UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CALVIN KI SUN KIM and CHUN CHA KIM,
Plaintiffs, Civil Action No. 08-1660 (CKK) v.
UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION (May 26, 2009)
Pro se Plaintiffs Calvin Ki Sun Kim and Chun Cha Kim bring suit, in an action for
unspecified damages, against the United States, the Commissioner of the Internal Revenue
Service (“IRS”), and several IRS agents, both known and unknown, alleging noncompliance with
various statutes and involvement in an “ongoing campaign of harassment by correspondence.”
Complaint, Docket No. [1], at 6. Specifically, Plaintiffs’ 21-count Complaint names as
Defendants the United States, IRS Commissioner Douglas Shulman, and IRS Agents Dennis L.
Parizek, Scott B. Prentky, A. Chow as well as “Unknown” Agents 1-4 (collectively, “Individual
Defendants”) (with the United States, “Defendants”), and it asserts both due process violations
and violations of the Taxpayer Bill of Rights, 26 U.S.C. § 7433. Presently before the Court is
Defendants’ [4] Motion to Dismiss for, inter alia, lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the reasons that follow, the Court shall GRANT Defendants’
Motion. I. BACKGROUND
A. Factual Background
Since 2002, Plaintiffs Calvin Ki Sun Kim and Chun Cha Kim—both citizens of
Hawaii—have continuously corresponded with the IRS regarding payment of their federal
income taxes. See Compl. at 2-3, 25.1 According to Plaintiffs, they first received notice of
unpaid taxes due in a letter from the IRS dated January 14, 2002. Id. at 26. That letter charged
Plaintiffs with filing frivolous tax returns for the years 1998 and 1999 and levied a penalty. Id.
It also provided them with a Form 6335, or a “Statement of Tax Due the Internal Revenue
Service.” Id. Plaintiffs replied with a letter dated February 21, 2002 requesting that the penalties
be rescinded because their “intention for filing was not to be frivolous.” Id. By letter dated
September 20, 2002, the IRS reported that Plaintiffs had also failed to file 1040 Forms regarding
their individual income-tax returns for the year 2000. Id. at 25. The letter included a proposed
income tax assessment. Id. Plaintiffs responded on March 4, 2003 with a letter “explain[ing]
why [they] were not required to file an Individual Income Tax Return” and providing a copy of
their “Annual Statement for 2000.” Id. However, the Complaint does not set forth the grounds
for Plaintiffs’ claimed exemption.
On October 14, 2003, IRS Agent Parizek notified Plaintiffs that the IRS lacked records of
their income tax returns for 1999.2 Id. at 26. Five days later, the IRS forwarded a “Notice of
1 Plaintiffs paginated their Statement of Facts independently from their Complaint. For purposes of clarity, the Court will refer to pages 1-7 of the Statement of Facts as pages 25-32 of the Complaint, respectively. 2 The Complaint states in two separate paragraphs that a “Letter 1862” from an IRS agent was sent on October 14, 2003. See Compl. at 26-27. Because the number of letters sent that day is immaterial to resolution of this case, the Court will assume that one letter was sent.
2 Deficiency” for the tax year 2001. Id. at 27. Plaintiffs responded on October 29, 2003 by
sending a summary of 26 C.F.R. 1.6001-1(d) under the heading “Implied Legal Notice: Violation
of Due Process for Failure to Provide Notice(s) to Keep Records and File Returns.”3 Id. On
January 18, 2004, Plaintiffs also provided the IRS with their “2001 Annual Statement.” Id.
Nearly a year later, on January 12, 2005, IRS Agent Prentky issued Plaintiffs a Notice of
Deficiency for the tax years 2002 and 2003. Id. at 28. Plaintiffs answered with a January 19,
2005 “Notice of Dispute to Contest Your Notice of Deficiency and Notice to Rescind for Lack of
Valid Assessment.” Id. On July 15, 2005, IRS Agent Chow mailed Plaintiffs a Form 2039
Summons requesting that they appear before the local IRS office to account for their income tax
payments over the years 1999, 2000, and 2001. Id. at 29.
