The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiffs Norman E. Curfman and Carole M. Curfman filed a pro se Complaint against the United States alleging that seven named and "other unknown agents" of the Internal Revenue Service ("IRS") intentionally and/or negligently disclosed confidential tax information, in violation of 26 U.S.C. § 7431. Compl ¶ 1. This claim is one of numerous boilerplate complaints that have been filed in the U.S. District Court for the District of Columbia complaining of disclosure violations under § 7431. See, e.g., Evans v. United States, 478 F. Supp. 2d 68 (D.D.C. 2007); Powell v. United States, 478 F. Supp. 2d 66 (D.D.C. 2007); Koerner v. United States, 471 F. Supp. 2d 125 (D.D.C. 2007). Plaintiffs essentially argue that they are entitled to damages because IRS agents recorded "eleven purported Notices of Tax Lien" with the County Recorder/Register of Deeds of Franklin County, Pennsylvania and that these liens wrongfully disclosed information which subjected the Plaintiffs to the possibility of identity theft and caused Plaintiffs "substantial mental and emotional distress." Compl. ¶¶ 4-7.
The Government has filed a motion to dismiss the Complaint for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim upon which relief can be granted. See United States' Mot. to Dismiss & Supp. Mem. ("Def.'s Mot.") [Dkt. #4]. After careful review of the Complaint and Plaintiffs' Opposition to the Government's Motion to Dismiss, and recognizing that Plaintiff is proceeding pro se in this matter, the Court finds that the Complaint must be dismissed because: (1) the plain language and legislative history of § 7433 bars a claim under § 7431 where the alleged IRS disclosure is "in connection with any collection of Federal Tax"; (2) even if the Court read the Complaint as being filed under § 7433, the Plaintiffs failed to exhaust their administrative remedies, a prerequisite to filing a suit for damages in district court; and (3) the Plaintiffs' claim that the IRS violated 26 U.S.C. § 6103 by recording the lien with the County Recorders office is incorrect.
The Government moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and, in the alternative, pursuant to Rule 12(b)(6). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Under Rule 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, 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). It is well established that, 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 consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "While a complaint attacked by a rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' for 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise the right of relief above a speculative level." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The Court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). But the Court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242.In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
A. Plaintiffs' Complaint is Not Actionable Under § 7431
Plaintiffs invoke the subject matter jurisdiction of this Court pursuant to 26 U.S.C. § 7431, which provides a cause of action to taxpayers for the knowing and/or negligent unlawful disclosure of confidential tax return information. Compl. ¶¶ 1-2. That statute provides:
If any officer or employee of the United States knowingly, or by reason of negligence, inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of [26 U.S.C.] section 6103, 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. § 7431(a)(1). Section 6103 of the Internal Revenue Code provides that: "subject to specific exceptions, tax returns and return information must be kept confidential." Glass v. United States, 480 F. Supp. 2d 162, 164 (D.D.C. 2007). Such return information includes, inter alia: "taxpayer's identity. or any other data received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence or possible existence of liability." 26 U.S.C. § 6103(b)(2). The term "taxpayer's identity" is defined in § 6103 as "the name of the person with respect to whom a return is filed, his mailing address, his taxpayer identifying number... or a combination thereof." 26 U.S.C. § 6103(b)(6). Based on this definition of taxpayer identity, Plaintiffs allege that the named and unnamed IRS agents violated § 6103 by displaying their names and identifying numbers, and thereby caused Plaintiffs "substantial personal embarrassment, loss of good will, [and] loss in credit." Compl. ¶¶ 4, 6, 7, 18.
In addition to § 7431, a separate cause of action exists under 26 U.S.C. § 7433 for a violation of § 6103 connected with any tax collection activity. Shwarz v. United States, 234 F.3d 428, 432 (9th Cir. 2000). Section 7433 provides:
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. Except as provided in § 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.
26 U.S.C. § 7433(a) (emphasis added). In its Motion to Dismiss, the Government argues that the exclusivity clause in § 7433 makes it the only statute under which a plaintiff can recover for "unauthorized collection actions." Def.'s Mot. at 5. Plaintiffs argue in their Opposition that Congress intended for § 7433 to "coexist" with § 7431 and that a Plaintiff could recover for any disclosure of tax return information under either § 7431 or§ 7433. Pls.' Opp. to Def.'s Mot. (Pls.' Opp.) at ...