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Pollinger v. United States

March 25, 2008

HARRY POLLINGER, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Pro Se Plaintiff Harry Pollinger brings this action against the United States, as well as Internal Revenue Service ("IRS") employees Gregory Collier, C. Sherwood, and R.A. Mitchell regarding alleged misconduct by the IRS in the collection of taxes.*fn1 Plaintiff also seeks orders commanding Defendants "to cease and desist in their illegal actions," and to release a Notice of Federal Tax Lien issued on Plaintiff's property. Compl. at 55. Plaintiff primarily seeks relief pursuant to the damages cause of action included in the Taxpayer Bill of Rights, 26 U.S.C. § 7433. See generally Compl. Plaintiff also invokes a variety of other statutory authorities in support of his claims for relief, including the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702; the All Writs Act, 28 U.S.C. § 1651; two criminal statutes--26 U.S.C. § 7214 and 18 U.S.C. § 2311; various provisions of the Internal Revenue Code ("Code"); and 28 U.S.C. § 2410.

Id. at 2-3; ¶¶ 149-54.*fn2 Finally, Plaintiff purports to bring claims pursuant to the First, Fourth, Fifth, Sixth, Fourteenth, and Sixteenth Amendments to the United States Constitution. Id. at 1; ¶¶ 136-48; 180-204.

Currently pending before the Court is Defendants' [7] Motion to Dismiss, which seeks to substitute the United States as the sole Defendant in this action, and argues that this case should be dismissed for a variety of reasons, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon a searching examination of the filings submitted by each party, the attached exhibits, the relevant case law, and the entire record herein, the Court shall grant-in-part and deny-in-part Defendants' Motion to Dismiss. Specifically, the Court agrees that the United States is the sole proper Defendant to this action and shall dismiss Gregory Collier, C. Sherwood and R.A. Mitchell as defendants. Further, the Court agrees that it lacks jurisdiction over the following Counts of Plaintiff's Complaint, which shall be dismissed pursuant to Rule 12(b)(1): Counts X, XVIII, XIX, XX, and XXI. The Court concludes that the following Counts of Plaintiff's Complaint fail to state claims, and shall be dismissed pursuant to Rule 12(b)(6): Counts I, IV, V, VI VII, IX, XI, XII, XIII, XIV, XV, XVI, and XVII. As to the remaining Counts of Plaintiff's Complaint--Counts II, III, and XVIII--the Court cannot conclude that Plaintiff has failed to exhaust his administrative remedies based on the record before it. The Court shall therefore deny without prejudice Defendants' motion to dismiss only as to Counts II, III, and XVIII of Plaintiff's Complaint, and shall order the United States, on or before April 25, 2008, to either move to dismiss those claims for failure to exhaust administrative remedies or, in the alternative, to notify the Court that no such argument shall be raised, so that this action may proceed.

I. BACKGROUND

Plaintiff filed his Complaint on November 2, 2006. Plaintiff's Complaint represents one of dozens of lawsuits brought in this jurisdiction by tax protestors--allegedly proceeding pro se--asserting a variety of forms of misconduct by the IRS.*fn3 Unlike the majority of the complaints in those other actions, however, Plaintiff's Complaint includes at least some particularized facts specifically pertaining to Plaintiff Harry Pollinger. See generally Compl.

According to Plaintiff, he is domiciled in Destin, Florida, id. at 4, and "is the fee simple owner of real property located at 276 Baywinds Drive, Destin, Florida," id. ¶ 152. The factual allegations in Plaintiff's Complaint involve a series of events relating to tax liens and levies issued by the IRS. The allegations are somewhat opaque, largely because the Complaint describes the various liens, levies, and related correspondence in chronological order and uses inconsistent terms to refer to various documents. Based on the Court's review of the Complaint, however, it appears that the IRS issued the following liens and levies:

* On February 28, 2005, Gregory Collier and C. Sherwood issued a Notice of Federal Tax Lien on Plaintiff's property in Destin, Florida, in the amount of $14,125.65 for tax years 2000 and 2001. Id. ¶¶ 12; 150-53.

* On May 11, 2005, Gregory Collier served Fairfield Resorts, Inc. (presumably Plaintiff's employer) with a Notice of Levy on Wages, Salary, and other Income in the amount of $15,787. Id. ¶ 14.

* Both the Notice of Federal Tax Lien and Notice of Levy listed "1040" as the "Kind of Tax" at issue. Id. ¶ 15.

* On April 26, 2006, Plaintiff received three Notices of Levy issued to Georgia Commercial Investors Inc., Destin Bank (now known as Whitney National Bank), and the Cendant payroll department (the parent company of Plaintiff's employer), as well as one Notice of Levy on Wages, Salary and Other Income issued to Plaintiff's employer in the amount of $15,084.67. Id. ¶ 27.

* On May 1, 2006, Plaintiff received a letter from Whitney National Bank stating that $6,614.40 had been seized from his bank account. Id. ¶ 28.

* On June 2, 2006, Plaintiff received a letter from the Cendant payroll department stating that $5,578.69 had been seized from his wages. Id. ¶ 30. According to Plaintiff, the "year-to-date amount seized [presumably as of Plaintiff's November 2, 2006 Complaint] is $9,528.06 since 6/2/06 from the IRS Levy and for Federal Income Tax is $2,359.09 totaling $11,887.78." Id.

* On August 15, 2006, Plaintiff received a letter from Gregory Collier and R.A. Mitchell that included an August 3, 2006 Notice of Federal Tax Lien in the amount of $35,857.07 for tax years 2000, 2001, and 2002. Id. ¶ 24.