B. Procedural Background
Based on the foregoing facts, Plaintiffs seek money damages pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) for multiple alleged due process
violations, as well as damages pursuant to Internal Revenue Code (“IRC”), 26 U.S.C. § 7433
(relating to civil damages for certain unauthorized tax collection activities). See generally
Compl. The Complaint asserts 21 boilerplate “counts” against Defendants and is one of the
many similar lawsuits brought in this jurisdiction by tax protesters alleging a variety of forms of
misconduct by the IRS. See Smith v. United States, 475 F. Supp. 2d 1, 5 n.1 (D.D.C. 2006)
(collecting cases).4
3 Agent Parizek replied to this letter on June 12, 2007, stating that Plaintiffs’ arguments had been found “frivolous” and without “basis in law.” Compl. at 30. 4 Indeed, as Defendants point out, the Complaint in this action is virtually identical to the complaint filed in a matter before Judge Reggie B. Walton and which was dismissed by Judge
3 The Complaint’s first 18 counts are styled as Bivens causes of action and allege
misconduct under various provisions of the IRC and the Code of Federal Regulations. These
include:
• Failure to notify Plaintiffs of the requirement to keep records, make statements, or file tax returns, in violation of 26 U.S.C. § 6001, 26 C.F.R. § 1.6001-1(d) (Counts 1 and 2);
• Failure to prepare Substitutes for Returns in Plaintiffs’ names, in violation of 26 U.S.C. §§ 6020(a) & (b)(1), 26 C.F.R. § 301.6020-1(a) & (b) (Counts 3, 4, 5 and 6);
• Failure to disclose Plaintiffs’ returns to their representatives upon request, in violation of 26 U.S.C. § 6103, 26 C.F.R. § 301.6103(c)-1 (Counts 7 and 8);
• Misinterpretation of the Internal Revenue Code relating to the use of social security numbers in violation of 26 U.S.C. § 6109 (Count 9);
• Failure to notify as well as failure to promulgate a regulation for citizens who do not provide social security information, in violation of 26 C.F.R. §§ 301.6109- 1(a)(1)(ii)(B) & (d)(1) (Count 10);
• Failure to limit assessments to (1) taxes shown on a return or (2) unpaid taxes payable by stamp, in violation of 26 U.S.C. § 6201(a) (Count 11);
• Improper assessment of amounts owed by Plaintiffs, in violation of 26 U.S.C. § 7805, 27 C.F.R. pt. 70 (Count 12);
• Failure to comply with statutory limits on the Secretary of the Treasury’s regulatory authority, in violation of 26 U.S.C. § 6202 (Count 13);
• Failure to record and execute assessments in Plaintiffs’ names or to furnish Plaintiffs with copies of these assessments or signed summaries upon request, in violation of 26 U.S.C. § 6203, 26 C.F.R. § 301.6203-1 (Counts 14, 15, 16, and 17);
• Failure to implement deficiency regulations, in violation of 26 U.S.C. § 6211 (Count 18).
Walton in an Order dated October 22, 2008. See Order, Gavin v. United States, Civ. Act. No. 07- 1862, Docket No. [13].
4 The last three counts of the Complaint purport to state claims under the Taxpayer Bill of
Rights, 26 U.S.C. § 7433. Count 19 alleges that the IRS failed to develop and implement
procedures, including failure to “file notice of levy or lien,” take “appropriate disciplinary action
. . . against [an] employee,” and “implement a review process” of employee actions. Count 20
alleges that Defendants failed to give notice of an unpaid tax within sixty days of making an
assessment pursuant to 26 U.S.C. § 6303. Count 21 alleges harassment, oppression, and abuse
by IRS agents in connection with the collection of unpaid taxes, pursuant to 26 U.S.C. § 6304.
Plaintiffs filed their Complaint on September 25, 2008, requesting damages in an amount
to be determined by the Court. Compl. at 23. On December 31, 2008, Defendants filed the
instant [4] Motion to Dismiss. Plaintiffs filed an [9] Opposition to the Motion on April 10, 2009,
and Defendants submitted a [10] Reply on April 17, 2009. The Motion is now fully briefed and
ripe for decision.
