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O'Connor v. United States

January 29, 2007

JAMES O'CONNOR, PLAINTIFF,
v.
UNITED STATES, DEFENDANT.



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

MEMORANDUM OPINION

James O'Connor, proceeding pro se, brings this action 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" 2000. O'Connor seeks an award of damages for the IRS's alleged wrongful collection of federal taxes, a refund of all "unassessed taxes" and "seized property," and injunctive relief against the IRS from engaging in any further collection activity until all of his claims are resolved.

Before the court is the United States' motion to dismiss [#5] and O'Connor's cross-motion for summary judgment [#12]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that the United States' motion should be granted and O'Connor's motion should be denied.

I.

O'Connor, a resident of Texas, alleges that in connection with the assessment and collection of federal tax monies from "tax year" 2000 to the present, the IRS "recklessly, intentionally or by reason of negligence disregarded and continue to disregard" numerous provisions of Title 26 of the Internal Revenue Code, 26 U.S.C. § 6201 et seq., and its corresponding IRS regulations. Compl. ¶¶ 1,7.*fn1 A. United States' Motion to Dismiss

The United States contends that this action should be dismissed because O'Connor has failed to exhaust his administrative remedies.*fn2 Specifically, the United States contends that O'Connor failed to allege that he properly filed a claim for a refund, as required by the applicable regulations, and that he failed to allege that he fully paid the federal taxes for which he seeks a refund, as required by statute.

The TBOR provides a taxpayer with a cause of action for damages against the United States 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. 26 U.S.C. § 7433(a). Under § 7433(d), however, damages may not be awarded "unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." Id. § 7433(d).*fn3

The IRS regulations promulgated to implement § 7433(d) specifically require that a claim for administrative remedies 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);

(v) The signature of the taxpayer or duly authorized representative.

26 C.F.R. § 301.7433-1(e). Additionally, a taxpayer must show that he has fully paid his assessed taxes prior to filing a suit for a refund. Flora v. United States, 362 U.S. 145, 177 (1960) (holding that "full payment of the assessment before an ...


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