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Kim v. United States

May 26, 2009

CALVIN KI SUN KIM AND CHUN CHA KIM, PLAINTIFFS,
v.
UNITED STATES, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Pro se Plaintiffs Calvin Ki Sun Kim and Chun Cha Kim bring suit, in an action for unspecified damages, against the United States, the Commissioner of the Internal Revenue Service ("IRS"), and several IRS agents, both known and unknown, alleging noncompliance with various statutes and involvement in an "ongoing campaign of harassment by correspondence." Complaint, Docket No. [1], at 6. Specifically, Plaintiffs' 21-count Complaint names as Defendants the United States, IRS Commissioner Douglas Shulman, and IRS Agents Dennis L. Parizek, Scott B. Prentky, A. Chow as well as "Unknown" Agents 1-4 (collectively, "Individual Defendants") (with the United States, "Defendants"), and it asserts both due process violations and violations of the Taxpayer Bill of Rights, 26 U.S.C. § 7433. Presently before the Court is Defendants' [4] Motion to Dismiss for, inter alia, lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court shall GRANT Defendants' Motion.

I. BACKGROUND

A. Factual Background

Since 2002, Plaintiffs Calvin Ki Sun Kim and Chun Cha Kim-both citizens of Hawaii-have continuously corresponded with the IRS regarding payment of their federal income taxes. See Compl. at 2-3, 25.*fn1 According to Plaintiffs, they first received notice of unpaid taxes due in a letter from the IRS dated January 14, 2002. Id. at 26. That letter charged Plaintiffs with filing frivolous tax returns for the years 1998 and 1999 and levied a penalty. Id. It also provided them with a Form 6335, or a "Statement of Tax Due the Internal Revenue Service." Id. Plaintiffs replied with a letter dated February 21, 2002 requesting that the penalties be rescinded because their "intention for filing was not to be frivolous." Id. By letter dated September 20, 2002, the IRS reported that Plaintiffs had also failed to file 1040 Forms regarding their individual income-tax returns for the year 2000. Id. at 25. The letter included a proposed income tax assessment. Id. Plaintiffs responded on March 4, 2003 with a letter "explain[ing] why [they] were not required to file an Individual Income Tax Return" and providing a copy of their "Annual Statement for 2000." Id. However, the Complaint does not set forth the grounds for Plaintiffs' claimed exemption.

On October 14, 2003, IRS Agent Parizek notified Plaintiffs that the IRS lacked records of their income tax returns for 1999.*fn2 Id. at 26. Five days later, the IRS forwarded a "Notice of Deficiency" for the tax year 2001. Id. at 27. Plaintiffs responded on October 29, 2003 by sending a summary of 26 C.F.R. 1.6001-1(d) under the heading "Implied Legal Notice: Violation of Due Process for Failure to Provide Notice(s) to Keep Records and File Returns."*fn3 Id. On January 18, 2004, Plaintiffs also provided the IRS with their "2001 Annual Statement." Id. Nearly a year later, on January 12, 2005, IRS Agent Prentky issued Plaintiffs a Notice of Deficiency for the tax years 2002 and 2003. Id. at 28. Plaintiffs answered with a January 19, 2005 "Notice of Dispute to Contest Your Notice of Deficiency and Notice to Rescind for Lack of Valid Assessment." Id. On July 15, 2005, IRS Agent Chow mailed Plaintiffs a Form 2039 Summons requesting that they appear before the local IRS office to account for their income tax payments over the years 1999, 2000, and 2001. Id. at 29.

B. Procedural Background

Based on the foregoing facts, Plaintiffs seek money damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) for multiple alleged due process violations, as well as damages pursuant to Internal Revenue Code ("IRC"), 26 U.S.C. § 7433 (relating to civil damages for certain unauthorized tax collection activities). See generally Compl. The Complaint asserts 21 boilerplate "counts" against Defendants and is one of the many similar lawsuits brought in this jurisdiction by tax protesters alleging a variety of forms of misconduct by the IRS. See Smith v. United States, 475 F. Supp. 2d 1, 5 n.1 (D.D.C. 2006) (collecting cases).*fn4

The Complaint's first 18 counts are styled as Bivens causes of action and allege misconduct under various provisions of the IRC and the Code of Federal Regulations. These include:

* Failure to notify Plaintiffs of the requirement to keep records, make statements, or file tax returns, in violation of 26 U.S.C. § 6001, 26 C.F.R. § 1.6001-1(d) (Counts 1 and 2);

* Failure to prepare Substitutes for Returns in Plaintiffs' names, in violation of 26 U.S.C. §§ 6020(a) & (b)(1), 26 C.F.R. § 301.6020-1(a) & (b) (Counts 3, 4, 5 and 6);

* Failure to disclose Plaintiffs' returns to their representatives upon request, in violation of 26 U.S.C. § 6103, 26 C.F.R. § 301.6103(c)-1 (Counts 7 and 8);

* Misinterpretation of the Internal Revenue Code relating to the use of social security numbers in violation of 26 U.S.C. § 6109 (Count 9);

* Failure to notify as well as failure to promulgate a regulation for citizens who do not provide social security information, in violation of 26 C.F.R. ยงยง ...


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