United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Ronald DePolo complains that the Internal Revenue Service
(IRS) labels him an income tax non-filer, creates automated
substitutes for his missing tax returns, and uses the
substitutes in subsequent tax collection and enforcement
proceedings against him. Mr. DePolo seeks to enjoin IRS from
engaging in what he calls a criminal conspiracy and
record-falsification scheme on the basis that it violates his
rights under the Constitution. Mr. DePolo, proceeding pro
se, sues Caroline Ciraolo-Klepper, Acting Assistant
Attorney General of the Tax Division at the Department of
Justice, in her personal and official capacities, as well as
the Commissioner of Internal Revenue and Attorney General of
the United States in their official capacities. See
Compl. [Dkt. 1]. Defendants move to dismiss the Complaint.
See Mot. to Dismiss [Dkt. 2] (Mot.). Mr. DePolo
filed a timely opposition to the motion, see
Opp'n [Dkt. 7], to which Defendants replied, see
Reply [Dkt. 8]. For the reasons that follow, the Court will
grant the motion to dismiss.
opens an Individual Master File (IMF) for income tax
non-filers by creating an entry in its computer system
indicating that the individual paid zero tax. This is exactly
what the law provides. See 26 U.S.C. §
6020(b)(1) (providing in relevant part that "if any
person fails to make any return required by any internal
revenue law or regulation made thereunder . . . the Secretary
[of Treasury] shall make such return"); see
also 26 C.F.R. § 301.6211-1 ("If no return is
made . . . for the purpose of the definition ‘the
amount shown as the tax by the taxpayer upon his return'
shall be considered as zero."). IRS then estimates the
individual's tax deficiency and any "additions to
tax" (i.e., penalties and interest). "If a
taxpayer fails to file a return, the IRS may create a
substitute tax form under 26 U.S.C. § 6020(b) and file a
notice of deficiency for the total amount it calculates as
due." Byers v. C.I.R., 740 F.3d 668, 671 (D.C.
Cir. 2014), cert. denied, 135 S.Ct. 232,
reh'g denied, 135 S.Ct. 887 (2014). This
calculation is recorded on Form 4549 titled, "Income Tax
Examination Changes, " and Form 866 titled,
"Explanation of Items."
forms are appended to Form 13496, titled "IRC §
6020(b) Certification, " that contains the IRS
assessment of the taxes and other charges due. See
26 C.F.R. § 301.6020-1. This packet of records is known
as a Substitute for Return (SFR). Finally, IRS produces a
certified transcript of the IMF (or Form 4340) that the
Department of Justice uses in tax collection and enforcement
proceedings against the non-filer. See Mot. at 3
(citing Compl. ¶¶ 20-53). The use of certified
transcripts to collect unpaid taxes also is authorized by
law. See 26 U.S.C. § 6020(b)(2) ("Any
return so made and subscribed by the Secretary [of Treasury]
shall be prima facie good and sufficient for all
legal purposes."); see also 26 C.F.R. §
as can be discerned from his Complaint and Opposition, Mr.
DePolo believes this process violates his constitutional
rights and multiple criminal statutes. He claims that IRS
falsely labels him an income tax non-filer, estimates his
annual tax liability each year, and then certifies the amount
of taxes to be collected from him. Mr. DePolo accuses
Defendants of engaging in a "criminal enterprise"
to falsify records concerning him, which are then used
"to damage [him] by stealing his property." Compl.
¶¶ 1-5, 17. The underlying basis for his beliefs
lies in his assertion that he possesses a constitutional
right under the Fifth Amendment to refuse to file an income
DePolo alleges that he "will never voluntarily confess
liability by swearing out 1040 evidence which can be used
against him." Id. ¶ 5; see also
Opp'n at 9. As a result, IRS points out that Mr. DePolo
is a "tax defier" -- namely, someone who does not
file annual income tax returns. Mot. at 1. Mr. DePolo
contends that "because IRS must falsify its records to
create the appearance of a collectible deficiency, Plaintiff
has no liability to pay that tax and owes nothing to the
Treasury." Opp'n at 9.
Mr. DePolo asserts two claims against Defendants: (1) a
violation of the Administrative Procedure Act (APA), 5 U.S.C.
§ 702 (Count 1); and (2) a violation of Mr. DePolo's
procedural and due process rights under the Fifth Amendment
of the U.S. Constitution (Count 2). See Compl.
¶¶ 54-60. Although these are the only two counts
included in the Complaint, Mr. DePolo also mentions in
passing that Defendants' conduct violates his right
against self-incrimination under the Fifth Amendment, as well
as his rights under the Fourth and Thirteenth Amendments.
See Id. ¶¶ 1, 5. Mr. DePolo asks the Court to
enjoin IRS from fabricating records and engaging in this
alleged falsification scheme against him, thereby avoiding
future income tax assessments based on this process. He also
wants an injunction to prevent the Attorney General and the
Department of Justice from participating in this putative
scheme and using forms provided by IRS to collect any tax
move to dismiss for lack of jurisdiction, including lack of
standing, under Federal Rule of Civil Procedure 12(b)(1). In
the alternative, Defendants move to dismiss the Complaint
under Federal Rule of Civil Procedure 12(b)(6) because Mr.
DePolo failed to state a claim upon which relief can be
granted. The case will be dismissed for lack of jurisdiction.
to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint, or any portion thereof, for lack
of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No
action of the parties can confer subject matter jurisdiction
on a federal court because subject matter jurisdiction is
both a statutory requirement and an Article III requirement.
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003). The party claiming subject matter
jurisdiction bears the burden of demonstrating that such
jurisdiction exists. Khadr v. United States, 529
F.3d 1112, 1115 (D.C. Cir. 2008); see Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(noting that federal courts are courts of limited
jurisdiction and "[i]t is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction") (internal citations omitted).
reviewing a motion to dismiss for lack of jurisdiction under
Rule 12(b)(1), a court should "assume the truth of all
material factual allegations in the complaint and
‘construe the complaint liberally, granting the
plaintiff the benefit of all inferences that can be derived
from the facts alleged.'" Am. Nat'l Ins. Co.
v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). Nevertheless, "the court need not accept factual
inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint, nor must the
Court accept plaintiff's legal conclusions."
Speelman v. United States, 461 F.Supp.2d 71, 73
(D.D.C. 2006). A court may consider materials outside the
pleadings to determine its jurisdiction. Settles v. U.S.
Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003). A court has "broad discretion
to consider relevant and competent evidence" to resolve
factual issues raised by a Rule 12(b)(1) motion. Finca
Santa Elena, Inc. v. U.S. Army Corps of Engineers, 873
F.Supp.2d 363, 368 (D.D.C. 2012) (citation omitted).
over a complaint also requires that the plaintiff in a
lawsuit have standing to pursue his claim. Flast v.
Cohen, 392 U.S. 83, 95 (1968). Standing requires a
plaintiff to show that "(1) [he] has suffered an
‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision." Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167,
180-81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992)).