II. LEGAL STANDARD
Defendants seek dismissal of the instant action on two primary grounds: (1) lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1); and (2)
failure to state a claim pursuant to Rule 12(b)(6).5
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule
5 Defendants also move to dismiss Counts 1 through 18—as against the Individual Defendants—for failure to effect proper serve as required by Rule 4. Defs.’ MTD at 11-12. Because the Court finds that Counts 1 through 18 must be dismissed as to the Individual Defendants, in both their official or personal capacity, for lack of subject matter jurisdiction and failure to state a claim under Rules 12(b)(1) and 12(b)(6) respectively, the Court in its discretion does not reach this argument in the alternative.
5 12(b)(1). In so doing, the Court may “consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193,
198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials
outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”);
Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff’d, 38 F. App’x 4 (D.C. Cir. 2002)
(“[W]here a document is referred to in the complaint and is central to plaintiff’s claim, such a
document attached to the motion papers may be considered without converting the motion to one
for summary judgment.”) (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th
Cir. 1999)). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints,
are to be construed with sufficient liberality to afford all possible inferences favorable to the
pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir.
2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it
remains the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the
evidence. Am. Farm Bureau v. Environmental Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C.
2000).
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
6 accord Erickson v. Pardus, 551 U.S. 89, 93 (per curiam). Although “detailed factual allegations”
are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of
“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Id. at 1964-65; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Instead, the complaint’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp., 550 U.S. at 589 (citations
omitted).
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must
construe the complaint in a light most favorable to the plaintiff and must accept as true all
reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine
Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally
construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be
derived from the facts alleged.”). In addition where, as here, an action is brought by a pro se
plaintiff, the Court must take particular care to construe the plaintiff’s filings liberally for such
complaints are held “to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999). When considering pro se complaints, courts may “consider supplemental
material filed by a pro se litigant in order to clarify the precise claims being urged.” Greenhill v.
Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (citing Anyanwutaku v. Moore, 151 F.3d 1053,
1054 (D.C. Cir. 1998)). “Nonetheless, a pro se complaint, like any other, must present a claim
7 upon which relief can be granted by the court.” Henthorn v. Dep’t of Navy, 29 F.3d 682, 684
(D.C. Cir. 1994) (quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).
III. DISCUSSION
A. Plaintiffs’ Bivens Claims
As explained above, Counts 1through 18 of Plaintiffs’ Complaint seek relief for “denial
of the right to due process of the tax law, administrative law, and record-keeping law of the
United States” pursuant to Bivens. See Compl. at 1, 8-20. As an initial matter, Defendants
correctly point out that Bivens actions may only be brought against federal officials in their
personal capacity, not in their individual capacity, and may not be brought against the Federal
Government. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to
agencies of the Federal Government is not supported by the logic of Bivens itself.”); Drake v.
F.A.A., 291 F.3d 59, 72 (D.C. Cir. 2002) (stating that it is “well-settled” that Bivens liability
cannot be imposed on an agency of the federal government); Mac’Avoy v. The Smithsonian
Instit., 757 F. Supp. 60, 69 (D.D.C. 1991) (“the Bivens doctrine does not apply to lawsuits
brought against the federal government”); Majhor v. Kempthorne, 518 F. Supp. 2d 221, 244-45
(D.D.C. 2007) (“a Bivens action may be maintained against a defendant only in his or her
individual capacity, and not in his or her official capacity”) (internal quotation marks and citation
omitted). Accordingly, to the extent Plaintiffs attempt to bring their Bivens claims against the
United States and the Individual Defendants in their official capacity,6 such claims must be
6 It is entirely unclear whether Plaintiffs intended to assert Counts 1 through 18 against the Individual Defendants in their individual capacity, in their official capacity, or both. See generally Compl. However, in light of this Court’s obligation to “liberally construe[]” the Plaintiffs’ pro se Complaint in their favor, Schuler, 617 F.2d at 608, the Court shall assume
8 dismissed for lack of subject matter pursuant to Rule 12(b)(1).
