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Lohmann v. United States

July 3, 2006

WALLACE LOHMANN, PLAINTIFF,
v.
UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Wallace Lohmann, proceeding pro se, brings this suit against the United States, alleging numerous violations of the Internal Revenue Code by agents of the Internal Revenue Service ("IRS") in the assessment and collection of taxes beginning with "tax year" 2001. Lohmann seeks an award of damages for the IRS's alleged wrongful collection of federal taxes. The United States moves to dismiss this action on the grounds that this court is without subject matter jurisdiction because Lohmann assertedly failed to exhaust his administrative remedies prior to filing suit.*fn1 Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.*fn2

I.

Lohmann alleges that, in connection with the assessment and collection of federal tax monies from "tax year" 2001 to the present, agents of the IRS "recklessly, intentionally or by reason of negligence disregarded and continue to disregard" numerous provisions of the Internal Revenue Code, 26 U.S.C. § 7433, and its corresponding IRS regulations, 26 C.F.R. § 301.7433-1. Am. Compl. ¶ 1.*fn3

A. Exhaustion of Administrative Remedies

The United States argues that dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is appropriate because this court lacks subject matter jurisdiction over this action due to Lohmann's failure to exhaust his administrative remedies. The United States is correct that Lohmann failed to exhaust his administrative remedies. However, the proper consequence of this failure is to dismiss this action under Rule 12(b)(6), rather than Rule 12(b)(1), due to Lohmann's failure to state a claim upon which relief can be granted.

The jurisdictional basis for this action is 26 U.S.C. § 7433 which states:

(a) If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.

26 U.S.C. § 7433(a).

While seemingly a broad grant of jurisdiction, § 7433(d) provides an important limitation. Section 7433(d) requires a plaintiff who seeks to bring an action for damages in a U.S. District Court to exhaust her administrative remedies. Section 7433(d) could not be clearer. The court may not award damages "unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433 (emphasis added).

The IRS regulations promulgated to implement § 7433(d) are quite specific. An administrative claim shall 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 ...


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