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Guthery v. United States

August 29, 2007

KENNETH D. GUTHERY PLAINTIFF,
v.
UNITED STATES DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This case is similar in many respects to a number of cases filed in this Court by individuals around the country seeking damages for alleged misconduct by the Internal Revenue Service ("IRS") in collecting taxes. In this case, like many cases in this Court before it, plaintiff asserts that this Court has jurisdiction over plaintiff's claim for damages pursuant to the Taxpayer Bill of Rights ("TBOR"), see 26 U.S.C. § 7433. Plaintiff also claims that the Court has jurisdiction pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 704-706; the All Writs Act, 28 U.S.C. § 1651; the Mandamus Act, 28 U.S.C. § 1361; and 28 U.S.C. § 1331 with respect to unspecified sections of the Federal Records Act, the National Archives Act, the Freedom of Information Act ("FOIA"), and the Privacy Act. Unlike many other cases before this Court, plaintiff alleges that he has exhausted his administrative remedies and has filed a proof of mail delivery with this Court. Pending before the Court is defendant's Motion to Dismiss Amended Complaint. Upon consideration of the motion, response and reply thereto, supplemental briefing and evidence provided by plaintiff, and the applicable law, the Court grants in part and denies in part defendant's motion and directs plaintiff to properly serve defendant or this case will be dismissed.

I. BACKGROUND

Plaintiff filed an Amended Complaint on September 5, 2006 alleging that the "IRS disregarded and continues to disregard certain sections of the Internal Revenue Code while engaged in collection activity regarding plaintiff." Am. Compl. at 1 n.1. Plaintiff enumerates 39 counts of alleged IRS misconduct in his Amended Complaint. These counts are nearly identical to numerous other complaints filed pursuant to the TBOR by other individuals. The Amended Complaint provides few facts and mostly just cites numerous statutory provisions that defendant allegedly violated. Viewing the Amended Complaint in the light most favorable to plaintiff, however, plaintiff claims misconduct by the IRS throughout the tax collection process. Specifically, plaintiff alleges that the IRS failed to notify plaintiff to keep records, make statements, or file returns; failed to prepare "Substitute(s) for Return(s)" in the name of Kenneth D. Guthery; forced plaintiff to use his social security number in violation of the Social Security Act; improperly assessed taxes; failed to record tax assessments; failed to execute summary records of assessment; failed to furnish plaintiff with copies of assessments or summary records of assessment; failed to promulgate regulations to implement the Internal Revenue Code; failed to implement provisions of the Internal Revenue Code; exceeded limits imposed on the collection of taxes; failed to give notice of unpaid tax; engaged in conduct intended to harass or oppress; asserted a tax lien without proper notice; failed to certify notices of lien; and unlawfully disclosed return information by filing notices of lien in stated amounts for which no record exists.

Based on the above allegations, plaintiff seeks an order directing defendant to pay damages pursuant to 26 U.S.C. § 7433 in the amount of $10,000 per disregard of the Internal Revenue Code; directing "replevin of any property taken from Plaintiff without due process of tax law, or compensation at current fair market value, Am. Comp. at 19-20; directing "such other and further damages as the court deems proper, id. at 20; and "enjoining defendants' principals, officers, agents, and/or employees from further acting in disregard of the law or regulation," id.

II. STANDARD OF REVIEW

Defendant has moved to dismiss the Amended Complaint for failure to properly serve the United States and because the Court lacks subject matter jurisdiction over the Amended Complaint.

A. Rule 12(b)(1)

A party seeking adjudication of an action in federal court bears the burden of showing that the court has subject matter jurisdiction over the action. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). "[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 & Coordination Unit, 507 U.S. 163, 164 (1993). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider materials outside the pleadings to determine whether it has jurisdiction. Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).

B. Rule 12(b)(5)

The Court may dismiss a complaint without prejudice for ineffective service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C. Cir. 1997). "'[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.'" Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting Charles Alan Wright & Arthur R. Miller, 4A Federal Practice & Procedure § 1083, at 12 (2d ed. 1987)).

III. DISCUSSION

A. Insufficiency of Service of Process

Defendant argues that the Amended Complaint must be dismissed based on insufficient service of process. Specifically, defendant alleges that plaintiff failed to comply with the dictates of Federal Rule of Civil Procedure 4(c)(2) by serving the summons and complaint himself. See Fed. R. Civ. P. 4(c)(2) (indicating that service of the summons and complaint "may be effected by any person who is not a party"). Defendant also alleges that plaintiff failed to comply with Federal Rule of Civil Procedure 4(i) because his return of service does not indicate that he served the United States Attorney for the District of Columbia by mailing the summons and complaint to the attention of ...


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