015, of a tax refund check in the amount of $355,658.48. The IRS later determined that the refund had been issued erroneously. Lopez I (Doc. 18-2, ¶ 2.) On April 7, 2016, the IRS mailed Plaintiff an IRS Form 3552, Notice of Tax Due on Federal Tax Return, which reflected that Plaintiff Lopez had an unpaid tax liability of $356,613.00, a copy of which is attached to 1 The United States requests that the Court take judicial notice of the records of Lopez v. “Director” of the Internal Revenue Service’s (IRS) Ogden Utah Office, Case No. 3:16-cv-00600 (VAB). Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 2 of 11 3 Plaintiff’s amended complaint in her previous action. Lopez I (Doc. 9, pp 26-27; Doc. 18-2, ¶ 3). The Form 3552 also reflected that Plaintiff Lopez had been assessed an “Accuracy-Related Penalty” pursuant to 26 U.S.C. §6662, in the amount of $71,332.60. Lopez I, (Doc. 18-2, ¶ 3). Argument I. Plaintiff’s claim is barred by res judicata. Plaintiff’s claim in this second suit for an injunction against IRS collection action is barred by the doctrine of res judicata and thus fails to state a claim on which relief may be granted. “[T]he doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994) (internal quotation marks omitted). “Thus, the doctrine bars later litigation if [an] earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action.” EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007) (internal quotation marks omitted). Here, Plaintiff filed a previous complaint against the United States seeking, inter alia, an injunction against certain collection activities by the IRS. See Lopez I, 2017 WL 337978, at *9. In his order dismissing Plaintiff’s complaint with prejudice, Judge Victor A. Bolden of this district held that “[t]o the extent that [Plaintiff] seeks injunctive relief against the collection of the tax deficiency that the IRS Defendants have assessed against her, all of her claims are barred because ‘[i]n the context of tax assessments and collections the government's sovereign immunity has been codified by the Anti-Injunction Act’ or 26 U.S.C. § 7421(a). Lopez I, 2017 WL 337978, at *9. Judge Bolden also held that the exception to the Anti-Injunction Act that Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 3 of 11 4 permits suits where it is clear that under no circumstances could the United States ultimately prevail on the tax liability did not apply. Id. A dismissal with prejudice operates as a final judgment on the merits for purposes of res judicata. See, e.g., Samuels v. Northern Telecom, Inc., 942 F.2d 834, 836 (2d Cir. 1991). There is no dispute that the United States District Court for the District of Connecticut was a court of competent jurisdiction with regard to the claims raised in Lopez I—indeed, Plaintiff has brought the instant case in the same district. Lopez I was brought by the same Plaintiff and, because the suit was brought against IRS employees in their official capacities, the United States was the Defendant.2 Mele, 609 F. Supp. 2d at 258. Finally, the cause of action, a claim for an injunction against IRS collection action, was the same. Lopez I, 2017 WL 337978, at *9. Thus, Plaintiff’s claim for an injunction against IRS collection activity is barred by the doctrine of res judicata. II. Plaintiff’s claim is barred by the United States’ sovereign immunity. Even if Plaintiff’s request is not barred by res judicata, Plaintiff’s request for a preliminary injunction is barred by the Anti-Injunction Act, and there is no waiver of sovereign immunity for such claim. As a sovereign, the United States may not be sued without its consent, and the terms of its consent define the Court’s jurisdiction. See United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Sherwood, 312 U.S. 584, 586-587 (1941). Waivers of sovereign immunity must be unequivocally expressed and are “strictly construed” in favor of the government. See United States v. Idaho, 508 U.S. 1, 6-7 (1993); United States v. Nordic Village, 2 Insofar as a number of the counts of the complaint in Lopez I were tort claims against the IRS employees in their individual capacities, the United States submitted a Certification of Scope of Employment Pursuant to 42 U.S.C. § 233(c) signed by Assistant United States Attorney John B. Hughes, attesting that the named employees were acting in the scope of their employment during the incidents underlying the complaint and thus, pursuant to 28 U.S.C. § 2679, the United States was substituted as a Defendant in place of the individual employees. Lopez I (Doc. 18-3.) Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 4 of 11 5 Inc., 503 U.S. 30, 34 (1992); United States v. Mitchell, 445 U.S. 535, 538 (1980). Where, by statute, the sovereign consents to be sued, the suit may be maintained only if brought in compliance with the exact terms of the statute. Sherwood, 312 U.S. at 590. Without a waiver of sovereign immunity, an action against the United States must be dismissed. See Nordic Village, 503 U.S. at 34. A party who sues the government bears the burden of demonstrating that jurisdiction exists. See Mitchell, 445 U.S. at 538. A motion to dismiss for lack of jurisdiction can be based on a facial attack upon the complaint or a factual attack. The United States of America facially and factually attacks the Plaintiff’s complaint and moves to dismiss this action for lack of jurisdiction. A facial attack “merely questions the sufficiency of the pleadings” and the court “takes the allegations in the complaint as true and draws all inferences in favor of the non-movant.” Russo v. City of Hartford, 184 F. Supp. 2d 169, 178 (D. Conn. 2002). Conversely, under a factual attack, the court “must determine whether the factual predicate for subject matter jurisdiction exists. Therefore, there is no presumptive truthfulness to the facts alleged in the complaint, and the court may consider evidentiary matter presented in an affidavit or otherwise in addition to the complaint.” Id. (internal citations omitted). The presentation of extrinsic evidence on a motion to dismiss for lack of jurisdiction does not convert the motion into a motion for summary judgment under Rule 56. See Kim v. Ashcroft, 340 F. Supp. 2d 384, 387 (S.D.N.Y. 2004). The Anti-Injunction Act states, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. § 7421(a). “The purpose of the Act is to protect ‘the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, and to require that the legal right to the disputed sums be determined in a suit for refund.’” Randell v. United Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 5 of 11 6 States, 64 F.3d 101, 106 (2d Cir.1995) (quoting Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974) (additional quotation marks omitted)). “The object of § 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.” Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 5 (1962). “[U]nder the Tax Anti-Injunction Act, a plaintiff cannot even seek an injunction preventing the IRS from investigating tax liabilities in an allegedly discriminatory or harassing fashion.” Clavizzao v. United States, 706 F. Supp. 2d 342, 346 (S.D.N.Y. 2009) (citing Black v. United States, 534 F.2d 524, 526 (2d Cir. 1976)). Here, the only relief Plaintiff seeks is an injunction preventing the United States from levying to collect her liabilities, which is exactly the type of suit barred by the Anti-Injunction Act. Plaintiff also does not meet the non-statutory exception to the Anti-Injunction Act.3 “To qualify for this exception, a taxpayer must show (1) that ‘it is clear that under no circumstances could the Government ultimately prevail’ on the tax liability and (2) that ‘equity jurisdiction otherwise exists’ because the taxpayer would suffer irreparable injury if collection were effected. Randell v. United States, 64 F.3d 101, 106-07 (2d Cir. 1995) (quoting Enochs, 370 U.S. at 7). In determining whether the government could ultimately prevail, the court must “take the view of the facts that is most liberal to the Commissioner, not to the taxpayer seeking injunctive relief.” Laino v. United States, 633 F.2d 626, 632 (2d Cir.1980). Plaintiff has made no factual showing that the United States’ assessment was incorrect or that the United States will not ultimately prevail on the tax liability. Instead, Plaintiff makes a series of baseless arguments against the validity of the assessments and the levy. First, she 3 There are a number of statutory exceptions set forth in the Anti-Injunction Act, but none of them are applicable here. 26 U.S.C. § 7421(a). Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 6 of 11 7 argues that the IRS’s assessment is invalid because the IRS did not “file” a number of forms, including IRS Form 23C,4 IRS Form 4340, and IRS Form 2666. Plaintiff does not specify where she believes the IRS is required to file such forms and, in any event, no such filing is required. The IRS is required by law to “record” a taxpayer’s liability, but Congress has provided the agency wide latitude as to how that is to be done (“in accordance with rules or regulations prescribed by the Secretary [of the Treasury].”) 26 U.S.C. § 6203. No statute or regulation requires that an assessment be recorded on any specific form. Moreover, “[a] presumption of regularity attaches to official governmental actions. In the absence of clear proof to the contrary, the court must presume that the IRS complied with the statutory prerequisites to tax assessment and collection.” Harlan v. United States, No. 89 CIV. 6951(KMW), 1991 WL 35858, at *2 (S.D.N.Y. Mar. 8, 1991). The IRS sent, and Plaintiff admits she received, an IRS Form 3552, Notice of Tax Due on Federal Tax Return, which reflected that Plaintiff Lopez had an unpaid tax liability of $356,613.00. Lopez I (Doc. 9, pp 26-27).5 Given the presumption of regularity afforded to IRS actions in the absence of clear proof to the contrary—and Plaintiff has provided no evidence beyond her own self-serving statements—the Court must assume that, for the IRS to have issued a notice that Plaintiff had a tax liability, the proper steps for a tax assessment were taken, including the preparation of a record of assessment. See Brewer v. United States, 764 F. Supp. 309, 312 (S.D.N.Y. 1991) (holding that the judicially created exception to the Anti- Injunction Act is inapplicable because, in the absence of clear proof “this court is obligated to 4 Plaintiff also argues that “no valid summary record of assessment” was filed, but this is the same thing as IRS Form 23-C, which is entitled “Assessment Certificate-Summary Record of Assessment.” 