The Court is therefore left with Plaintiffs’ Bivens claims as alleged against the Individual
Defendants in their individual capacity. Defendants assert that these claims must also be
dismissed pursuant to Rule 12(b)(1) because a court should not create a Bivens remedy where
there is an alternative “comprehensive statutory remedial scheme” addressing Plaintiffs’ alleged
injuries—here, the IRC. Defs.’ MTD at 8. Before reaching the merits of this argument, the
Court notes that, although Defendants frame this argument as seeking dismissal for lack of
subject matter jurisdiction under Rule 12(b)(1), see id., the Court is persuaded that Defendants’
argument is more appropriately treated as challenging Plaintiffs’ Bivens claims under Rule
12(b)(6) for failure to state a claim. In essence, Defendants allege that Plaintiffs have failed to
state a claim for a Bivens action because no Bivens remedy exists for Plaintiffs’ alleged injuries.
Such an argument is better understood as seeking dismissal under Rule 12(b)(6), not Rule
12(b)(1). See Scott v. United States, _ F. Supp. 2d _, Civ. Act. No. 07-1529, 2009 WL 1027550,
*4 (D.D.C. Apr. 17, 2009) (evaluating argument that Bivens claims should be dismissed because
of the existence of a comprehensive statutory remedial scheme under Rule 12(b)(6), not under
Rule 12(b)(1)); Marsoun v. United States, 591 F. Supp. 2d. 41, 42, 47-48 (D.D.C. 2008) (same).
The Court shall therefore construe Defendants’ motion to dismiss—on this point only—as
seeking dismissal pursuant to Rule 12(b)(6) rather than under Rule 12(b)(1).7 With that
Plaintiffs intended to assert Counts 1 through 18 against the Individual Defendants in both their individual and official capacities. 7 Courts in this circuit have construed motions to dismiss pursuant Rule 12(b)(1) as motions to dismiss under Rule 12(b)(6) where appropriate. See, e.g., Kamen v. Int’l Brotherhood of Electrical Workers, 505 F. Supp. 2d 66, 71 (D.D.C. 2007) (noting that “‘[f]airness, not excessive technicality is the guiding principle under . . . the Federal Rules of Civil Procedure’”
9 understanding, the Court now turns to Defendants’ argument that Plaintiffs’ Bivens claims
against the Individual Defendants in their individual capacity should be dismissed.
Pursuant to the Supreme Court’s decision in Bivens, Federal courts “have discretion in
some circumstances to create a remedy against federal officials for constitutional violations.”
Wilson v. Libby, 535 F.3d 697, 704-705 (D.C. Cir. 2008). As the D.C. Circuit has counseled,
however, courts “must decline to exercise that discretion where ‘special factors counsel[ ]
hesitation’ in doing so.” Id. “One [such] ‘special factor’ that precludes creation of a Bivens
remedy is the existence of a comprehensive remedial scheme.” Id. That is, when “Congress has
put in place a comprehensive system to administer public rights, has ‘not inadvertently’ omitted
damages remedies for certain claimants, and has not plainly expressed an intention that the courts
preserve Bivens remedies,” courts “must withhold their power to fashion damages remedies”
pursuant to Bivens. Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (per curiam) (en
banc), rev’d on other grounds, Hubbard v. EPA, 949 F.2d 453, 292 (1991); see also Schweiker v.
Chilicky, 487 U.S. 412, 429 (1988) (when “Congress has discharged that responsibility [to create
a complex government program] . . . we see no legal basis that would allow us to revise its
decision”). Defendants assert that the IRC is one such “comprehensive” remedial scheme and
and therefore construing a motion to dismiss under Rule 12(b)(1) as a motion to dismiss pursuant to Rule 12(b)(6)) (quoting Flynn v. Ohio Building Restoration, Inc., 260 F. Supp. 2d 156, 161 n. 4 (D.D.C. 2003)); cf. Baker v. Dir., United States Parole Comm’n, 916 F.2d 725 (D.C. Cir. 1990) (finding that it is “practical and fully consistent with plaintiffs’ rights and the efficient use of judicial resources” to permit a district court to sua sponte dismiss a complaint for failure to state a claim where it is clear that “the claimant cannot possibly win relief”). In this case, both parties have had an opportunity to fully brief the issue at hand, and “[t]he parties do not disagree about the facts but rather about purely legal issues.” Kamen, 505 F. Supp. 2d at 71, n. 1. The Court therefore concludes that Plaintiffs will not be prejudiced by the Court’s consideration of Defendants’ motion under Rule 12(b)(6) and that it would benefit neither party to require Defendants to re-file the instant motion pursuant to Rule 12(b)(1).
