Leon, 51 F.Supp.3d at 1298. Case 1:16-cv-21539-UU Document 21 Entered on FLSD Docket 08/12/2016 Page 8 of 10 9 the amount paid to the taxpayer, workers had a valid claim under 26 U.S.C. § 7434). As such, Count II of Plaintiff’s claim should not be dismissed.

Thtype of type of “information return,” the place of filing it, and the person filing it are all significant to coverage under the statute. Raley v. Bank of Am., N.A., 2014 U.S. Dist. LEXIS 164873 (N.D. Al. 2014) (claim for filing fraudulent tax return dismissed where IRS Form 1099-C was not an information return under the statute); Leon v. Tapas & Tintos, Inc., 51 F.Supp.3d 1290, 1298 (S.D. Fla. 2014) (motion to dismiss claim under 26 U.S.C. §7434 granted where a return was issued but defendant was not a “filer” of the return, “let alone a knowing filer of a fraudulent form”); Almeira v. GB House, LLC, 2014 U.S.Dist. LEXIS 47705, *4 n.2 (M.D. Fla. (2014) (“Section 7434 creates a private cause of action allow in a person to bring a civil action for damages against a company who willfully files a fraudulent information tax return with the IRS”). The W-2 Form allegedly forming the basis of Count II are not filed with the IRS by statute.

See Smith Order at 5 (RJN, Ex. 7) (citing Ayres v. Gen. Motors Corp., 234 F.3d 514, 520-25 (11th Cir. 2000); Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1227 (D.C. Cir. 1991); Gifford v. Meda, No. 09-cv-13486, 2010 WL 1875096, at *10-16 (E.D. Mich. May 10, 2010) (dismissing claims because the comprehensive 6 I.R.C. § 7434(f) defines “information return” for the civil liability provision by reference to I.R.C. § 6724(d)(1)(A), which lists nine specific information returns but omits reference to I.R.C. § 6050H and Form 1098 mortgage interest reporting. Case 8:16-cv-01924-AG-KES Document 18 Filed 12/05/16 Page 25 of 38 Page ID #:102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - NOTICE OF MOTION AND MOTION TO DISMISS OR STAY LA 52020236 Case No. 8:16-cv-01924-AG (KESx) S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 administrative scheme embodied in the I.R.C. and the Social Security Act gave the IRS exclusive jurisdiction over RICO claims premised on employee misclassification); McElwee v. Wharton, 19 F. Supp. 2d 766, 771 (W.D. Mich. 1998)); see also Loeffler v. Target Corp., 58 Cal. 4th 1081, 1132 (2014).

Based on the foregoing, even if Cross-Defendants were not protected by statutory immunity provided by 26 U.S.C. §3403, and §1461, discussed in detail in Cross-Defendants’ Opposition to HOH’s Motion for Preliminary Injunction (See Dkt. 137 at 4:19-5:10), HOH cannot establish willfulness as he must to establish liability pursuant to 26 U.S.C. §7434(a). Accordingly, the Court should deny HOH’s motion to Vacate Scheduling Order and Stay Action.

289. Due to Defendants’ violations of 26 USC §7434, Plaintiffs are entitled to recover from Defendants, jointly and severally: (1) any actual damages sustained by the plaintiffs as a proximate result of the filing of the fraudulent information return (including any costs attributable to resolving deficiencies asserted as a result of such a filing), (2) the cost of the action, and (3) in the court’s discretion, reasonable attorneys’ fees. COUNT XVII.