United States v. Bryan

District Court, E.D. California·Decided September 21, 2023·No. 2:22-cv-01962·Unknown

Opinion

UNITED STATES OF AMERICA, No. 2:22-cv-01962-DJC-AC

Plaintiff, v. MARK LINN BRYAN et al., Defendants.

Plaintiff the United States of America filed this action to reduce to judgment

federal tax assessments against Defendant Mark Linn Bryan and to foreclose federal

tax liens on Defendant’s community property located in Lodi, California on October

31, 2022. (ECF No. 1.) Plaintiff amended its complaint on June 23, 2023, adding

additional claims against Defendant. (ECF No. 76.) Defendant filed a Motion to

Dismiss on July 21 , 2023, arguing that (1) Internal Revenue Service (“IRS”) Delegation Order 5-2 prohibits the IRS from determining his tax liability pursuant to 26 U.S.C. § 6020(b), and (2) the IRS cannot assess taxes against him because he does not deal in alcohol, tobacco, or firearms. (ECF No. 80.) Defendant subsequently filed a second Motion to Dismiss on August 8, 2023, arguing this Court lacks subject-matter jurisdiction, (ECF No. 85,) and four more Motions to Dismiss on August 25, 2023, arguing (1) this Court lacks personal jurisdiction, (ECF No. 92,) (2) Plaintiff failed to join an indispensable party, (ECF No. 93,) (3) there was insufficient service of process, (ECF

No. 94,) and (4) venue is improper, (ECF No. 96.)

For the reasons set forth below, these Motions will be DENIED.

As a preliminary matter, the Court generally observes that many of the

arguments raised in Defendant's Motions sound in sovereign citizen and/or “tax-

defier” ideology. “Courts across the country have uniformly rejected arguments

based on the sovereign citizen ideology as frivolous, irrational, or unintelligible.”

, No. 21-cv-00740-DAD-EPG (PC), 2021 WL 4206432, at *5 (E.D. Cal.

Sept. 16, 2021) (citations and quotations omitted). The Ninth Circuit has rejected

arguments premised on the ideology as “utterly meritless.”

, 783 F.2d 934, 937 n.3 (9th Cir. 1986). Thus, to the extent Defendant’s

arguments are based on such ideology, they are nothing more than “frivolous and

nonsensical recitations of previously rejected arguments brought by other litigants

hoping to avoid tax liability.” , No. 16-cv-985-RSL, 2017 WL

3385864, at *2 (W.D. Wash. Aug. 7, 2017). For the sake of judicial economy, the Court

will only briefly address Defendant’s arguments below.

Defendant’s first Motion to Dismiss, (ECF No. 80,) was untimely, as the

amended complaint was mailed to Defendant on June 23, 2023, which made

Defendant’s deadline to file a responsive pleading July 17, 2023. (ECF No. 75 at 3

(“Defendant[] shall file responsive pleadings within twenty-one (21) days of service of

the First Amended Complaint.”);) Fed. R. Civ. P. 5(b)(2)(C) (“[S]ervice is complete upon

mailing.”); , No. 00-cv-07163-GAF-AJWx, 2004 WL 291225, at *1

(C.D. Cal. Feb. 5, 2004) (“It is generally accepted that ‘[s]ervice by mail is

accomplished, for purposes of Rule 5, when documents are placed in the hands of the United States Post Office or in a Post Office Box.’”); Fed. R. Civ. P. 6(d) (giving an additional three days when service is made by mail). Defendant filed his Motion on July 21, four days past the deadline. Even if Defendant’s Motion were timely, his arguments are largely unintelligible

and meritless for the reasons stated in Plaintiff’s Opposition. (ECF No. 81.) First,

Defendant’s contention that IRS Delegation Order 5-21 supposedly prohibits the IRS

from determining an individual’s tax liability pursuant to 26 U.S.C. § 6020(b) is untrue.

Congress empowered the Secretary of the Treasury to execute an income tax return

for any person who fails to file a return. 26 U.S.C. § 6020(b). Delegation Order 5-

2 simply delegates this authority to various IRS employees. Courts in this circuit have

repeatedly recognized the authority of the IRS to prepare substitute income tax

returns for taxpayers who do not file a Form 1040. , 847 F.2d

1379, 1381 (9th Cir. 1988) (recognizing that “section 6020(b)(1) simply endows the

Secretary with ‘[a]uthority’ to execute a return” on behalf of a taxpayer who does not

file one himself); , 774 F.2d 932, 935 (9th Cir.1985); , 527

B.R. 14, 18 (N.D. Cal. 2014), , 828 F.3d 1094 (9th Cir. 2016) (“Section 6020(b)

refers to a return prepared by the IRS when the taxpayer fails to prepare a timely

return or makes a false or fraudulent return, and the IRS must prepare the return

based upon such information as it obtains itself.”); , 228 B.R. 457, 460 (C.D.

Cal. 1998) (“When a party fails to file a return, or willfully files a false or fraudulent

return, the IRS shall prepare the return from its own information.”). Second, nothing in

section 6020(b) limits its applicability to the internal revenue laws concerning alcohol,

tobacco and firearms. , No. 91–70121, 1992 WL 45780,

at *1 n.1 (9th Cir. Mar. 4, 1992). Thus, Defendant’s Motion will be denied.

Defendant’s successive Motion to Dismiss, (ECF Nos. 85), largely suffers from

the same flaws as the first. The Court has subject-matter jurisdiction over this matter

1 Defendant requests th e Court take judicial notice of Delegation Order 5-2. Pursuant to Federal Rule of Evidence 201, courts shall take notice, when requested and provided with sufficient information, of facts that are not subject to reasonable dispute because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Public records and government documents drawn from reliable sources on the Internet may be judicially noticed. , 981 F. Supp. 2d 868, 879 (N.D. Cal. 2013). The text of Delegation Order 5-2 was obtained from the IRS's website. https://www.irs.gov/irm/part1/irm_01- 002-002#idm140336980320784. Thus, the Court will take judicial notice of Delegation Order 5-2. because Plaintiff’s action arises under the Constitution, laws, or treatises of the United

States. U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, [and] the Laws of the United States.”); 28

U.S.C. § 1331. Defendant’s arguments to the contrary are meritless, and his Motion

will be denied.

Concerning Defendant’s remaining Motions, the Court concurs with Plaintiff

that Defendant waived his arguments concerning lack of personal jurisdiction, (ECF

No. 92,) improper service, (ECF No. 94,) and improper venue, (ECF No. 96,) by failing

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