10 that the Court therefore should decline to extend Bivens in this instance.
Although the D.C. Circuit has not yet taken a position on this question, almost every
circuit court that has done so has concluded that the IRC is a “comprehensive statutory remedial
scheme” that precludes creation of a Bivens action. See Adams v. Johnson, 355 F.3d 1179,
1184-1185 (9th Cir. 2004) (agreeing with “the First, Third, Fifth, Sixth, Seventh, Eighth, and
Tenth Circuits” that the IRC’s “many explicit remedial provisions” preclude Bivens relief for
“claims arising from federal tax assessment or collection” and collecting cases). Similarly, lower
courts in this jurisdiction have, for the same reasons, declined to create a Bivens remedy to
redress injuries alleged by other tax protesters, like Plaintiffs, who allege due process violations
stemming from purported violations of the IRC. See, e.g., Scott, 2009 WL 1027550, *4
(concluding that “plaintiffs cannot pursue a Bivens remedy for alleged denials of constitutional
due process arising from purported violations of the Internal Revenue Code, because such a
remedy is precluded by the ‘comprehensive statutory remedial scheme’ that Congress established
through the Internal Revenue Code”); see also Marsoun, 591 F. Supp. 2d. at 47-48 (“Because
Congress has comprehensively addressed the availability of damages where IRS employees are
alleged to have violated the Internal Revenue Code, plaintiff may not bring a damages claim
under Bivens for such violations under the mantle of due process.”); accord Pragovich v. United
States, 602 F. Supp. 2d 194, 195 (D.D.C. 2009) (“No Bivens remedy is available to the plaintiffs
because the Internal Revenue Code contains a comprehensive remedial scheme.”). The Court is
persuaded by the reasoning of these decisions and joins them in concluding that the IRC’s
numerous remedial provisions preclude creation of a Bivens remedy in this case.
Plaintiffs attempt to avoid this conclusion by arguing that “no remedy . . . is actually
11 available” for their alleged due process injuries. Pls.’ Opp’n at 2-3. Although somewhat unclear,
Plaintiffs appear to imply that the mere existence of a comprehensive statutory scheme should
not preclude creation of a Bivens remedy where the scheme fails to provide an alternative
remedy. See id. As an initial matter, Plaintiffs provide no legal authority for their claim that
they, in fact, have no remedy under the IRC. See id. However, even assuming that Plaintiffs are
correct that no remedy is available for their particular injuries under the IRC, it is well
established that “a comprehensive statutory scheme precludes a Bivens remedy even when the
scheme provides the plaintiff with ‘no remedy whatsoever.’” Wilson, 535 F.3d at 709 (quoting
Spagnola, 859 F.2d at 228)). It is “the comprehensiveness of the statutory scheme involved, not
the ‘adequacy’ of specific remedies extended thereunder, that counsels judicial abstention.” Id.
at 706. The Court therefore concludes that Counts 1through 18, as against the Individual
Defendants in their individual capacity, shall be dismissed for failure to state a claim upon which
relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).8
B. Plaintiffs’ Claims Under Section 7433
The last three counts of Plaintiffs’ Complaint—Counts 19, 20, and 21—purport to state
claims under 26 U.S.C. § 7433.9 Section 7433 of the IRC, otherwise known as the “Taxpayer’s
8 Finally, Defendants have also alleged, in the alternative, that Plaintiffs’ Bivens claims must be dismissed under Rule 12(b)(6) because the “facts contained in plaintiffs’ Statement of Facts are nothing more than a chronology of their correspondence with the IRS and its agents” and therefore “Plaintiffs have not made even the barest showing that any of the defendants have committed an act giving rise to liability.” Defs.’ MTD at 10-11. In light of the Court’s conclusion above, the Court need not reach this argument in the alternative. 9 Defendants note in their Motion to Dismiss that section 7433 permits actions only against the United States. See Defs.’ MTD at 12 (citing 26 U.S.C. § 7433). In response, Plaintiffs’ Opposition clarifies that Plaintiffs’ claims under Section 7433 are asserted against the United States only. Pls.’ Opp’n at 4, n.7. Accordingly, the Court proceeds on the understanding
12 Bill of Rights,” authorizes a taxpayer to bring an action for civil damages against any officer or
employee of the IRS who acts in disregard of the IRC or its implementing regulations in
connection with collection activity. Defendants argue that: (1) Counts 19 and 20 must be
dismissed for a lack of subject matter jurisdiction pursuant to Rule 12(b)(1) because the claims
do not relate to “collection activity;” and (2) that Counts 19, 20, and 21 must be dismissed for
failure to state a claim under Rule 12(b)(6) because Plaintiffs have not exhausted their
administrative remedies. Defs.’ MTD at 12-15.10 The Court shall address each argument in turn.
