Buser v. United States

85 Fed. Cl. 248, 2009 U.S. Claims LEXIS 4, 103 A.F.T.R.2d (RIA) 497, 2009 WL 105626
CourtUnited States Court of Federal Claims
DecidedJanuary 12, 2009
DocketNo. 08-587 T
StatusPublished
Cited by30 cases

This text of 85 Fed. Cl. 248 (Buser v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buser v. United States, 85 Fed. Cl. 248, 2009 U.S. Claims LEXIS 4, 103 A.F.T.R.2d (RIA) 497, 2009 WL 105626 (uscfc 2009).

Opinion

OPINION AND ORDER

SWEENEY, Judge.

Before the court are Defendant’s Motion of the United States to Dismiss the Complaint and Brief in Support Thereof, filed pursuant to Rule 12(b)(1) or, alternatively, Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), [251]*251Plaintiff’s Application to Proceed In Forma Pauperis, and plaintiffs request for a stay of garnishment. In this action, plaintiff seeks a judgment of $32,133.18, which he alleges is the amount wrongfully garnished from his wages by the Internal Revenue Service (“IRS”). Although the court afforded plaintiff ample time—over fifty days—to respond to defendant’s motion, he has failed to do so. The court determines that there is no reason to further delay its ruling. For the reasons stated below, the court grants plaintiffs application to proceed in forma pauperis, denies plaintiffs request for a stay of garnishment, and grants defendant’s motion to dismiss.

I. BACKGROUND1

On January 27,1999, plaintiff, Richard Roy Buser, and his wife filed a joint tax return for the 1997 tax year. Mot. United States Dismiss Compl. & Br. Supp. Thereof (“Def.’s Mot.”) 4; Def.’s Ex. 1 at 2. Plaintiff and his wife filed a joint tax return for the 1998 tax year' on January 3, 2000.2 Def.’s Mot. 4; Def.’s Ex. 2 at 9. The IRS, on November 21, 2001, issued a Notice of Deficiency (“notice”) to plaintiff and his wife for the 1997 and 1998 tax years. Def.’s Ex. 3. The November 21, 2001 notice indicated a deficiency of $24,198.00 and penalties of $5,847.00 for the 1997 tax year, as well as a deficiency of $13,843.00 and penalties of $2,768.50 for the 1998 tax year. Id. at 14. On March 4, 2002, plaintiff and his wife petitioned the United States Tax Court (“Tax Court”), challenging the November 21, 2001 notice and alleging that the IRS (1) erroneously denied their Schedule C Expenses for 1997 and 1998, (2) erroneously denied their Schedule C Cost of Goods Sold for 1997, (3) incorrectly calculated their interest income, and (4) erroneously imposed upon them penalties for then1 failure to file tax returns. Def.’s Ex. 4. The parties ultimately reached an agreement regarding the 1997 and 1998 tax years on May 6, 2003, the date on which the Tax Court entered a stipulated final decision.3 Def.’s Ex. 5.

According to each IRS Certificate of Assessments, Payments and Other Specified Matters (“Certificate of Assessments and Payments”) for plaintiffs tax, years 1999, 2000, and 2001, plaintiff did not file a tax return for those years. Def.’s Exs. 6-8. On April 21, 2003, the IRS generated a substitute return for plaintiffs 1999 and 2000 tax years. See Def.’s Ex. 6 at 28 (1999 tax year); Def.’s Ex. 7 at 34 (2000 tax year). On March 1, 2004, the IRS assessed a tax of $16,207.00 for tax year 1999, Def.’s Ex. 6 at 28, and assessed a tax of $41,165.00 for tax year 2000, Def.’s Ex. 7 at 34. The IRS also generated a substitute return for plaintiffs 2001 tax year on November 3, 2003, and assessed a tax of $35,293.00 on August 2, 2004. Def.’s Ex. 8 at 38.

