Ward Franklin Dean v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 30, 2021
• Docket: 20-14421
• Status: Unpublished

Opinion

USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14421 Non-Argument Calendar ________________________

D.C. Docket No. 3:19-cv-03362-MCR-HTC

WARD FRANKLIN DEAN,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(June 30, 2021)

Before GRANT, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 2 of 12

Ward Dean, a taxpayer proceeding pro se, appeals following the district

court’s dismissal of his complaint for damages against the Internal Revenue

Service and its denial of leave to amend his complaint. We affirm.

I.

Dean filed the present civil suit in 2019, alleging that IRS employees had

negligently or recklessly disregarded various provisions of the Internal Revenue

Code, in violation of 26 U.S.C. § 7433, by unlawfully seizing his Social Security

benefit payments in order to pay tax debts that Dean claimed had been eliminated

by operation of statute and by the IRS’s release of tax liens. In his complaint,

Dean alleged that he owed “substantial” federal income tax and additions to tax for

the years 1997 through 2005. In September 2007, the IRS assessed tax liabilities

for each of those years, notified him of the assessments and a statutory lien

attached to all his property and rights to property, demanded payment, and warned

him that it would take enforced collection action against his property if he did not

pay the assessed debt within ten days.

Over the next several years, Dean made payments on his tax debt but could

not pay it off. In June 2013, therefore, the IRS served a notice of levy on the

Social Security Administration, seizing Dean’s “entire social security benefit.” 1

1 In ruling on the government’s motion to dismiss, the district court appropriately considered the June 2013 notice of levy, in addition to the facts alleged in Dean’s complaint, because the notice 2 USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 3 of 12

The notice stated that the levy would remain “in effect for benefit and retirement

income if the taxpayer has a current fixed right to future payments,” until the IRS

released the levy. The notice of levy included an accounting of Dean’s unpaid tax

debt, which totaled more than $2.8 million including interest and late payment

penalties. Beginning in July 2013, the Social Security Administration sent Dean’s

monthly Social Security benefit payment to the IRS in compliance with the levy.

In September 2017, the ten-year statutory collection period expired for the

tax debt assessed by the IRS in 2007. See 26 U.S.C. § 6502(a). Shortly before the

expiration date, the IRS issued and filed a certificate of release of federal tax lien

releasing its 2007 lien on Dean’s property. According to Dean, the IRS took “three

legal actions” at the end of the collection period, which it “announced” in the lien

release: in addition to releasing the tax liens on his property and property rights,

Dean alleged that the IRS also “expunged” his tax liabilities from its records and

“extinguished” its recorded tax assessments from its accounts receivable. Dean

further alleged that the passage of the statutory expiration date meant that he no

longer had any unpaid tax liabilities and the IRS’s 2007 tax assessment was no

longer collectible.

of levy was referred to in Dean’s complaint and central to his claims, and its authenticity was undisputed. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). 3 USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 4 of 12

Despite the expiration of the statutory collection period and its filing of the

lien release, however, the IRS continued to receive Dean’s monthly Social Security

benefit payments. Dean alleged that by “maintain[ing]” the June 2013 levy after

the expiration of the statutory collection period, IRS employees negligently,

recklessly, or intentionally disregarded the provisions of the Internal Revenue

Code and its implementing regulations and effected repeated monthly unlawful

seizures of his Social Security benefit payments. He sought damages pursuant to

26 U.S.C. § 7433(a) in the amount of the Social Security payments accepted by the

IRS after the statutory expiration date.

The IRS moved to dismiss Dean’s complaint for failure to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In turn, Dean moved

for summary judgment. A magistrate judge issued a report and recommendation

concluding that even if the facts alleged in Dean’s complaint were accepted as true,

Dean had not stated a claim for damages under § 7433 because the IRS’s continued

receipt of Dean’s Social Security payments under the 2013 levy was lawful. The

magistrate therefore recommended that the district court grant the IRS’s motion to

dismiss and deny Dean’s motion for summary judgment.

Dean objected to the magistrate’s report and moved for leave to amend his

complaint. His proposed amended complaint reiterated his allegations that IRS

employees disregarded requirements of the Internal Revenue Code when they

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“maintained” the 2013 levy of his Social Security benefits after the end of the ten-

year statutory collection period. The proposed amended complaint also alleged

that the IRS “created” new interest charges every month after the collection period

expired—in the exact amount of his monthly Social Security payment—and posted

that amount due on his tax account just before accepting the payment from the

Social Security Administration. Dean alleged that IRS employees unlawfully

charged and collected interest on tax debt that had been “written-off” when the ten-

year collection period ended, and did so without providing the notice and demand

for payment required by statute.

