UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 14, 2007
BOONE MCREYNOLDS, ET AL., PLAINTIFFS,
UNITED STATES GOVERNMENT, DEFENDANT.
The opinion of the court was delivered by: James Robertson United States District Judge
Pro se plaintiffs Boone and Viola McReynolds allege a series of violations by the Internal Revenue Service ("IRS") in the collection of taxes. They seek damages against the United States pursuant to 26 U.S.C. § 7433.*fn1 The government moves to dismiss on a number of grounds, among them failure to exhaust administrative remedies. The motion is well taken and will be granted.
The Taxpayer Bill of Rights waives the sovereign immunity of the United States with respect to taxpayer suits for damages 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 . . . or any regulation" of the tax code. 26 U.S.C. § 7433(a). However, section 7433(d)(1) further provides 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."
The IRS has established by regulation the procedures by which a taxpayer may pursue an administrative claim under section 7433. See 26 C.F.R. § 301.7433-1. The regulations require that the taxpayer write to the "Area Director, Attn: Compliance Technical Support Manager" for the area in which the taxpayer resides, id. § 301.7433-1(e)(1), and provide:
(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.
d. § 301.7433-1(e). The regulations provide that a § 7433 action for damages "may not be maintained unless the taxpayer has filed an administrative claim pursuant to . . . this section," 26 C.F.R. § 301.7433-1(a), and suit may not be filed until either the IRS rules on the claim or six months pass without a decision on a properly filed claim, id. § 301.7433-1(d)(i)-(ii). The only exception is for administrative submissions made during the last six months of the two-year statute-of-limitations period; a taxpayer may file suit immediately after the administrative claim is submitted in such a circumstance -- but the taxpayer must have filed administratively first, id. § 301.7433-1(d)(2).
In their amended complaint, plaintiffs state only that they filed a "Verified Administrative Claim for Damages with the Internal Revenue Service, Area 11, Area Director, Denver, 600 17 Street, Denver, CO 80202-2490." Am. Compl. ¶ IV. This allegation, without more, does not satisfy the statutory exhaustion requirement, where, as here, failure to exhaust has been asserted in a motion to dismiss. Plaintiffs have not provided a copy of their administrative claim, nor have they alleged that the Secretary has acted on their claim, nor have they indicated the date on which it was filed. Indeed, it is unclear whether plaintiffs filed that claim prior to initiating this suit, as plaintiff's original complaint makes no mention of it.*fn2 Accordingly, because plaintiffs "have produced no evidence that they pursued, let alone exhausted, the proper administrative remedies, they cannot avoid exhaustion-based dismissal." Erwin v. United States, Civ. No. 05-1698, 2006 WL 2660296, at *12 (D.D.C. Sept. 15, 2006)(Kollar-Kotelly, J.). See also Waller v. United States, Civ. No. 06-1112, 2006 WL 2472781, at *2 (D.D.C. July 7, 2006)(Huvelle, J.). Accordingly, plaintiffs' damages claim must be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).*fn3
Plaintiffs have attempted to salvage their damages claim by asserting jurisdiction under the Administrative Procedures Act, the All Writs Act, the Freedom of Information Act (FOIA), the Privacy Act, and mandamus. See Am. Compl. ¶¶ II.A.2.-4., II.C.1.b.2-4. Section 7433, which contains an exclusivity provision, precludes those claims. See, e.g., Ross v. United States, 460 F.Supp.2d 139, 148 (D.D.C. 2006)("[B]ased on the plain language of section 7433(a) and its legislative history, section 7433 bars plaintiffs' claim for damages to the extent plaintiffs seek such relief under the APA, the All Writs Act, the Mandamus Act, FOIA, the Privacy Act. . . ."). See also Maki v. United States, Civ. No. 06-1564, 2006 WL 3791377, *5 (D.D.C. Dec. 22, 2006)(same).*fn4
For the foregoing reasons, defendant's motion to dismiss will be granted. An appropriate order accompanies this memorandum.