Oliver v. Shulman

MOTION to dismiss for lack of jurisdiction , MOTION to dismiss for failure to state a claim

M.D. Fla.January 27, 2017

14969228.1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION DARRYL OLIVER, ) ) Plaintiff, ) ) v. ) ) J. SHULMAN, ) ) Defendant. ) _______________________________________) Case No. 3:16-cv-1492-J-34MCR DISPOSITIVE MOTION TO DISMISS CASE The Defendant, J. Shulman, by and through undersigned counsel, moves to dismiss this case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or, in the alternative, failure to state a claim under Rule 12(b)(6), Federal Rules of Civil Procedure. This case and the related cases1 concern actions allegedly taken by current employees of the Internal Revenue Service during the performance of their official duties. As such, the proper party defendant in these cases is the United States. Because the Plaintiff, Darryl Oliver, has failed to identify a waiver of the United States’ sovereign immunity, his Complaints must be dismissed for lack of subject matter jurisdiction. 1 The Plaintiff has filed four related cases that are before the Court: Darryl Oliver v. Lisa Lyonais, Case No. 3:16-cv-1490, Darryl Oliver v. Mitzi Hovancik, Case No. 3:16-cv- 1491, Darryl Oliver v. J. Shulman, Case No. 3:16-cv-1492, and Darryl Oliver v. Kathy Harris, Case No. 3:16-cv-1555. Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 1 of 16 PageID 72 2 In the alternative, Mr. Oliver’s Complaints should be dismissed for failure to state a plausible claim against the Defendants. Even if the Court were to construe the Complaints as invoking a Bivens cause of action against these employees in their individual capacities, Bivens is not available in tax-related matters. Pursuant to Local Rule 3.01(a), a memorandum of law in support of this motion follows. MEMORANDUM OF LAW Background Darryl Oliver is a paid tax return preparer operating in the Jacksonville area. He filed suits against each of the Defendants before the Circuit Court for the Fourth Judicial Circuit for Duval County (“the Circuit Court”). The Defendants are all current employees of the Internal Revenue Service (“the Service”) tasked with investigating and assessing Mr. Oliver’s failure to comply with the revenue laws. These lawsuits concern the Defendants’ alleged conduct during the performance of their official duties, including what Mr. Oliver has generally labelled “audit fraud.” Mr. Oliver contends that these lawsuits are against the Defendants in their individual capacities-“not against the IRS” and “not [] Federal Case[s].” ECF No. 2.2 He seeks monetary damages against each Defendant in amounts ranging from $10,000 to $251,336.05, plus courts costs and fees.3 2 In the interest of brevity, where the document referenced has the same ECF number in all four cases, only one citation will be given. Where the document referenced has (continued...) Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 2 of 16 PageID 73 3 Procedural History Mr. Oliver filed suit against Lisa Lyonais, J. Shulman, and Mitzi Hovancik before the Circuit Court on August 5, 2016. He later filed suit against Kathy Harris before the Circuit Court on September 27, 2016. Service of the summonses and Complaints was attempted but not properly made on the Defendants. ECF No. 1. Service on the United States was required but never made. Id.; see Fed. R. Civ. P. 4(i) (2)-(3). Citing Sections 1346(a), 1346(b)(1), 1441(a), 1442(a)(1), and 1446(d) of Title 28, United States Code, counsel removed the suits against Lisa Lyonais, J. Shulman, and Mitzi Hovancik to this Court on December 2, and removed the suit against Kathy Harris to this Court on (…continued) different ECF numbers in any of the four cases, individual citations will be given and distinguished with a prefix representing the Defendant’s initials, e.g., (LL) ECF No. 1. 3 In recent years, Mr. Oliver has filed several seemingly related cases before the Court. See Darryl Oliver v. Department of the Treasury Commissioner of Internal Revenue, Case No. 3:15-cv-1344-J-25JRK (M.D. Fla.) (dismissed without prejudice on November 24, 2015); Darryl Oliver v. Department of the Treasury IRS, Small Business and Self- Employed, Case No. 3:14-cv-446-J-25MCR (M.D. Fla.) (dismissed for failure to prosecute on August 5, 2014); Florida Financial Solutions, Inc. v. Department of the Treasury IRS, Small Business and Self-Employed, Case No. 3:13-cv-00734-J-34TEM (M.D. Fla.) (dismissed without prejudice on July 30, 2013). He also filed a related petition before the United States Tax Court. Darryl Oliver v. Commissioner, Docket No. 7697-15 (T.C.) (dismissed on August 5, 2015). There is also a case currently pending between the United States and Mr. Oliver regarding official summonses issued by Lisa Lyonais. United States v. Darryl Oliver, Case 3:16-mc-00055-32PDB (M.D. Fla.). Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 3 of 16 PageID 74 4 December 20. ECF No. 1. Counsel for the Defendants moved for additional time to answer or otherwise respond to the Complaints and to consolidate these four related cases. (LL) ECF Nos. 4, 10; (JS) ECF Nos. 5, 14; (MH) ECF Nos. 4, 14; (KH) ECF Nos. 5, 8. Currently pending before the Court are those motions, Mr. Oliver’s motions to remand these cases to the Circuit Court, and the Defendants’ responses in opposition. (LL) ECF Nos. 11, 12; (JS) ECF Nos. 15, 16; (MH) ECF Nos. 15, 16; (KH) ECF Nos. 9, 16. Nature of the Plaintiff’s Claims In deference to Mr. Oliver’s pro se status, the Court should construe his pleadings liberally. Tannenbaum v. U.S., 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). But the Court may not “serve as de facto counsel for a party” or “rewrite an otherwise deficient pleading.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998)), cert. denied, 135 S. Ct. 759 (2014). Undersigned counsel liberally construes Mr. Oliver’s pleadings as alleging federal constitutional torts, specifically violations of the Fourth Amendment prohibition on unlawful searches and seizures. The alleged unlawful acts include gathering information about Mr. Oliver and his customers and summonsing information from third parties.4 These alleged acts took place during the 4 Lisa Lyonais allegedly “demanded information” from third parties, including “without Internal Revenue Authority, third party information from entities that were [potential (continued...) Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 4 of 16 PageID 75 5 course of the Service’s investigation and audit of Mr. Oliver’s return preparation business. The Complaints seek damages to recompense Mr. Oliver for the penalties that the Service ultimately proposed and/or assessed against him.5 (…continued) employers] for the Plaintiff,” (LL) ECF No. 2 ¶ 5, lied to Mr. Oliver about an investigation, and worked “with a group that were performing audit fraud,” id. ¶ 6. Jason Shulman allegedly “committed Audit fraud when he failed to put [calls from the Plaintiff] in his report to the IRS,” and told Mr. Oliver “your lying,” [sic] and “then fined the preparer and taxpayers.” (JS) ECF No. 2 ¶ 4. Mitzi Hovancik allegedly “committed Audit fraud when she failed to put [calls from the Plaintiff] in her report to the IRS,” (MH) ECF No. 2 ¶ 4, and “stated that the Plaintiff was endorsing government checks,” id. ¶ 5. Kathy Harris allegedly “conspired to commit audit fraud” by “having a meeting to plan a case against the Plaintiff,” and “manufactur[ing] the evidence by auditing Plaintiff’s clients” and approving audits based on charges that were “inapplicable” to the Plaintiff. (KH) ECF No. 2 ¶ 3. The Complaint characterizes this as “official misconduct” and misdemeanor “unlawful assemblies” punishable under Fla. Stat. §§ 775.082 or 083. Id. ¶¶ 4-6. 5 Counsel does not construe the Complaints as claims for refund of these penalties because Mr. Oliver did not allege that he first paid the penalties in question and filed administrative claims for refund. See 26 U.S.C. § 7422(a) (requirement to file an administrative claim for refund prior to filing a suit for refund); Flora v. United States, 357 U.S. 63, 68, 78 S. Ct. 1079, 1082 (1958) (requirement to fully pay tax liability before filing an administrative claim for refund and bringing a suit for refund), aff’d on reh'g, 362 U.S. 145, 80 S. Ct. 630 (1960). Failure to meet either requirement precludes the Court from hearing such a suit. See, e.g., Lawrence v. United States, 597 F. App'x 599, (continued...) Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 5 of 16 PageID 76 6 Legal Standard for Motions to Dismiss Because federal courts are courts of limited jurisdiction, the Court reviews its subject matter jurisdiction as a threshold inquiry in every case. Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir.1994) (“…a court must first determine whether it has proper subject matter jurisdiction before addressing the substantive issues.”). Even if no party raises the issue, the Court has “an independent obligation to determine whether subject matter jurisdiction exists.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006). If the Court finds it lacks jurisdiction, then its sole remaining duty is to state that it lacks jurisdiction and dismiss the case. See Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 94, 118 S. Ct. 1003, 1012 (1998); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[O]nce a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.”). A motion to dismiss a case for lack of subject matter jurisdiction may address the adequacy of the jurisdictional allegations on the face of the complaint-a “facial attack”-or contest the underlying facts-a “factual attack.” Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam)); see generally Fed. R. Civ. P. 12(b)(1). Here the Defendants mount a facial attack against Mr. Oliver’s Complaints. For purposes of a (…continued) 602 (11th Cir. 2015) (per curiam); Enax v. C.I.R., 476 F. App'x 857, 859 (11th Cir. 2012) (per curiam). As such, it would be futile to construe Mr. Oliver’s Complaints as suits for refund. Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 6 of 16 PageID 77 7 facial attack, the Court accepts the allegations in the complaint as true. Id. But those allegations must establish that subject matter jurisdiction exists to hear the plaintiff’s suit. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). In the case of a removal-as here-the Court may have removal jurisdiction under Title 28 of the United States Code, but nevertheless find that it lacks subject matter jurisdiction to hear the suit.6 A motion to dismiss for failure to state a claim also addresses the adequacy of the allegations in the complaint, questioning whether they contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); see generally Fed. R. Civ. P. 12(b)(6). Even pro se parties must adhere to these minimal pleading standards. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989), cert. denied 493 U.S. 863, 110 S. Ct. 180 (1989). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 The Eleventh Circuit has observed that “[r]emoval jurisdiction can be considered a ‘species’ of subject matter jurisdiction in that it defines a federal court's power to hear a particular kind of case-one that was originally brought in a state court.” Cogdell v. Wyeth, 366 F.3d 1245, 1248 (11th Cir. 2004). However, “they are not one and the same.” Id. at 1247. The Court has removal jurisdiction over these cases because they are brought against United States employees for acts taken pursuant to the federal revenue laws. 28 U.S.C. § 1442(a). The Court may or may not have subject matter jurisdiction, depending on whether or not Mr. Oliver has identified a waiver of the United States’ sovereign immunity. See infra Argument, Section I. Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 7 of 16 PageID 78 8 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). In ruling on a motion to dismiss for failure to state a claim, the Court takes the factual allegations set forth in the complaint as true. See id.; Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012). But the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1950; see also Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (per curiam). All reasonable inferences should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per curiam). “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief.” Id. If raised in the alternative-as here-the motion to dismiss for failure to state a claim should not be addressed unless the court first finds that it has subject matter jurisdiction to hear the Plaintiff's claims. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980), cert. denied, 449 U.S. 953, 101 S. Ct. 358 (1980). Argument I. The Court Lacks Subject Matter Jurisdiction to Hear Mr. Oliver’s Complaints, Fed R. Civ. P. 12(b)(1) Although Mr. Oliver protests that his suits are “not against the IRS,” his Complaints, on their faces, object to actions taken by the Defendants in their official capacities as employees of the Service and, by extension, the United States. As such, the United States is the proper party defendant in these cases. Dugan v. Rank, 372 U.S. 609, Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 8 of 16 PageID 79 9 620, 83 S. Ct. 999, 1006 (1963); Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995), aff’d, 84 F.3d 437 (11th Cir. 1996), cert. denied, 519 U.S. 1058 (1997). But Mr. Oliver’s Complaints cite no waiver of sovereign immunity-nor does one exist-that would permit the Court to hear his claims against the United states. Despite Mr. Oliver’s protestations, where “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” the suit is one against the sovereign. Dugan, 372 U.S. at 620, 83 S. Ct. at 1006. Mr. Oliver cannot avoid the bar of sovereign immunity simply by naming employees of the United States in their individual capacities. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The Court looks beyond the form of his Complaints to their substance. See id. Substantively, Mr. Oliver’s Complaints paint the lawful investigation and audit of a paid tax return preparer as a Fourth Amendment violation. See generally 26 U.S.C. § 6201. If successful, such suits-and their inevitable offspring-would grossly interfere with the public administration and enforcement of the revenue laws. Consequently, the proper party defendant here must be the United States. However, substituting the United States for the Defendants would be futile, because Congress has not waived the United States’ sovereign immunity to the constitutional torts Mr. Oliver has pleaded. It is well established that the United States is immune from suit unless it has explicitly consented to be sued. Congress defines the terms and conditions upon which the United States may be sued. United States v. Dalm, 494 U.S. 596, 608, 110 S. Ct. 1361, 1368 (1990); United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351 (1980). “Because the jurisdiction of the court is dependent upon such waiver or consent, Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 9 of 16 PageID 80 10 the terms must be strictly construed,” including any exceptions to the waiver. Stringer v. United States, 776 F.2d 274, 275 (11th Cir. 1985) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941)). The burden of identifying a waiver of sovereign immunity and thus establishing the Court’s subject matter jurisdiction to hear these suits rests with Mr. Oliver. Lawrence, 597 F. App'x at 602; Sweet Pea Marine, Ltd., 411 F.3d at 1247. Even liberally construed, Mr. Oliver’s Complaints make no reference to any waiver of the United States’ sovereign immunity to his claims. There is no implied cause of action against the United States under the Constitution for constitutional torts like those at issue here. United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir.1982); Cheves v. Dep't of Veterans Affairs, 227 F. Supp. 2d 1237, 1246 (M.D. Fla. 2002). And while several sections of the Internal Revenue Code may waive sovereign immunity for certain tax-related damages actions, none of those apply here. See 26 U.S.C. §§ 7431 (concerning wrongful disclosure or unauthorized inspection of tax return information); 7432 (concerning failure to release a recorded tax lien); 7433 (concerning the unauthorized collection of federal taxes).7 Nor does the Federal Tort Claims Act apply, 7 The revenue laws distinguish between the collection of tax (including penalties) and the investigation and assessment of the same. All of Mr. Oliver’s allegations concern the investigation and audit of his tax return preparation business, leading up to the assessment of penalties against him as a paid tax preparer. See Gandy Nursery, Inc. v. United States, 412 F.3d 602, 607 (5th Cir. 2005) (“§ 7433 is not the proper vehicle for recovering damages relating to an improper assessment of taxes.”); Shaw v. United States (continued...) Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 10 of 16 PageID 81 11 because Congress explicitly excepted from that waiver of sovereign immunity “[a]ny claim arising in respect of the assessment or collection of any tax.” 28 U.S.C. § 2680(c); see also Rosado, 885 F. Supp. at 1542. Mr. Oliver has failed to establish the Court’s subject matter jurisdiction to hear his Complaints, and they must be dismissed. II. Mr. Oliver’s Complaints Fail to State a Plausible Claim for Relief, Fed. R. Civ. P. 12(b)(6) In the alternative, Mr. Oliver’s Complaints fail to state a claim against the Defendants. First, even if we assume arguendo that Mr. Oliver brings these suits against the Defendants in their individual capacities under Bivens, he has failed to state a claim because in this Circuit Bivens is not available in tax-related matters. And second, Mr. Oliver’s allegations fail to satisfy the “plausibility” standard and, as such, fail to state a claim upon which relief may be granted. a. Bivens Does Not Extend to Tax Matters Because the Internal Revenue Code Provides Ample Remedies Even if we construe Mr. Oliver’s Complaints as pursuing the Defendants in their individual capacities under Bivens, the Court must dismiss the Complaints for failure to (…continued) 20 F.3d 182, 183-84 (5th Cir. 1994), cert. denied, 513 U.S. 1041 (1994); Lyerly v. United States, No. 2:15-CV-745-LSC, 2016 WL 6522356, at *5 (N.D. Ala. Nov. 3, 2016). Mr. Oliver also did not allege exhaustion of his administrative remedies under Section 7433. See Galvez v. I.R.S., 448 F. App'x 880, 887 (11th Cir. 2011). Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 11 of 16 PageID 82 12 state a claim because the judicially-created remedy under Bivens does not extend to tax matters. We have construed Mr. Oliver’s Complaints as alleging constitutional torts- specifically violations of the Fourth Amendment-committed by employees of the United States. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court recognized the existence of an implied right of action against federal agents in their individual capacities for certain constitutional violations. 