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Wallace v. United States

June 3, 2008


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 5, 6



The plaintiff brings suit under 26 U.S.C. § 7433 against the United States alleging that the Internal Revenue Service ("IRS") levied her pension fund and illegally collected $53,895.78 to satisfy a federal income tax deficiency of $6,573.00. The defendant moves the court to dismiss the case for failure to state a claim, or alternatively, to transfer the case to the plaintiff's district of residence. In response, the plaintiff asserts that this court is the proper venue for this case and that the claim is properly brought under § 7433. Pursuant to 28 U.S.C. § 1402(a), the proper venue for this case is Wyoming, the judicial district in which the plaintiff resides. And, based on the plaintiff's allegations and the supporting documentation, the court concludes that the interest of justice favors transfer of the case rather than dismissal. Therefore, the court grants the defendant's motion to transfer venue and denies its motion to dismiss.


The plaintiff, Marilyn Wallace, is a resident of Buffalo, Wyoming and a retiree of the Michigan Public School System. Compl. ¶¶ 5, 7. On May 14, 2001, the IRS issued a Notice of Levy to the Michigan Public School Employees Retirement System due to federal income tax deficiencies owed by the plaintiff for the years of 1985-1994 in the amount of $6,573.00. Pl.'s Response in opposition to the Def.'s Mot., Ex. D. On September 25, 2001, the IRS levied the plaintiff's teaching pension, and the state of Michigan began withholding $945.54 per month, an amount she alleges to be fifty-five percent of her monthly pension. Id. ¶ 17 & Ex. E. The monthly levies continued long after the tax deficiency had been satisfied, for a cumulative amount of $53,895.78.*fn1 Id., Ex. E.

The plaintiff alleges that voluminous written and verbal correspondence occurred between her and "numerous collection officers" regarding the levy. Compl. ¶¶ 10, 11. On May 25, 2006, the plaintiff allegedly met with IRS Agent Thomas Bentley in Billings, Montana, and the IRS terminated the levy shortly thereafter. Id. ¶ 11. The plaintiff filed two Administrative Claims for Unauthorized Collection Actions with the IRS on July 5 and August 28, 2006. Id. ¶ 14 & Ex. B. In an apparent effort to correct the overcharge, the IRS sent the plaintiff two checks for a total amount of $10,954.18 on March 16, 2007. Id. ¶ 12 & Ex. A.

The plaintiff now seeks to recover the remainder of the money she claims the IRS improperly collected from her pension after the satisfaction of the deficient amount.*fn2 On December 12, 2007, the defendant filed a motion to dismiss arguing that the plaintiff has failed to state a cause of action under 28 U.S.C. § 7433 because she alleges the IRS improperly assessed, rather than collected, her taxes. Def.'s Mot. at 3. The defendant alternatively moves to transfer the case to the District of Wyoming asserting that civil actions against the United States for the recovery of any internal-revenue tax are properly brought in the district where the plaintiff resides. Id. at 4. This court now simultaneously addresses the defendant's motion to dismiss and motion to transfer venue.


A. Legal Standard for Venue under 28 U.S.C. § 1391(e) and Transfer Pursuant to 28 U.S.C. § 1404(a)

When federal jurisdiction is not premised solely on diversity and a defendant is an officer, employee, or agency of the United States, 28 U.S.C. § 1391(e) controls venue, establishing that venue is proper in: any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e).

If, upon objection of a party, the court concludes that venue is improper, it may transfer the case pursuant to 28 U.S.C. § 1406. In an action where venue is proper, 28 U.S.C. § 1404(a) nonetheless authorizes a court to transfer a civil action to any other district where it could have been brought "for the convenience of parties and witnesses, in the interest of justice[.]" 28 U.S.C. § 1404(a). Section 1404(a) vests "discretion in the district court to adjudicate motions to transfer according to [an] individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, ...

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