5 The Second Circuit has held that mailing IRS Form 3552 is sufficient notice of a deficiency and demand for payment. Schiff v. United States, 919 F.2d 830, 833 (2d. Cir. 1990). Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 7 of 11 8 presume that the IRS complied with the statutory prerequisites to tax assessments.”) Given that the Court must take the view of the facts most liberal to the United States in determining whether the exception applies, the Court cannot find that under no circumstances could the United States prevail on the liability, and the exception to the Anti-Injunction Act is inapplicable here. Plaintiff’s remaining claims regarding the filing of forms are no more meritorious. IRS Form 23C is no longer in general use,6 but prior to the IRS’s transition to computerized recordkeeping, the Form 23C was the form predominantly used as a record of assessment, and the date on which it was “signed” was considered the date of assessment. See e.g., United States v. Kyser, No. 95-CV-0225E(H), 1996 WL 528534, at *2 n.2 (W.D.N.Y. Sept. 11, 1996). Plaintiff’s argument that the IRS’s assessment or collection is invalid because she has not been provided with a copy of Form 23C has previously been found not to support a claim under the Anti-Injunction Act. Billheimer v. United States, No. C-3-02-559, 2003 WL 22327959, at *2 n.3 (S.D. Ohio Aug. 21, 2003) (taxpayers’ arguments, including that IRS collection efforts were illegal because the government did not provide a Form 23C, did not “remotely suggest[] that the Government has waived its sovereign immunity or that the Anti-Injunction Act fails to bar the Plaintiffs’ requested remedy.”) Moreover, the IRS has determined the argument “that the Service must provide a taxpayer with a summary record of assessment, such as a Form 23C, before collection” to be a frivolous position. Rev. Rul. 2007-21, 2007-1 C.B. 865. IRS Form 4340 is a certified copy of assessments and payments for a particular tax type and tax year, drawing on information contained in IRS databases. See Brewer, 746 F. Supp. at 6 The IRS has moved to using RACS Report 006 as the summary record of assessment in most cases. See Rev. Rul. 2007-21, 2007 1 C.B. 865. Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 8 of 11 9 318. It is a document that can be used as proof that assessments have been made, but is not a prerequisite to the validity of an assessment. Finally, there is no IRS Form 2666, “Certificate of Transcript.”7 Insofar as Plaintiff is referring to IRS Form 2866, “Certificate of Official Record,” such forms are used to self-authenticate IRS records, and are not required to be created during the assessment process. See United States v. Jimenez, 513 F.3d 62, 79 (3rd Cir. 2008). Plaintiff also argues that the assessments are invalid because the IRS did not file its liens and/or levies with a Court. Plaintiff’s argument is meritless. Even assuming, arguendo, the IRS did not comply with the administrative requirements for collection action, that failure would not invalidate the underlying assessments.8 See In re Larsen, 232 B.R. 482, 484 (Bankr. D. Wyo. 1998) (“Even if the debtors were to establish irregularities in the administrative process, which they have not, such is not equivalent to a violation of due process, and does not invalidate the tax nor halt the collection process.”) In any event, the United States is not required to obtain a court order to collect taxes. See Celauro v. U.S. I.R.S., 371 F. Supp. 2d 219, 223 (E.D.N.Y. 2005) (“The levy is a provisional remedy and generally does not require any judicial intervention.” (internal quotation marks omitted)). The United States further notes that Plaintiff has an adequate remedy at law—she may pay the liabilities assessed, file an administrative claim for refund with the IRS and, if such claim is denied, file a refund suit in district court. See Celauro v. U.S. I.R.S., 411 F. Supp. 2d 257, 268- 7 Plaintiff also asserts that assessments must be “pursuant to IRM-HB1272.” It is unclear to what Plaintiff is referring and it does not appear that any such requirement exists. 8 Plaintiff’s reliance on Hough v. City of North Adams, 82 N.E. 46 (Mass. 1907), a case involving state property taxes, rather than federal taxes, is misplaced. Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 9 of 11 10 69 (E.D.N.Y. 2006).9 In addition, Plaintiff admits that she received from the IRS a “Final Notice of Intent to Levy and Notice of Your Right to a Hearing,” which sets forth a taxpayer’s right to an administrative Collection Due Process Hearing in which she could have challenged the IRS’s procedures in issuing the notices of levy. Whether these would be Plaintiff’s preferred remedies is irrelevant. See Black, 534 F.2d at 527 (“Having chosen to by-pass these available and adequate legal remedies, appellants cannot now come before this court in search of equitable relief.”). As Plaintiff has pointed to no applicable waiver of sovereign immunity, the Court lacks jurisdiction over her claim. Conclusion For the reasons stated above, the Court should dismiss Plaintiff’s claim with prejudice. The United States notes that this is the second time that Plaintiff has brought a frivolous claim to enjoin IRS collection activities. The United States requests that the Court inform Plaintiff that, if she continues to engage in meritless, vexatious litigation, she could be subject to monetary sanctions. Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General U.S. Department of Justice, Tax Division /s/ Bradley A. Sarnell BRADLEY A. SARNELL Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 55 Washington, D.C. 20044 202-307-1038 (v)/202-514-5238 (f) Bradley.A.Sarnell@usdoj.gov 9 Insofar as Plaintiff is seeking to bar the IRS from using allegedly improper collection tactics, her remedy is a suit under 26 U.S.C. § 7433, which Congress has provided as the “exclusive remedy for recovering damages resulting from such actions.” 26 U.S.C. § 7433. Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2017, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all ECF filers, and I hereby certify that on the same date I have mailed the document by United States Postal Service to the following non-CM/ECF participants Elba Lopez 1224 Pembroke Street Bridgeport, CT 06608 /s/Bradley A. Sarnell BRADLEY A. SARNELL Trial Attorney United States Department of Justice, Tax Division Case 3:17-cv-00771-AWT Document 15-1 Filed 06/19/17 Page 11 of 11 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ELBA M. LOPEZ, ) ) Plaintiff, ) ) v. ) ) INTERNAL REVENUE SERVICE; ) JOHN KOSKINEN, COMMISSIONER OF ) THE IRS; ) SARAH DAVIDSON, IRS REVENUE ) OFFICER; ) BANK OF AMERICA; ) BAYVIEW LOAN SERVICING, LLC; ) and VALMAR CARE SERVICES, LLC, ) ) Defendants. ) ______________________________________ ) Case No. 3:17-CV-00771 (AWT) NOTICE TO PRO SE LITIGANT OPPOSING MOTION TO DISMISS AS REQUIRED BY LOCAL RULE 12(A) The purpose of this notice, which is required by the Court, is to notify you that the defendant has filed a motion to dismiss asking the Court to dismiss all or some of your claims without a trial. The defendant argues that there is no need to proceed with these claims because they are subject to dismissal for the reasons stated in the motion. THE DEFENDANT’S MOTION MAY BE GRANTED AND YOUR CLAIMS MAY BE DISMISSED WITHOUT FURTHER NOTICE IF YOU DO NOT FILE OPPOSITION PAPERS AS REQUIRED BY RULE 12 OF THE FEDERAL RULES OF CIVIL PROCEDURE AND IF THE DEFENDANT'S MOTION SHOWS THAT THE DEFENDANT IS ENTITLED TO DISMISSAL OF ANY OR ALL OF YOUR CLAIMS. COPIES OF RELEVANT RULES ARE ATTACHED TO THIS NOTICE, AND YOU SHOULD REVIEW THEM VERY CAREFULLY. Case 3:17-cv-00771-AWT Document 15-2 Filed 06/19/17 Page 1 of 3 2 The papers you file must show that (1) you disagree with the defendant’s arguments for dismissal, and (2) that the allegations of the complaint are sufficient to allow this case to proceed. If you would like to amend your complaint under Rule 15 of the Federal Rules of Civil Procedure in order to respond to the alleged deficiencies in your complaint asserted by the defendant, you may promptly file a motion to amend your complaint, but you must attach your proposed amended complaint. It is very important that you read the defendant’s motion and memorandum of law to see if you agree or disagree with the defendant’s motion. It is also very important that you review the enclosed copy of Rule 12 of the Federal Rules and Local Rule 7 carefully. You must file your opposition papers (and any motion to amend) with the Clerk of the Court and mail a copy to the defendant’s counsel within 21 days of the filing of the defendant’s motion with the Clerk of the Court. If you require additional time to respond to the motion to dismiss, you must file a motion for extension of time, providing the Court with good reasons for the extension and with the amount of additional time you require. Case 3:17-cv-00771-AWT Document 15-2 Filed 06/19/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2017, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all electronic filers, and I hereby certify that on the same date I have mailed the document by United States Postal Service to the following non-CM/ECF participants: Elba M. Lopez 1224 Pembroke Street Bridgeport, CT 06608 /s/ Bradley A. Sarnell BRADLEY A. SARNELL Trial Attorney United States Department of Justice, Tax Division Case 3:17-cv-00771-AWT Document 15-2 Filed 06/19/17 Page 3 of 3