Plaintiff's Complaint alleges that he reacted to these various liens and levies by sending a variety of documents to various IRS offices and employees, including: (1) a September 28, 2005 "Notice and Demand to Issue Certificate of Release for Notice of Federal Tax Lien," along with an affidavit and a variety of exhibits, directed to Gregory Collier, C. Sherwood, and various departments of the IRS, id. ¶¶ 16;*fn4 (2) an October 3, 2005, "Notice and Affidavit of Facts and Correspondence to Collection Due Process" directed to Appeals Settlement Officer Thomas M. Owens, id. ¶ 17; (3) an October 21, 2005, "Notice and Demand for Abatement of Alleged Federal Income Tax Liability" id. ¶ 18; (4) a November 7, 2005 "Notice of Protest and Demand for Determination" directed at Appeals Team Manager Edd Esterlings, id. ¶ 19; (5) two November 14, 2005 "Notice of Federal Tax Lien Dispute Letters," directed to Gregory Collier and C. Sherwood, id. ¶ 21; (6) a March 18, 2006 "Verified Affidavit of Protest to Contest Notice Disallowing Claim for Abatement and Request for Appeal of Decision," id. ¶ 26; (7) a May 31, 2006 "Constructive Notice and Demand to Cease and Desist Withholding of Federal Income Tax -- Evidence of No Liability," directed to R.A. Mitchell and "other pertinent departments of the IRS," id. ¶ 29; (8) an August 10, 2006, "Notice and Demand for Abatement of Interest and Penalties," id. ¶ 34; (9) a September 11, 2006 "Notice and Demand to Release or Withdraw Notice of Federal Tax Lien, directed to Gregory Collier, id. ¶ 35; (10) a September 26, 2006 "Verified Notice of Harassment and Pending Litigation," directed to Gregory Collier, id. ¶ 37; and (11) a September 29, 2006 "Verified Notice of Absolute Default and Notice to Contest and Abate Frivolous Filing Penalty," id. ¶ 38.*fn5

Plaintiff's use of inconsistent terminology in describing correspondence makes it unclear precisely what responses he alleges he received to the foregoing documents. Generally, Plaintiff alleges that he received the following documents from various IRS employees: (1) a December 14, 2005 denial of his "Request for Withdrawal of Notice of Federal Tax Lien," id. ¶ 22; (2) a December 19, 2005 letter from Mr. Parizek stating that the information Plaintiff sent in his Claim for Refund and Abatement for the year 2002 was frivolous and giving Plaintiff 30 days to correct his position, id., to which Plaintiff responded with a January 10, 2006 "Verified Affidavit of Intent -- Demand for Proof of Claim and Notice of Disputed Claim of Frivolous Filing," id. ¶ 24;*fn6 (3) a February 16, 2006, denial of Plaintiff's Claim for Abatement of Penalties for tax years 2000 and 2001, id. ¶ 25; (4) a second response from Mr. Parizek on June 6, 2006, again indicating that Plaintiff's filing was frivolous, id. ¶ 31; and (5) a September 21, 2006 letter from Appeals Officer Betty Landau denying Plaintiff's Request for Abatement of Interest and Penalties for 2000 and 2001, id. ¶ 36.

Based on these allegations, Plaintiff enumerates 21 "Counts." See id. ¶¶ 42-204. Each count begins with the boilerplate assertions that: (1) Gregory Collier and C. Sherwood "conspired with intent to deprive Plaintiff of his Constitutionally-protected Rights, did in bad faith and under color of law intentionally and recklessly cause a procedurally invalid 'Notice of Federal Tax Lien' to issue against Plaintiff in the amount $14,125.65 for tax years 2000, and 2000 [sic];" see, e.g., id. ¶ 43; (2) Gregory Collier and R.A. Mitchell engaged in the same conduct by causing "a procedurally invalid 'Notice of Federal Tax Lien' to issue against Plaintiff in the amount of $35,857.07 for 2000, 2001 and 2002," see, e.g., id.; and (3) Gregory Collier engaged in the same conduct by causing "a procedurally deficient 'Notice of Levy' to issue against Plaintiff in the amount of $15,084.67 for tax years 2000 and 2001 ($6,614.40 by WHITNEY NATIONAL BANK and $9,528.06 to be seized by [CENDANT] PAYROLL DEPARTMENT) causing an amount of [] $16,142.46 to be seized," see, e.g., id. ¶ 44. Each count then continues by stating that "with willful disregard for the internal revenue laws," Defendants engaged in a variety of actions. See, e.g., id. These include:

* Failing to notify Plaintiff of an obligation to file tax returns, in violation of 26 U.S.C. § 6001, 26 C.F.R. § 1-6001-1, and 301.6001-1 (Count I);

* Failing to issue a statutory notice and demand prior to issuing the various notices of levies and liens, in violation of 26 U.S.C. §§ 6303 and 6331(a) (Count II);

* Failing to verify, establish or identify the statutory tax liability imposed against Plaintiff's property rights, in violation of 26 U.S.C. § 6331(j)(2)(A) (Count III);

* Failing to suspend or abate interest and penalties where the basis of Plaintiff's tax liability was not established, in violation of 26 U.S.C. § 6404(a) (Count IV);

* Failing to make a tax assessment prior to issuing the various notices of liens and levies, in violation of 26 U.S.C. §§ 6201(a) and 6202 (Count V);

* Failing to establish and record Plaintiff's alleged tax liability prior to issuing the various Notices, in violation of ...


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