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Buaiz v. United States

January 24, 2007

JOSEPH A. BUAIZ, JR., PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Before the Court is Defendant the United States of America's motion to dismiss the Amended Verified Complaint.*fn1 Defendant contends that the Court lacks subject matter jurisdiction over the Complaint, which is based on alleged violations of the Internal Revenue Code ("Code"), Title 26 of the United States Code, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, because the United States has not waived its sovereign immunity with respect to such claims. Plaintiff Joseph A. Buaiz, Jr., proceeding pro se, opposes the motion. For the reasons stated below, the Court will grant Defendant's motion in part and deny it in part.

I. BACKGROUND

Mr. Buaiz initiated this action on July 24, 2006 by filing a Verified Complaint; he filed an Amended Verified Complaint on September 8, 2006. The Amended Complaint itself contains nothing more than a series of legal allegations and conclusions grouped into 26 "Counts" relating to alleged violations of the Code; one paragraph of legal contentions relating to alleged violations of the APA; and a statement of Mr. Buaiz's alleged damages. Attached to the Amended Complaint is an "Amended Verified Statement of Facts," which contains the factual averments that purportedly support the legal conclusions in the Amended Complaint.

The gravamen of Mr. Buaiz's allegations is that the IRS has imposed tax liens and civil penalties against him although he owes no unpaid taxes, and that the IRS and its agents violated various provisions of the Code in connection with their investigation and subsequent collection efforts. The Amended Verified Statement of Facts, which is somewhat opaque, specifically states that in April 1995 Mr. Buaiz received a Notice of Levy that contained false "Unpaid Balance(s) of Assessment" information. Am. Stmt. of Facts ¶ 3. Thereafter, the IRS recorded a Notice of Lien against Mr. Buaiz in February 1996. Id. ¶ 4. After fruitless correspondence, Mr. Buaiz received two letters signed by Jane Lethco, an IRS employee, instead of unsigned computer-generated notices. Id. ¶¶ 5-6. According to the letters, IRS believes that Mr. Buaiz owes taxes for the years 1993 and 1994 and civil penalties for the years 1989 through 1994. Id. ¶ 6.

Mr. Buaiz immediately contacted Ms. Lethco by telephone. Id. ¶ 8. "Agent Lethco, after admitting IRS records show no W-2 or 1099 information regarding [Mr. Buaiz] for the years 1989 through 1994, refused to release said liens." Id. Continuing to challenge the liens, Mr. Buaiz sought copies of assessment certificates relating to him through the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Id. ¶ 10. An IRS Disclosure Specialist responded on February 23, 2006, "admitt[ing] Internal Revenue Service possessed no documents responsive to [Mr. Buaiz's] request for copies of properly executed assessments pertaining to [Mr. Buaiz] for years 1983 through 2004." Id. ¶ 11.

Velvet Cole, another IRS employee, wrote to Mr. Buaiz in March 2006 citing tax years 2000 through 2004 as years for which the IRS had not received any returns from Mr. Buaiz. Id. ¶ 12. When Mr. Buaiz telephoned her on March 24, 2006, Ms. Cole said that "she intended to investigate [him] to determine how [he] '. . . survived those years where there is no reported income.'" Id. ¶ 13. On May 3, 2006, Ms. Cole personally served Mr. Buaiz with an original un-attested Form 2039 First Party Summons, which indicated that tax years 2002 through 2005 were the years being investigated. Id. ¶ 17. Ms. Cole introduced herself as "Special Agent Velvet Cole from the Internal Revenue Service," but Mr. Buaiz asserts that she is an administrative employee, not a special agent. Id. ¶¶ 18-19. Mr. Buaiz further alleges that Ms. Cole threatened him with arrest if he did not respond to the summons. Id. ¶ 20. Less than an hour after Ms. Cole delivered the Summons, Mr. Buaiz received a second copy of the same form in the mail. Id. ¶ 23. Mr. Buaiz responded on May 15, 2007, challenging the summonses. Id. ¶ 30. Ms. Cole personally served two identical summonses upon Mr. Buaiz on June 7, 2006. Id. ¶ 25. According to Mr. Buaiz, "[t]he same testimony and documentation is being sought in all four summonses." Id. ¶ 28. Mr. Buaiz contends that Ms. Cole has pursued this "campaign of harassment and witness tampering" against him, id. ¶ 29, despite the fact that the IRS has determined that Mr. Buaiz actually overpaid his taxes for 2004 and 2005, id. ¶ 34.

Based on the foregoing factual contentions, Mr. Buaiz asserts 26 separate Counts against the United States. Because the 26 Counts in the Amended Complaint are dense, voluminous, and repetitive, the Court has grouped them into five general categories: (a) imposition of tax liens to collect taxes that were not properly owed, failure to release said liens, and failure to develop proper procedures governing the collection of unpaid taxes (Counts 6, 11, 14-16 & 18); (b) wrongful calculation of tax assessments, failure to suspend interest and penalties, and failure to make and properly record assessments (Counts 5, 7-8, 19, & 21); (c) failure to disclose to Mr. Buaiz, and wrongful disclosure to third parties of tax returns, assessments, and other tax records (Counts 3, 9-10, & 17); (d) failure to notify Mr. Buaiz of his obligation to keep records and file tax returns and improper use of his social security number (Counts 1-2 & 4); and (e) harassment and other misconduct in connection with the investigation into Mr. Buaiz's alleged failure to pay taxes (Counts 12-13, 20, & 22-26).

The foregoing Counts are brought under 26 U.S.C. § 7433, which provides an individual taxpayer with a cause of action for damages "[i]f, 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 . . . ." Am. Compl. at p. 2. The Amended Complaint further alleges that all the foregoing conduct violated the APA. Id. at p. 19. Mr. Buaiz seeks $1,562,669 in damages. Id. at pp. 19-21.

Defendant filed a motion to dismiss on September 26, 2006. In addition to an opposition brief, Mr. Buaiz filed a surreply brief on December 1, 2006 and a Request for Judicial Notice on January 10, 2007. Because Mr. Buaiz is proceeding pro se, the Court has accepted and will consider his surreply. The Court declines to take judicial notice of the documents submitted with Mr. Buaiz's Request for Judicial Notice, but it will consider those documents to have been incorporated by reference into the Amended Complaint. Defendant's motion is now ripe for decision.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

Under Rule 12(b)(1), a plaintiff bears the burden of establishing by a preponderance of the evidence that the court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). In deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint "but may also ...


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