Dean later filed a second motion for leave to amend his complaint. His

second proposed amended complaint restated the § 7433 claim from his first

proposed amended complaint and added a claim for refund of overpayment of tax

pursuant to 26 U.S.C. § 7422, also based on the seizure of his Social Security

benefit payments.

The district court overruled Dean’s objections to the magistrate’s report and

recommendation, granted the IRS’s motion to dismiss, and denied Dean’s motion

for summary judgment. The district court also found that Dean’s proposed

amended complaints would still be subject to dismissal and therefore denied his

motions to amend his complaint as futile. Dean now appeals.

5 USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 6 of 12

II.

We review the district court’s ruling on a motion to dismiss for failure to

state a claim de novo, accepting the factual allegations in the complaint as true and

drawing all reasonable inferences in favor of the plaintiff. PBT Real Est., LLC v.

Town of Palm Beach, 988 F.3d 1274, 1286 (11th Cir. 2021); Henderson v.

McMurray, 987 F.3d 997, 1003 (11th Cir. 2021). “We review the district court’s

refusal to grant leave to amend for abuse of discretion, although we exercise de

novo review as to the underlying legal conclusion that an amendment to the

complaint would be futile.” SFM Holdings, Ltd. v. Banc of America Securities,

LLC, 600 F.3d 1334, 1336 (11th Cir. 2010) (citation omitted).

III.

A.

To avoid dismissal under Rule 12(b)(6), a complaint must allege facts that,

if accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim for relief is plausible if the

complaint contains factual allegations that allow “the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Conclusory allegations, unwarranted deductions

of facts or legal conclusions masquerading as facts will not prevent dismissal.

Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

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Section 7433 of the Internal Revenue Code authorizes a civil action for

damages against the United States if an IRS employee acts unlawfully in the

collection of federal tax. 26 U.S.C. § 7433(a). Relevant to Dean’s § 7433 claim,

the Internal Revenue Code provides that if an individual fails to pay tax for which

he is liable within ten days after the government’s notice and demand for payment,

the IRS may collect the tax by levy on the individual’s nonexempt property or

rights to property. 26 U.S.C. § 6331(a). The IRS’s service of a notice of levy is

equivalent to a seizure of property; the levy gives the United States immediate full

legal right to the property and reduces it to the government’s constructive

possession. Phelps v. United States, 421 U.S. 330, 334, 336–37 (1975).

Once the government has made an assessment of tax debt, it generally must

collect such debt by levy or court proceeding within ten years after the assessment.

26 U.S.C. § 6502(a)(1). A levy made outside the statutory collections period

generally must be released. 26 C.F.R. § 301.6343-1(b)(1)(i). And a continuing

levy on salary or wages must be released at the end of the ten-year collections

period. Id. But “a levy on a fixed and determinable right to payment which right

includes payments to be made after the period of limitations expires does not

become unenforceable upon the expiration of the period of limitations and will not

be released under this condition unless the liability is satisfied.” Id.

§ 301.6343-1(b)(1)(ii).

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The district court did not err in dismissing Dean’s complaint because the

factual allegations in his complaint, taken as true, did not state a claim under

§ 7433. Dean’s complaint was based on his misapprehension of the legal effect of

the expiration of the statutory collections period and the IRS’s release of its liens

on his property. It is true that the IRS could not have issued a notice of levy

seizing his Social Security benefit after the collection statute of limitations passed

in 2017. But it did not do so. Instead, the IRS seized his entire Social Security

benefit—that is, his “fixed and determinable right to payment” of his Social

Security benefit in monthly installments—immediately upon issuing the notice of

levy in June 2013. 26 C.F.R. § 301.6343-1(b)(1)(ii); see Phelps, 421 U.S. at 337.

Having seized his entire benefit before the expiration of the collection limitations

period, the IRS was not required to relinquish it after the period expired. See 26

C.F.R. § 301.6343-1(b)(1)(ii). Thus, the district court did not err in disregarding

Dean’s mistaken legal conclusions regarding the continuing viability of the 2013

levy, or in concluding that the remaining allegations in his complaint failed to state

a claim for unlawful collection action by IRS employees.