First, Defendants assert that Counts 19 and 20 must be dismissed for lack of subject
matter jurisdiction. It is well settled that the United States, as sovereign, is immune from suit
unless Congress has expressly waived that immunity. See, e.g., Block v. North Dakota, 461 U.S.
273, 287 (1983) (“The basic rule of federal sovereign immunity is that the United States cannot
be sued at all without the consent of Congress.”). Relevant to the instant action, Congress has,
through section 7433, effected a limited waiver of the IRS’ sovereign immunity, permitting suits
for damages if the IRS or its agents have intentionally, recklessly, or negligently disregarded any
provision of the Code “in connection with any collection of Federal tax . . . .” 26 U.S.C. § 7433
(emphasis added). Based on this statutory language, several courts in this jurisdiction have
concluded that this wavier applies only to actions in connection with the collection of taxes and
that conduct associated with investigation or assessment of income tax is beyond the statute’s
that Counts 19-21 of the Complaint are alleged against the United States only. 10 In addition, Defendants contend that Count 21 fails the notice pleading requirement of Rule 8(a) and must therefore be dismissed for failure to state a claim under Rule 12(b)(6). Given the Court’s conclusion below that each of Plaintiffs’ claims under section 7433 must be dismissed for Plaintiffs’ failure to exhaust their administrative remedies, the Court need not reach this argument in the alternative.
13 waiver of sovereign immunity. See, e.g., Buiaz v. United States, 471 F. Supp. 2d 129, 135
(D.D.C. 2007) (“this Court concludes, like other courts that have addressed the issue, that § 7433
waives the United States’ sovereign immunity only with respect to claims arising from the
collection of income taxes”); see also Jaeger v. United States, 524 F. Supp. 2d 60, 63-64 (D.D.C.
2007) (“section 7433 does not provide a cause of action for wrongful tax assessment, the absence
of a tax assessment, or other actions not related to the collection of income tax”); Spahr v. United
States, 501 F. Supp. 2d 92, 95 (D.D.C. 2007) (“the waiver of sovereign immunity provided in §
7433 is limited to claims that ‘aris[e] from the collection of income taxes’”) (citing Buiaz, 41 F.
Supp. 2d at 135). The Court is persuaded by the thorough reasoning of these decisions and joins
them today in finding that section 7433 is limited to claims that arise from the collection of
income taxes only.
The question then is whether the claims at issue in fact relate to “collection activities.”
Here, Count 19 alleges a cause of action based on the IRS Commissioner’s failure to develop and
implement procedures for filing notices, and Count 20 alleges an action for failure to give timely
notice as required under 26 U.S.C. § 6303. The Court concludes that neither count is related to
collection activities. Specifically, Count 19 arises from an alleged failure to promulgate
regulations and procedures and is therefore unrelated to collection of taxes. See Spahr, 501 F.
