Russell v. United States

78 Fed. Cl. 281, 100 A.F.T.R.2d (RIA) 5889, 2007 U.S. Claims LEXIS 281, 2007 WL 2484959
CourtUnited States Court of Federal Claims
DecidedAugust 29, 2007
DocketNo. 07-181
StatusPublished
Cited by50 cases

This text of 78 Fed. Cl. 281 (Russell 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
Russell v. United States, 78 Fed. Cl. 281, 100 A.F.T.R.2d (RIA) 5889, 2007 U.S. Claims LEXIS 281, 2007 WL 2484959 (uscfc 2007).

Opinion

[283]*283 OPINION

HEWITT, Judge.

This action was brought by David N. Russell, pro se, against the United States (government or defendant) for the return of money collected through a levy on plaintiffs wages by the United States, acting through the Internal Revenue Service (IRS), for back taxes.

I. Background

A. Procedural Histoiy

Plaintiff filed a complaint with this court on March 16, 2007, seeking the return of money collected by defendant through a levy on plaintiffs wages and compensatory damages. Verified Complaint (plaintiffs complaint or Compl.), Mar. 16, 2007,1. On May 3, 2007, plaintiff filed an Application for a Temporary Restraining Order and Application for a Preliminary Injunction seeking to prevent defendant from collecting additional unpaid taxes through the levy. Application for Temporary Restraining Order and Application for Preliminary Injunction (plaintiffs motions or Pl.’s Mots.), May 3, 2007, 1. On May 7, 2007, this court issued an Order directing defendant to respond to plaintiffs complaint and plaintiffs motions in one document. Order, May 7, 2007,1.

In response to this court’s Order, defendant filed a Motion by the United States to Dismiss Plaintiffs Complaint and Response to Plaintiffs Motions for Equitable Relief (defendant’s motion or Def.’s Mot.) on May 17, 2007. Defendant moves to dismiss plaintiffs complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), and alternatively, to dismiss plaintiffs complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Def.’s Mot. 1. Further, defendant opposes plaintiffs motions and argues that this court lacks jurisdiction to grant the equitable relief requested by plaintiff in plaintiffs motions. Id. at 1-2, 11. The responsive briefing comprises Plaintiffs Responsive Memorandmn to United States’ Motion to Dismiss Plaintiffs Complaint and Response to Plaintiffs Motions for Equitable Relief (plaintiffs response or Pl.’s Resp.) filed June 18, 2007, and the Reply by the United States to Plaintiffs Response to the Motion by the United States to Dismiss Plaintiffs Complaint (defendant’s reply or Def.’s Reply) filed July 11, 2007. On August 20, 2007, plaintiff filed additional motions seeking disposal of pending motions before the court and an extension of time to file the joint pretrial status report. Motion for Orders Disposing of Motions Pending Before the Court and Motion for Extension of Time to File a Joint Pretrial Status Report (plaintiffs motions filed on August 20, 2007 or Pl.’s Aug. 20 Mots.), Aug. 20, 2007, 1. For the following reasons, defendant’s motion to dismiss is GRANTED and plaintiffs applications for a Temporary Restraining Order and Preliminary Injunction are DENIED. The court deems plaintiffs motions filed on August 20, 2007, to be MOOT.

B. Plaintiffs Tax Payment Histoiy and the Levy on Plaintiffs Wages

This claim arises because of an IRS levy placed on plaintiffs wages to collect the outstanding balance of plaintiffs self-assessed tax liabilities for the tax periods ending December 31, 1999, and December 31, 2000. Compl. Ex. Bl, 1; Def.’s Mot. Ex. 1, 5; Def.’s Mot. Ex. 2,13. Plaintiff filed joint tax returns with his spouse for 1999 reporting a tax liability of $58,647.90, for 2000 reporting a tax liability of $62,478.86 and for 2004 reporting a tax liability of $53,400.00. Def.’s Mot. 2. Plaintiff and his spouse paid $9,000 toward their 1999 tax liability and $47,400 toward their 2004 tax liability. Id. “The IRS assessed penalties and interest for all three tax years.” Id. As of April 2007, plaintiff had outstanding balances for the three tax years totaling $162,543.52. Id. at 3.

On March 2, 2006, the IRS issued a Notice of Intent to Levy (notice of intent) to plaintiff for all three tax years at issue. Id. The notice of intent informed plaintiff that a tax lien could be filed at any time and that the IRS might use a levy to collect any part of the outstanding tax liability that plaintiff failed to pay within thirty days of receipt of the notice. Id. The notice of intent also informed plaintiff that a request for a Collec[284]*284tion Due Process (CDP) hearing must be made within thirty days of receipt of the notice of intent to be considered timely and to preserve plaintiffs right to appeal the IRS decision to the United States Tax Court (Tax Court) or the United States district court. Id. The IRS received no response from plaintiff regarding this initial notice. Id. On June 9, 2006, the IRS issued a second notice of intent containing the same information as the March 2, 2006 notice of levy regarding tax year 1999. Def.’s Mot. 3; Compl 3. The IRS issued a second notice of levy regarding tax years 2000 and 2004 on July 5, 2006. Def.’s Mot. 3; Compl. 3.

On June 26, 2006, plaintiff submitted a request for a CDP hearing regarding the notice for the 1999 tax year. Compl. 3; Def.’s Mot. 3. However, the request was incorrectly prepared because plaintiff had failed to include his spouse’s name on the form or obtain the signature of his spouse as is required for jointly filed returns. Def.’s Mot. at 3-4. Plaintiff was informed of the inadequacy of the request by letter on July 6, 2006. Id. at 3. Plaintiff submitted a revised request for a CDP hearing challenging the notice of levy for tax year 1999 on July 27, 2006 which included an explanation that plaintiff and his spouse were separated and plaintiffs spouse would not sign the required form. Id. at 4; Compl. 3. The IRS received the revised hearing request on August 11, 2006. Def-’s Mot. Ex. 9, 39.

In the meantime, on July 21, 2006, the IRS issued Notices of Federal Tax Lien (notices of lien) for all three of the tax years at issue. Def.’s Mot. 4. Plaintiff responded on August 26, 2006 by requesting a CDP hearing regarding the notices of lien for all three tax years. Id. Plaintiff was notified by letter from an IRS appeals officer on November 27, 2006 that plaintiffs CDP hearing request regarding the notice of intent was received and the hearing would take place telephonieally on December 14, 2006. Id. Plaintiff was informed in the letter of the hearing procedure, provided with examples of issues the appeals officer deemed non-frivolous and additional information plaintiff was required to submit in order for alternative collection procedures to be considered. Id. at 4-5. The appeals officer also told plaintiff that because his request for a CDP hearing on all three tax years at issue was timely, no levy action could take place until the appeals process was final. Id. at 5. Plaintiff requested that the hearing take place through written correspondence rather than over the telephone and requested additional time to prepare on December 5, 2006. Id. The appeals officer granted plaintiffs request on December 11, 2006 and plaintiff submitted his argument in writing on December 19, 2006. Id.; Compl. 3.

However, upon a complete review of plaintiffs file, the IRS appeals officer determined that plaintiffs request for a CDP hearing regarding the notices of intent was not timely because the notice of intent was originally sent on March 2, 2006 and the correctly completed hearing request form was not received until August 11, 2006. Def.’s Mot. 5.

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Cite This Page — Counsel Stack

Bluebook (online)
78 Fed. Cl. 281, 100 A.F.T.R.2d (RIA) 5889, 2007 U.S. Claims LEXIS 281, 2007 WL 2484959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-united-states-uscfc-2007.