B.

Dean also argues that the district court abused its discretion by denying his

motions to amend his complaint. Again, we disagree. Under Rule 15, a plaintiff

may amend his complaint with leave of the court, which should be given freely

8 USCA11 Case: 20-14421 Date Filed: 06/30/2021 Page: 9 of 12

“when justice so requires.” Fed. R. Civ. P. 15(a)(2). A party who requests leave to

amend ordinarily must be given at least one opportunity to do so before the

complaint is dismissed. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th

Cir. 2005). The district court need not allow an amendment, however, “(1) where

there has been undue delay, bad faith, dilatory motive, or repeated failure to cure

deficiencies by amendments previously allowed; (2) where allowing amendment

would cause undue prejudice to the opposing party; or (3) where amendment

would be futile.” Id. “Leave to amend a complaint is futile when the complaint as

amended would still be properly dismissed or be immediately subject to summary

judgment for the defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.

2007).

In his first proposed amended complaint, Dean reiterated his claim that IRS

employees unlawfully “maintained” the 2013 levy on his Social Security benefit

after the expiration of the ten-year collection period. He also claimed that the same

employees unlawfully “created” new tax debt and applied his Social Security

benefit payments to that new debt, after having written off his $2-million-plus

balance in 2017. He attached a transcript of his tax account, which showed

monthly “interest” charges in the same amount as his Social Security benefit

payment, so that each month when the government accepted the Social Security

payment, his tax account balance returned to zero.

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This proposed amendment would have been futile because the complaint as

amended still would not have stated a claim under § 7433. As discussed above, the

2013 levy on Dean’s Social Security benefit was a one-time levy by which the IRS

seized Dean’s “entire” Social Security benefit, including his right to future

payments. The IRS’s continued receipt of monthly benefit payments from the

Social Security Administration did not constitute wrongful collection activity. And

because § 7433 provides a cause of action only for wrongful actions taken “in

connection with any collection of Federal tax,” the IRS’s bookkeeping notations

attributing the Social Security payments to interest charges—even if they could be

construed as improper assessments of interest—are insufficient to support Dean’s

§ 7433 claim without any accompanying unlawful collection activity. 26 U.S.C.

§ 7433(a) (emphasis added); see also Miller v. United States, 66 F.3d 220, 223 (9th

Cir. 1995) (holding that the alleged improper assessment of tax liability is not

actionable under § 7433); Shaw v. United States, 20 F.3d 182, 184 (5th Cir. 1994)

(same); Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir. 1992) (same).

In Dean’s second proposed amended complaint, he reiterated his revised

§ 7433 claim and added a claim for overpayment of taxes under 26 U.S.C. § 7422.

His proposed amendment adding this new claim also would have been futile.

Generally, a taxpayer seeking a refund for the overpayment of taxes,

including any amount assessed or collected after the expiration of the statutory

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collection period, may sue the government in federal district court. See 26 U.S.C.

§ 7422; see also id. § 6401(a). As a jurisdictional prerequisite for such claims,

however, the taxpayer must first make full payment of the assessed tax. Flora v.

United States, 362 U.S. 145, 177 (1960) (construing 28 U.S.C. § 1346(a)(1) as

requiring full payment of taxes owed before bringing suit in federal court). Here,

Dean alleged that the remainder of his tax debt became uncollectible after the

statutory collection period expired, but he never claimed to have paid the debt in

full—and the tax account transcript attached to Dean’s proposed amended

complaint shows payments totaling substantially less than the $2.8 million debt

against which the 2013 levy of his Social Security benefit was made. Thus, Dean’s

proposed overpayment claim would have been subject to dismissal for lack of

jurisdiction. Id. The district court therefore correctly determined that the proposed

amendment was futile, and the denial of Dean’s second motion to amend was not

an abuse of discretion. See Cockrell, 510 F.3d at 1310.

IV.

We conclude that the district court did not err in dismissing Dean’s

complaint against the IRS for failure to state a claim under 26 U.S.C. § 7433

because the factual allegations in his complaint, accepted as true, did not describe

any disregard of the Internal Revenue Code by IRS employees. The district court

did not abuse its discretion in denying Dean’s motions to amend his complaint

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because the additional factual allegations in his proposed amended complaints still

did not state a claim under § 7433, and his claim for overpayment of tax would

have been subject to dismissal for lack of jurisdiction. We therefore affirm.

AFFIRMED.