Supp. 2d at 96 (“claims based on an alleged failure to promulgate regulations and procedures do
not implicate § 7433’s prohibition against collection activity that disregards provisions of, or
regulations under, the Internal Revenue Code”). Similarly, Count 20 arises from an alleged
failure to timely notify the taxpayer of the outcome of an assessment and is therefore related to
assessment and not collection. See Jaeger, 524 F. Supp. 2d at 63-64 (concluding that claim
14 alleging failure to provide assessment notices relates to assessment of taxes, not collection, and is
therefore not covered by section 7433); Spahr, 501 F. Supp. 2d at 96 (dismissing claims relating
to assessment under section 7433 for lack of subject matter jurisdiction). Accordingly, both
claims falls outside section 7433’s limited waiver of sovereign immunity and the Court therefore
shall dismiss Counts 19 and 20 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).11
Second, even assuming that Plaintiffs’ claims under Counts 19 and 20 arguably related to
collection activity—which the Court finds they do not—all of Plaintiffs’ claims under section
7433 must fail based upon Plaintiffs’ failure to exhaust their administrative remedies. Section
7433, by its express language, requires taxpayers to first exhaust their administrative remedies
before bringing suit in federal court. See 26 U.S.C. § 7433(d)(1) (“damages shall not be awarded
. . . unless the court determines that the plaintiff has exhausted the administrative remedies
available to such plaintiff within the Internal Revenue Service”). In order for IRS complainants,
such as Plaintiffs, to exhaust their administrative remedies, they must submit an “administrative
claim” to the agency containing the contact information of the taxpayer and the grounds for and
dollar amount of the claim. See 26 C.F.R. § 301.7433-1(e). If the IRS does not respond within
six months after the administrative claim has been filed, a Plaintiff may file suit in federal district
11 Although neither party has raised this issue, the Court notes that there is a split among the lower courts in this jurisdiction as to whether failure to base a section 7433 claim on collection activities warrants dismissal under Rule 12(b)(1) or Rule 12(b)(6). Compare Buiaz, 41 F. Supp. 2d at 136, n. 3 (dismissing plaintiff’s claims under section 7433, where such claims were unrelated to collection activity, for lack of subject matter jurisdiction under Rule 12(b)(1)); Spahr, 501 F. Supp. 2d at 96 (same), with Jaeger, 524 F. Supp. 2d at 64, n. 1 (dismissing such claims for failure to state a claim under Rule 12(b)(6)). In this case, Defendants have asserted that dismissal under Rule 12(b)(1), rather than Rule 12(b)(6), is appropriate, and Plaintiffs have not made any arguments to the contrary. The Court shall therefore treat the limitations on the right of action under section 7433 as jurisdictional, and shall dismiss Counts 19 and 20 pursuant to Rule 12(b)(1).
15 court. See 26 C.F.R.§ 301.7433-1(d)(1). Defendants assert that Plaintiffs’ claims under section
7433 must be dismissed pursuant to Rule 12(b)(6) because Plaintiffs have failed to sufficiently
plead exhaustion. Defs.’ MTD at 14. The Court agrees with Defendants.12
Even taking care, as the Court must, “to construe the plaintiff’s [pro se] filings liberally,”
Haines, 404 U.S. at 520-21, it is clear that Plaintiffs have not pled exhaustion, and that Plaintiffs’
claims under section 7433 must therefore be dismissed for failure to state a claim. Plaintiffs’
Complaint does not indicate that they have exhausted their administrative remedies, and nothing
in Plaintiffs’ pleadings suggests otherwise. See generally Compl. Indeed, Plaintiffs have not
contested Defendants’ assertion that they failed to exhaust their administrative remedies. See
Pls.’ Opp’n at 11-12. Nor have Plaintiffs attempted to argue that their failure to do so is futile or
otherwise excusable. See id. Instead, Plaintiffs’ sole response to Defendants’ exhaustion
challenge is their assertion that dismissal in inappropriate because the exhaustion requirement is
an affirmative defense, with respect to which Defendants bear the burden. Id. (citing Jones v.
