The opinion of the court was delivered by: John D. Bates United States District Judge
This action is one of more than seventy cases in which dozens of individuals across the nation have submitted (in a pro se capacity) boilerplate filings to this Court, asserting that they are entitled to damages pursuant to the Taxpayer Bill of Rights ("TBOR") for alleged misconduct by the Internal Revenue Service ("IRS") in the collection of taxes. See 26 U.S.C. § 7433. Presently pending before the Court is defendant's motion to dismiss the amended complaint of plaintiff Paul B. Evans. Defendant has advanced several arguments to buttress its position, the most compelling of which is plaintiff's alleged failure to pursue administrative remedies as required by 26 U.S.C. § 7433(d)(1). Defendant contends that plaintiff's failure to comply with this provision divests the Court of subject matter jurisdiction over this matter. See Fed. R. Civ. P. 12(b)(1). For the reasons that follow, the Court concludes that plaintiff has failed to state a claim upon which relief can be granted due to his failure to exhaust administrative remedies. See Fed. R. Civ. P. 12(b)(6).
Section 7433(a) of the Internal Revenue Code authorizes taxpayers to bring an action for civil damages against any officer or employee of the IRS who "recklessly or intentionally, or by reason of negligence disregards any provision" of the Code or its implementing regulations. 26 U.S.C. § 7433(a). Section 7433(d)(1), however, limits such actions, by providing that "[a] judgment for 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 accordance with this provision, the IRS has promulgated regulations that establish procedures to be followed by a taxpayer who believes that IRS officers or employees have disregarded provisions of the tax code in their collection activities. See 26 C.F.R. § 301.7433-1. Specifically, these regulations require that an aggrieved taxpayer must first submit his or her claim "in writing to the Area Director, Attn: Compliance Technical Support Manager[,] of the area in which the taxpayer currently resides," and further require that the claim must include:
(i) The name, current address, current home and work telephone numbers and any convenient times to be contacted, and taxpayer identification number of the taxpayer making the claim;
(ii) The grounds, in reasonable detail, for the claim (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service);
(iii) A description of the injuries incurred by the taxpayer filing the claim (include copies of any available substantiating documentation or evidence);
(iv) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and
(v) The signature of the taxpayer or duly authorized representative.
26 C.F.R. § 301.7433-1(e). If such a claim is filed and the IRS has either issued a decision on the claim or has allowed six months to pass from the date of filing without acting on it, the taxpayer may proceed to file suit in federal district court pursuant to 26 U.S.C. § 7433(a). See 26 C.F.R. § 301.7433-1(d)(1). The regulations also allow the taxpayer to file suit immediately after the administrative claim is submitted if the administrative submission occurs during the last six months of the two-year limitations period. 26 C.F.R. § 301.7433-1(d)(2).
A brief review of the history of this regulation is provided to further frame the analysis below. The regulation was originally promulgated by the IRS in 1992 following the creation of the damages action at 26 U.S.C. § 7433 and its accompanying exhaustion requirement. See 56 Fed. Reg. 28842, 28843 (June 25, 1991) (citing Technical and Miscellaneous Revenue Act of 1988, § 6241, Pub. L. 100-647, 102 Stat. 3342 (1988)); 57 Fed. Reg. 3535, 3537 (Jan. 30, 1992). In 1996, Congress modified this scheme by providing that failure to exhaust administrative remedies would no longer bar suit, but instead would be a factor in reducing an award of damages; Congress also increased the amount of damages authorized from $100,000 to $1,000,000. 68 Fed. Reg. 14316, 14317 (Mar. 25, 2003) (citing Taxpayer Bill of Rights 2, §§ 801, 802, Pub. L. 104-168, 110 Stat. 1465 (1996)). In 1998, however, Congress reimposed the requirement to exhaust administrative remedies prior to bringing an action for damages under § 7433, and also expanded the action to include a claim based on negligent conduct -- and it is this version of § 7433 that is before the Court today. Id. (citing the Internal Revenue Service Restructuring and Reform Act of 1998, § 3102(a)(2), Pub. L. 105-206, 112 Stat. 685 (1998)). The IRS promulgated regulations in 2003 to conform 26 C.F.R. § 301.7433-1 to the 1996 and 1998 amendments.
At the outset, it is important to note that, in accordance with recent Supreme Court jurisprudence, the issue presented does not technically concern subject matter jurisdiction, and is more properly analyzed as a failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Turner v. United States, -- F. Supp. 2d. --, 2006 WL 1071852, *3-4 (D.D.C. 2006) (finding, based on Arbaugh v. Y&H Corp., 126 S.Ct. 1235 (2006), that an identical omission in an indistinguishable case raised an issue of failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6), rather than lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1)). For the reasons that follow, the Court will grant defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
In his opposition papers, plaintiff does not claim that he followed the procedures set forth in § 301.7433-1(e).*fn1 Rather, he contends that the exhaustion requirement does not apply where an adverse decision is certain, in particular, where the agency has articulated a very clear position on an issue and has demonstrated it is unwilling to reconsider. See Pl.'s Opp'n at 3-11 (citing Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986), and listing examples of IRS positions adverse to plaintiff). Plaintiff's argument fails for two reasons. In the ...