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Wesselman v. United States

August 17, 2007


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Herman Alphonse Wesselman has filed a pro se complaint raising forty-one boilerplate "counts" that "defendant, through principals, officers, agents, and/or employees of [the] Internal Revenue Service" ("IRS") has "disregard[ed]" the Internal Revenue Code. (E.g., Compl. at 4.) For each count, plaintiff seeks"damages in accordance with [26 U.S.C. §] 7433."*fn1

(Id. at 18.) The government has filed a motion to dismiss and, for the reasons set forth herein, the motion will be granted.


The forty-one counts in plaintiff's complaint can be grouped into nine general categories:

(1) counts alleging failure to notify plaintiff of his obligation to keep records and file tax returns, failure to prepare or execute substitute tax returns on his behalf when he failed to file tax returns, and improper use of his Social Security number (Counts 1--8 and 10); (2) counts alleging failure to disclose plaintiff's tax returns or substitute tax returns, records of assessments made against him, or copies of such records (Counts 9 and 16--17); (3) counts alleging the assessment of taxes against plaintiff in amounts that were not properly assessable against him or were not properly recorded or verified (Counts 11--15 and 33); (4) counts alleging failure to satisfy statutory duties to promulgate and implement various procedures and regulations (Counts 18--19); (5) counts alleging that defendant exceeded its authority under 26 U.S.C. § 6301 to collect taxes (Counts 20--26); (6) counts alleging that defendant failed to send notices required under 26 U.S.C. § 6303 (Counts 27--29); (7) a count alleging harassment in connection with the collection of taxes (Count 30); (8) a count alleging that defendant denied plaintiff a hearing to which he was entitled under 26 U.S.C. §§ 6320 and 6330 (Count 31); and (9) counts alleging that defendant improperly asserted tax liens or claims against plaintiff (Counts 32 and 34--41).


I. Lack of Jurisdiction

A plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. E.g., Martens v. United States, No. 05-1805, 2007 WL 2007580, at *1 (D.D.C. July 6, 2007). Here, plaintiff seeks to establish jurisdiction based on the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and § 7433.*fn2 (See Compl. at 2--3.) It is well settled, however, that the APA does not waive sovereign immunity with respect to suits for money damages.*fn3 See, e.g., Buaiz v. United States, 471 F. Supp. 2d 129, 138 (D.D.C. 2007) ("By its express terms, . . . the APA does not waive immunity for claims seeking money damages."). Thus, plaintiff's claims must be dismissed for lack of jurisdiction unless they fall within the waiver of sovereign immunity provided in § 7433. See, e.g., id. at 134 ("[F]ederal courts lack subject matter jurisdiction over suits against the United States in the absence of a waiver.").

For the reasons discussed by the Honorable Rosemary M. Collyer in Buaiz, the waiver of sovereign immunity provided in § 7433 is limited to claims that "aris[e] from the collection of income taxes." Id. at 136 (emphasis added); see id. at 135--36. Section 7433 does not give the Court jurisdiction over "[c]laims that the IRS has incorrectly determined the amount of taxes owed" or any other claims that do not directly arise from the IRS's collection activities. Id. at 136.

Here, as defendant has cogently argued and plaintiff himself appears to concede, many of plaintiff's claims fall outside § 7433's limited waiver of sovereign immunity. (See Mem. in Supp. at 3 (explaining that Counts 1--18 and 33 do not arise from collection activity);*fn4 Reply at 4 (failing to rebut defendant's argument and arguing instead that "[d]efendant [has] fail[ed] to challenge the Court's jurisdiction under . . . the [APA]," the Federal Records Act, or the National Archives Act).) The claims in the first group (Counts 1--8 and 10) arise from defendant's alleged failure to notify plaintiff of his obligation to keep records and file tax returns, failure to prepare substitute tax returns on plaintiff's behalf, and improper use of plaintiff's Social Security number. These claims do not arise from efforts to collect taxes. See Buaiz, 471 F. Supp. 2d at 136 (dismissing Counts 1, 2, and 4). Similarly, the claims in the second group (Counts 9 and 16--17), which allege that defendant failed to disclose returns and assessments upon plaintiff's request, fall outside § 7433's waiver of sovereign immunity. See id. (dismissing claims "related to the IRS's alleged failure to disclose to [the plaintiff] . . . tax returns, assessments, and other tax records" for lack of jurisdiction). The claims in the third group (Counts 11--15 and 33) also fall outside § 7433's sovereign immunity waiver because they "arise from the assessment of taxes." Id. (emphasis added). The claims in the fourth group (Counts 18--19) fall outside § 7433's waiver of sovereign immunity because claims based on an alleged failure to promulgate regulations and procedures do not implicate § 7433's prohibition against collection activity that disregards provisions of, or regulations under, the Internal Revenue Code. Thus, because Counts 1--19 and 33 do not arise from tax collection activity, those claims must be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction. See id. at 135--36.

II. Failure to State a Claim

Plaintiff's remaining claims (Counts 20--32 and 34--41) must be dismissed under Rule 12(b)(6).*fn5 As the Supreme Court recently clarified, although a plaintiff need not provide "detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964--65 (2007) (alteration in original) (citations omitted); see, e.g., Miller v. United States, No. 06-1250, 2007 WL 2071642, at *2 (D.D.C. July 19, 2007) ("While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations.").

Plaintiff's claims here are entirely devoid of factual allegations. In Counts 20--26, he simply alleges that "[b]y disregard of" various parts of the Code of Federal Regulations, defendant "failed to implement the provisions of Internal Revenue Code section 6301." (Compl. 11--26). Counts 27--29 offer similarly conclusory allegations that defendant "disregard[ed]" or "failed to implement" § 6303.*fn6 (Id. at 13--14.) Count 30, which states that defendant "engaged in 'conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any unpaid tax'" (id. at 14 (quoting 26 U.S.C. § 6304(b))), parrots statutory language but includes no factual bases from which the Court can infer that employees of the IRS engaged in conduct that could be characterized as harassing, oppressive, or abusive. Cf. 26 U.S.C. § 6304(b)(1)--(4) (2006) (listing as examples of such conduct "[t]he use or threat of use of violence or other criminal means to harm" a person's body, reputation, or property; "[t]he use of obscene or profane language;" making telephone calls "repeatedly and continuously with intent to annoy, abuse, or harass;" and "the placement of telephone calls without meaningful disclosure of the caller's identity"). In Count 31, plaintiff alleges that defendant "failed to hold a hearing in conjunction with" §§ 6320 and 6330, but he does not allege that he properly requested a hearing as required by statute. (Compl. at 14.) Finally, in Counts 32 and 34--41, plaintiff alleges that ...

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