Bock, 549 U.S. 199 (2007)). Although Plaintiffs correctly cite Jones for the proposition that “the
usual practice under the Federal Rules [of Civil Procedure] is to regard exhaustion as an
affirmative defense,” 549 U.S. at 212, Jones also specifically notes that “[a] complaint may be
12 Defendants have treated Plaintiffs’ failure to exhaust as warranting dismissal under Rule 12(b)(6) for failure to state a claim. Although neither party raises the issue, the Court notes that some courts in this jurisdiction have instead treated a failure to exhaust under 26 U.S.C. § 7433(d)(1) as jurisdictional, and thereby covered by a motion to dismiss pursuant to Rule 12(b)(1). See, e.g., Turner v. United States, 429 F. Supp. 2d 149, 155 (D.D.C. 2006) (collecting cases). This Court, however, has previously found that motions to dismiss under section 7433 for failure to exhaust are better characterized as motions seeking dismissal under Rule 12(b)(6). See Smith v. United States, 475 F. Supp. 2d 1, 12 (D.D.C. 2006). Plaintiffs have not challenged this conclusion, and accordingly, the Court shall treat Plaintiffs’ failure to exhaust their administrative remedies as non-jurisdictional in character.
16 subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face.”
Id. at 215 (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)); see also Thompson v.
Drug Enforcement Admin., 492 F.3d 428, 438 (D.C. Cir. 2007) (“Even when failure to exhaust is
treated as an affirmative defense, it may be invoked in a Rule 12(b)(6) motion if the complaint
somehow reveals the exhaustion defense on its face.” (citing Jones, 127 U.S. at 215-16)).
Because, in this case, Plaintiffs never asserted that they filed an administrative claim or
contested Defendants’ allegation that they failed to do so, their failure to exhaust “appears on
[the] face” of Plaintiffs’ pleadings. Id. As other courts have explained, “exhaustion of
administrative remedies is a requirement for maintaining a suit for damages under section 7433
and failure to even allege exhaustion . . . has resulted in dismissal of many cases.” Guthery v.
United States, 507 F. Supp. 2d 111, 116 (D.D.C. 2007) ; see also Wesselman v. United States,
498 F. Supp. 2d 326, 328 (D.D.C. 2007) (“failure to exhaust [under Section 7433] is . . . fatal
under Federal Rule of Civil Procedure 12(b)(6)”). In failing to exhaust, Plaintiffs have
“effectively den[ied] the IRS any opportunity to administratively remedy the situation . . . [and]
failed to satisfy the indispensable prerequisite of exhaustion of administrative remedies.” See
Miller v. United States, Civil Action No. 06-1250, 2007 WL 2071642, at *3 (D.D.C. Jul. 19,
2007) (granting defendant’s motion to dismiss claims under section 7433 for failure to exhaust)
(internal quotation omitted). Therefore, this Court shall dismiss Plaintiff’s claim for damages
under 26 U.S.C. § 7433 for failure to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6).13
13 Finally, the Court notes that, although neither party has raised the issue, Plaintiffs’ Complaint also appears to invoke jurisdiction under the APA, 5 U.S.C. §§ 704, 706; the Federal Records Act, 44 U.S.C. § 3101 et seq.; and the National Archives Act, 44 U.S.C. § 2101 et seq.
17 III. CONCLUSION
For the reasons set forth above, the Court shall GRANT Defendants’ [4] Motion to
Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). An appropriate
Order accompanies this Memorandum Opinion.
Date: May 26, 2009
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge
However, none of these provisions can support Plaintiffs’ cause of action. First, “the APA does not waive sovereign immunity with respect to suits for money damages,” meaning that Defendants cannot be found liable under the APA. See Wesselman v. United States, 501 F. Supp. 2d 98, 101 (D.D.C. 2007); see also Ross v. United States, 460 F. Supp. 2d 139, 149 (D.D.C. 2006) (citing Holt v. Davidson, 441 F. Supp. 2d 92, 96 (D.D.C. 2006) and Larsen v. United States Navy, 346 F. Supp. 2d 122, 128 (D.D.C. 2004)). Second, Plaintiffs’ “cursory reference[s] to unspecified provisions of the Federal Records Act and the National Archives Act” – a common theme in tax protester cases – fail to surmount the barrier of sovereign immunity. See Wesselman, 501 F. Supp. 2d at 101 (explaining that neither the Federal Records Act nor the National Archives Act “provides the necessary waiver of sovereign immunity”); accord Buaiz v. United States, 471 F. Supp. 2d 129, 138 (D.D.C. 2007). All three statutes thus fail to establish federal subject-matter jurisdiction because they cannot bypass the government’s immunity from suit.