The IRS issued an Intent to Levy Collection Due Process Notice to plaintiff for the 1997-2001 tax years on November 27, 2006. See Def.’s Ex. 1 at 3; Def.’s Ex. 6 at 29; Def.’s Ex. 7 at 35; Def.’s Ex. 8 at 39. On April 9, 2007, the IRS issued a Notice of Levy on Wages, Salary, and Other Income (“Notice of Levy”) against plaintiffs wages to his employer, Microchip Technology. Compl. If 2; Def.’s Mot. 5; Compl. Ex. A. The Notice of Levy was signed by IRS Revenue Officer J. Jones and indicated that the levy, which applied to unpaid assessments for and statutory additions to tax years 1997 through 2001, totaled $211,842.68. Compl. Ex. A. On or about May 15, 2007, Microchip Technology began making payments to the IRS by garnishing plaintiffs wages. Def.’s Mot. 5; Def.’s Ex. 1 at 3.

[252]*252Plaintiff alleges that by June 29, 2008, the IRS had collected $32,133.18 from his 2007 and 2008 Microchip Technology paychecks. Compl. Prayer for Relief; Compl. Ex. F. The IRS applied these payments to satisfy the assessments for plaintiff’s 1997 and 1998 tax years. See Def.’s Ex. 1 at 7 (indicating no outstanding balance for the 1997 tax year); Def.’s Ex. 2 at 13 (indicating no outstanding balance for the 1998 tax year). As of September 5, 2008, plaintiff had partially satisfied his assessment for 1999 and had an outstanding balance of $15,831.21. Def.’s Ex. 6 at 32. According to defendant, no payments have been applied toward plaintiffs 2000 and 2001 tax years, Def.’s Mot. 6, which had, as of September 5, 2008, outstanding balances due of $72,042.81 and $58,780.86, respectively, see Def.’s Ex. 7 at 36 (indicating the balance for the 2000 tax year); Def.’s Ex. 8 at 40 (indicating the balance for the 2001 tax year). Plaintiff has not filed a claim for refund for tax years 1999, 2000, or 2001. Def.’s Mot. 6; Stewart Deck H 4.

On May 2, 2007, plaintiff sent a letter to Microchip Technology in which he alleged that IRS Revenue Officer J. Jones lacked the delegated authority to send the Notice of Levy. Compl. Ex. B at 1; see also id. at 2 (containing plaintiffs affidavit stating that IRS Revenue Officer J. Jones (1) “was never authorized by the Secretary of the Treasury ... to send out such a notice,” (2) “will not be able to produce a Delegation Order from the Secretary of the Treasury ... authorizing him to seize property in payment of income taxes,” (3) “does not have an ‘enforcement pocket commission,’ ” and (4) “has no authority to seek to collect the income taxes I allegedly owe BY FORCE”). According to plaintiff, IRS Revenue Officer J. Jones is a “rogue agent” who has “commit[ted] the felonies [sic] act of fraudulent conversión.” Compl. Ex. D at 4. Plaintiff cautioned his employer:

Remember, a notice of levy is not a court order and Microchip Technology, Incorporated will respond to it at its own legal peril. You will be liable to me for breach of contract if you turn over my funds to someone who never had any legal authority to compel payment in this manner.

Compl. Ex. B at 1. Plaintiff alleges that his employer “responded by stating that they do not get involved in these matters even though they did[,] in fact[,] garnish my wages.... ” Compl. 111.

On or about January 9, 2008, plaintiff sent a letter to IRS Revenue Officer J. Jones, Compl. Ex. C, “informing him of the problems with the Notice of Levy,” Compl. If 3. Plaintiff, invoking the Freedom of Information Act (“FOIA”), requested the proof of authority relied upon by IRS Revenue Officer J. Jones to send the Notice of Levy, including “a photo copy of your badge and Employee ID; the date you took your Oath of Office, the name of the person administering the Oath, and a copy of that Oath,” as well as “the law Mr. J[.] Jones used to make his determination of the tax liability.” Compl. Ex. C at 2. Plaintiff also asserted that the “administrative determination of status for me is incorrect in several ways,” id., and included an “affidavit of status” with his letter,4 Compl. Ex. D. Plaintiff received no response from the IRS to his January 9, 2008 letter. Compl. U 3.

On August 18, 2008, plaintiff filed a pro se complaint in the United States Court of Federal Claims (“Court of Federal Claims”) al[253]*253leging that the Notice of Levy issued by the IRS to Microchip Technology was both deficient, id.

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Bluebook (online)
85 Fed. Cl. 248, 2009 U.S. Claims LEXIS 4, 103 A.F.T.R.2d (RIA) 497, 2009 WL 105626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buser-v-united-states-uscfc-2009.