MOTHERSHED v. INTERNAL REVENUE SERVICE

WILBUR OWENS, Senior District Judge

Plaintiff filed suit against the I.R.S. pursuant to 26 U.S.C. § 7433 claiming the I.R.S. is collecting taxes from him in a manner that is a violation of his constitutional rights. Plaintiff seeks $1 million in damages. Plaintiff did not allege any facts supporting his claim. He only sets forth a one-paragraph conclusory allegation that the I.R.S. has violated the above referenced statute.

The I.R.S. filed a motion to dismiss based on the following: (1) that this court lacks personal jurisdiction over the I.R.S. because the United States is the only party that may be sued for the allegations in the complaint; (2) that this court lacks subject matter jurisdiction over Plaintiff's claims because Plaintiff failed to exhaust his administrative remedies through the I.R.S. before bringing this case; (3) that Plaintiff failed to state a claim upon which relief can be granted because he failed to specify the year in which he was allegedly injured or any specific action by the I.R.S. that caused his injuries; and (4) that 26 U.S.C. § 7421 (a) prohibits any suit for the purpose of restraining the assessment or collection of any tax.

"A complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief." La Grasta v. First Union Securities. Inc., 2004 WL 178937 at *4 (11th Cir. Jan. 30, 2004) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "We must View the allegations of the complaint in the light most favorable to the plaintiffs, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom.'" Id (citing Omar v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003)). "In analyzing the sufficiency of the complaint, we limit our consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed." id. (citing FED.R.CIV.P. 10(c); Harris v. Ivax, 182 F.3d 799, 802 n. 2 (11th Cir. 1999)).

Pursuant to 26 U.S.C. § 7433(d), a plaintiff is required to exhaust the administrative remedies available within the Internal Revenue Service before bringing a case against the government for wrongful collection activities. See Sintz, Campbell, Duke and Taylor v. United States, 197 B.R. 351, 355 (S.D. Ala. 1996) (no judgment awarded under section 7433 unless the court determines that plaintiff exhausted the administrative remedies available within the I.R.S.) (citing 26 U.S.C. § 7433(d)(1); 26 C.F.R. § 301.7433-1 (d) (no civil action may be filed under § 7433 until earlier of date that administrative claim is decided by I.R.S. or date six months after filing of administrative claim)).

In the case at bar, Plaintiff failed to allege or show that he first exhausted his administrative remedies with the I.R.S. before filing suit in this court. As shown above, this requirement is clearly a jurisdictional prerequisite to filing suit. Further, Plaintiff failed to respond to the Defendant's motion to dismiss and therefore failed to rebut any of the arguments stated therein. Defendant's Motion to Dismiss is therefore GRANTED.