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McKean v. United States

June 30, 2008


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


Plaintiff Jay C. McKean has filed suit pro se alleging that the Internal Revenue Service ("IRS") improperly levied against his credit union bank account and social security benefits in the total amount of $22,900 without sending him a notice of deficiency. Plaintiff seeks relief under 28 U.S.C. § 2410 to quiet title to the levied funds, a refund, and an order to release the levies.*fn1 Defendants have filed a motion for summary judgment.*fn2 For the reasons stated herein, defendants' motion will be granted.


Plaintiff failed to file tax returns for 1999, 2000, 2001, 2002, and 2003. (Defs.' Exs. 1-5.)

The IRS determined plaintiff's tax liability and issued notices of deficiency for each year. (Id.) On May 1, 2007, the IRS served a notice of levy for $19,084.86 on Avanta Federal Credit Union. (Pl.'s Ex. C.) By letter dated May 4, 2007, Avanta notified plaintiff that his funds had been levied and that it had sent $12,660.37 to the IRS in compliance with the levy. (Id.) On May 11, 2007, plaintiff filed an appeal of the notice of levy seeking return of the levied funds and release of the levy. (Pl.'s Ex. A.) The IRS determined that the levy was appropriately issued and notified plaintiff of its determination in a letter dated July 11, 2007. (Pl.'s Ex. B.)

In January 2005, the IRS began levying against plaintiff's social security benefits. (Pl.'s Ex. E.) By letter dated April 9, 2007, the Social Security Administration notified plaintiff that it intended to reduce his benefits by $367.80 each month in response to the notice of levy. (Pl.'s Ex. D.) Plaintiff alleges that the amount of $7,700 was seized from his social security benefits by levy. (Compl. ¶ 5.)

Plaintiff's tax liabilities have been fully paid for tax years 1999, 2000, 2001, and 2002. (Defs.' Exs. 1-4.) As of March 3, 2008, plaintiff still owed $3,110.01 for 2003. (Defs.' Ex. 14.)


Plaintiff's complaint raises seven counts, each of which alleges that the IRS's levies are invalid. In Count I, plaintiff seeks to quiet title to the property seized from him by IRS levies pursuant to 28 U.S.C. § 2410. (Compl. 12.) Count II alleges that the IRS seized his property in violation of 26 U.S.C. §§ 6212, 6213(a), and 6330(e). (Id. 15.) Count III alleges that defendant violated plaintiff's rights under the Due Process Clause of the Fifth Amendment. (Id. 16.) Count IV alleges that defendant is entitled to a return of the seized property and damages pursuant to 26 U.S.C. §§ 7431 and 7433. (Id. 16-17.) Count V alleges a violation of plaintiff's rights under the "Just Compensation Clause" of the Fifth Amendment. (Id. 18.) Count VI asserts that the seizure of plaintiff's property "constitutes a bill of attainder at Article I, Section 9 Clause 3 and Article I, Section 10 Clause I." (Id. 20.) Finally, Count VII, alleges that defendants' administrative seizure of plaintiff's property is an intentional misapplication of the internal revenue laws. (Id. 21.)

Defendants have filed a motion for summary judgment on all counts. Summary judgment is appropriate if "there is no genuine issue as to any material fact" and the "moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). When considering a motion for summary judgment "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. The non-moving party's opposition must, however, consist of more than mere unsupported allegations or denials. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Rather, he must provide evidence that would permit a reasonable factfinder to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Where, as here, the nonmoving party bears the burden of proof on an issue, the movant need not produce any evidence showing the absence of a genuine issue of material fact, but instead the movant may discharge its burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. The Court will address each of plaintiff's claims in turn.

I. Counts I and II Fail Because the Issuance of the Levies Was Procedurally Valid

In Count I, plaintiff seeks to quiet title to money seized from him by IRS levies pursuant to 28 U.S.C. § 2410. A claim brought under § 2410 is limited to a challenge to the legality of the procedures used to enforce a tax lien and may not be used to attack the validity of the tax assessment. See Aqua Bar & Lounge Inc. v. Dept. of Treasury, 539 F.2d 935, 939 (3d Cir. 1976). Plaintiff alleges that the IRS's levies are invalid because it "failed to comply with the procedural requirements of 26 U.S.C. §§ U.S.C. 6212 and 6213 and never caused Notices of Deficiency to be served for tax years 1999 through 2003 . . . ." (Compl. ¶ 16.) In Count II, plaintiff realleges that the IRS issued the levies in violation 26 U.S.C. §§ 6212 and 6213 and further asserts that the IRS acted in violation of § 6330(e). (See Compl. 15.) All of these claims fail because the IRS's levies were procedurally valid.

Pursuant to 26 U.S.C. § 6212, upon determining that a tax deficiency exists, the IRS must send the taxpayer a notice of deficiency at the taxpayer's last known address. See 26 U.S.C. § 6212(a) & (b). Section 6213 provides that a taxpayer has 90 days after the mailing of the notice of deficiency to file a petition in the Tax Court for a redetermination of the deficiency. See 26 U.S.C. § 6213(a). It also provides that no assessment or tax collection activity may be done until the expiration of the 90-day period, or if a Tax Court petition is filed, until after a decision is reached. Id.

In this case, the IRS sent plaintiff notices of deficiency at his last known address for each tax year at issue. On June 4, 2003, the IRS sent notices of deficiences for tax years 1999 and 2000. (See Defs.' Exs. 6, 7.) On October 24, 2003, July 27, 2004, and June 21, 2005, the IRS sent notices of deficiencies for tax years 2001, 2002, and 2003 respectively. (See Defs.' Exs. 10, 12, 13.) Certified transcripts indicate that the IRS did not assess plaintiff's tax liabilities until November 3, 2003 for tax years 1999 and 2000 and until March 29, 2004, December 20, 2004, and February 6, 2006 for years 2001, 2002, and 2003, respectively. (See Defs.' Exs. 1-5.) Furthermore, the two levies that plaintiff challenges were served on May 1, 2005 and on April 9, 2005. The record therefore establishes that all assessment and tax collection activity occurred well ...

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