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Calvin Ki Sun Kim, and Chun Cha Kim v. United States

January 9, 2012

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 (the "Kims") are tax protesters who commenced this action for unspecified monetary damages against the United States, the Commissioner of the Internal Revenue Service (the "IRS"), and a series of known and unknown IRS Agents, alleging that the IRS violated the Taxpayer Bill of Rights, failed to comply with various statutory duties, and perpetrated an "ongoing campaign of harassment" against them. When presented with a motion to dismiss earlier in these proceedings, this Court dismissed the action in its entirety. Subsequently, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's decision in part and reversed in part, remanding the action for further proceedings on two of the counts asserted in the Kims' twenty-one count [1] Complaint-specifically, Counts 20 and 21, which are asserted against the United States alone, arise under Internal Revenue Code*fn1 § 7433, and allege violations of Internal Revenue Code §§ 6303 and 6304, respectively.

There are currently two motions pending before the Court: the United States' [21] Renewed Motion to Dismiss and the Kims' [25/27] Motion for Leave to File a Surreply. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT the United States' Renewed Motion to Dismiss, DENY the Kims' Motion for Leave to File a Surreply, and DISMISS this action in its entirety.

I. BACKGROUND

A. Factual Background

From 1998 through 2003, the Kims, both citizens of Hawaii, did not regularly file tax returns and, when they did file, their returns omitted required information. Since 2002, the Kims have continuously corresponded with the IRS regarding payment of their federal income taxes and their frivolous or missing returns.

According to the Kims, they first received notice of unpaid taxes in a letter from the IRS dated January 14, 2002. That letter charged the Kims with filing frivolous tax returns for the years 1998 and 1999 and levied a penalty. It also provided the Kims with a "Statement of Tax Due the Internal Revenue Service," also known as a Form 6335. The Kims responded with a letter of their own dated February 21, 2002, in which they requested that the penalties be rescinded because their "intention for filing was not to be frivolous."

By letter dated September 20, 2002, the IRS reported that the Kims had also failed to file forms regarding their individual income tax returns for the year 2000 and proposed an income tax assessment. The Kims responded on March 4, 2003 with a letter explaining why they believed they were not required to file individual income tax returns and providing a copy of their "annual statement" for 2000.

On October 14, 2003, IRS Agent Dennis L. Parizek notified the Kims that the IRS had no record of the Kims' income tax returns for 1999. Five days later, the IRS forwarded the Kims a "notice of deficiency" for tax-year 2001. The Kims responded on October 29, 2003 by sending the IRS what they styled as an "Implied Legal Notice: Violation of Due Process for Failure to Provide Notice(s) to Keep Records and File Returns." On June 12, 2007, Agent Parizek replied with a Letter 3175-C, informing the Kims that their correspondence was "frivolous" and without "basis in law."

On January 18, 2004, the Kims provided the IRS with their "annual statement" for 2001. Nearly one year later, on January 12, 2005, the IRS issued the Kims a "notice of deficiency" for tax-years 2002 and 2003. The Kims answered on January 19, 2005 with a "notice of dispute to contest your notice of deficiency and notice to rescind for lack of valid assessment." On July 15, 2005, the IRS mailed the Kims a Form 2039 Summons requesting that they appear before their local IRS office to account for their income tax payments for the years 1999 through 2001.

B. Procedural History

Taking the offensive, the Kims commenced this action on September 25, 2008, alleging that the IRS violated the Taxpayer Bill of Rights, failed to comply with various statutory duties, and perpetrated an "ongoing campaign of harassment" against them. See Compl., ECF No. [1]; Stmt. of Facts of Calvin Ki Sun Kim and Chun Cha Kim ("Stmt. of Facts"), ECF No. [1]. The Kims claim that they are not required to file individual income tax returns because the IRS did not maintain proper records or perform all duties required of it by law. The Kims' Complaint sets forth twenty-one separate counts against the United States, the Commissioner of the IRS, and a series of known and unknown IRS Agents, seeking monetary damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and what is commonly referred to as the Taxpayer Bill of Rights, 26 U.S.C. § 7433.

On May 26, 2009, this Court dismissed Counts 1 through 18-the Kims' Bivens claims-after finding that it lacked subject matter jurisdiction to hear the claims against the defendants in their official capacities and that the Kims failed to state a claim for relief against the defendants in their individual capacities. See Kim v. United States, 618 F. Supp. 2d 31, 37-40 (D.D.C. 2009), aff'd in part and rev'd in part, 632 F.3d 713 (D.C. Cir. 2011). In addition, the Court dismissed Counts 19 and 20 based on its conclusion that they did not relate to "collection activities" within the meaning of the Taxpayer Bill of Rights. See id. at 41. Finally, the Court dismissed Counts 19 and 20, as well as Count 21, for failure to state a claim because the Kims failed to plead exhaustion of remedies in their Complaint and failed to rebut the United States' exhaustion defense. See id. at 42-43.

On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's decision in part and reversed in part. See Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011). In pertinent part, the Court of Appeals concluded that this Court erred in finding that Count 20 did not relate to "collection activities" within the meaning of the Taxpayer Bill of Rights, and improperly dismissed Counts 20 and 21 for failure to state a claim because the exhaustion of remedies is not a pleading requirement under the Taxpayer ...


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