403 U.S. 388, 91 S. Ct. 1999 (1971). Bivens does not permit claims against federal employees acting in their official capacity. Thibeaux v. U.S. Atty. Gen., 275 F. App'x 889, 892 (11th Cir. 2008). The Eleventh Circuit has not allowed claimants to pursue Bivens claims in tax- related matters, finding that the Internal Revenue Code provides ample redress for such claimants. Al-Sharif v. United States, 296 F. App'x 740, 741-42 (11th Cir. 2008) (citing Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S. Ct. 2460, 2467-68 (1988)); see also, e.g., Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 409-13 (4th Cir. 2004) (refusing to extend a Bivens remedy to disputes arising from the examination, assessment, or collection of taxes); Shreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000) (“[A] Bivens action should not be inferred to permit suits against IRS agents accused of violating a taxpayer's constitutional rights in the course of making a tax assessment.”). This Court has likewise barred the application of Bivens in tax-related suits. Lawrence v. Halker, No. 3:14-CV-1314-J-32, 2015 WL 5601957, at *1 (M.D. Fla. Sept. 22, 2015) (Corrigan, J.); Zajac v. Clark, No. 2:13-CV-714-FTM-29, 2015 WL 179333, at *5 (M.D. Fla. Jan. 14, 2015) (Steele, J.) (citing cases); Brown v. United States, No. 508- Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 12 of 16 PageID 83 13 CV-118-OC-10GRJ, 2009 WL 2044684, at *6 (M.D. Fla. July 10, 2009) (Hodges, J.), aff'd, 439 F. App'x 772 (11th Cir. 2011). The instant suits are no different, and they should be dismissed for failure to state a claim upon which relief may be granted. b. Mr. Oliver’s Allegations Fail to Meet the Plausibility Standard Mr. Oliver’s Complaints also fail to state any claim against the Defendants that is plausible on its face. Mr. Oliver bases his central allegations of “audit fraud” on actions that the Service is generally permitted to take when investigating and auditing someone suspected of violating the revenue laws. For instance, the Service is permitted to summons information from the taxpayer or third parties in this context under Section 7602. See generally 26 U.S.C. §§ 7601-7612. And when auditing a paid tax return preparer, the Service may review the returns and return information of his customers. 26 U.S.C. §§ 6103(h)(1); 6103(p). These allegations fail to state a plausible claim for relief because the Court cannot reasonably infer from these allegations-if taken as true-that any laws were violated. Mr. Oliver’s remaining allegations are so vague as to be implausible. These include his accusations that the Defendants failed to note communications that Mr. Oliver allegedly had with unnamed persons at the Service in “report[s] to the IRS.” (JS) ECF No. 2 ¶ 4; (MH) ECF No. 2 ¶ 4. And his conclusory allegations of “official misconduct” or the commission of “unlawful assemblies” as a second degree misdemeanor under Florida law. (KH) ECF No. 2 ¶¶ 4-6. Or his accusation that one of the Defendants lied to Mr. Oliver about an ongoing investigation. (LL) ECF No. 2 ¶ 6. The Complaints offer Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 13 of 16 PageID 84 14 little to no factual support for these allegations, and also fail to identify any laws that were violated by the alleged conduct. To state a plausible claim for relief, Mr. Oliver must offer sufficient facts to support the reasonable inference that the Defendants are liable for the misconduct alleged. He has patently failed to do so. “The plausibility standard… asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)). Mr. Oliver’s Complaints fail state a plausible claim for relief against the Defendants, and should be dismissed. CONCLUSION For the reasons stated above, the Defendant requests that the Court dismiss this case for lack of subject matter jurisdiction, or in the alternative, for failure to state a plausible claim for relief. Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 14 of 16 PageID 85 15 Dated this 27th day of January, 2017. Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General /s/ Allison C. Carroll ALLISON C. CARROLL Virginia Bar No. 81948 Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 14198 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 514-6472 Facsimile: (202) 514-9868 Email: Allison.C.Carroll@usdoj.gov Counsel for the Defendant Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 15 of 16 PageID 86 14969228.1 CERTIFICATE OF SERVICE I certify that on this 27th day of January, 2017, I electronically filed the foregoing Motion with the Clerk of Court using the CM/ECF system, which will send notification of such filing all registered users in this case. I further certify that on the same day I caused a copy of the foregoing response to be sent via first-class U.S. Mail and email, as previously agreed, to the following: Darryl Oliver P.O. Box 90011 Washington, DC 20090 Darryl.oliver@hotmail.com /s/ Allison C. Carroll ALLISON C. CARROLL Trial Attorney United States Department of Justice, Tax Division Case 3:16-cv-01492-MMH-MCR Document 17 Filed 01/27/17 Page 16 of 16 PageID 87