DEVRIES v. UNITED STATES INTERNAL REVENUE SERVICE, (W.D.Mich. 2000)

Honorable ROBERT HOLMES BELL, United States District Judge.

In accordance with the opinion filed this date:

IT IS ORDERED that defendant's motion to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) (docket # 4) be and hereby is GRANTED.

IT IS FURTHER ORDERED that plaintiff's complaint be and hereby is DISMISSED WITH PREJUDICE and judgment is entered on behalf of defendant.

This is a civil action brought pro se against the United States Internal Revenue Service (IRS). Plaintiff filed this complaint on November 5, 1999, one day after the court dismissed for failure to state a claim plaintiff's prior lawsuit naming an IRS officer as the defendant. See DeVries v. Hammer, No. 1:99cv111, 1999 WL 1128869 (W.D.Mich. Nov. 4, 1999). Plaintiff again asserts that he is sovereign and is not subject to taxation. Plaintiff attached two exhibits in support of his complaint. Exhibit A is an April 10, 1997 IRS form letter advising plaintiff that income taxes are authorized by the Sixteenth Amendment to the United States Constitution and the Internal Revenue Code. The letter declined to respond to plaintiff's objections to the existence of income tax on a point-by-point basis. Plaintiff's Exhibit B is a 1997 Notice of Levy by the IRS against plaintiff s account at the Steelcase Employees Credit Union. Plaintiff's complaint charges defendant with fraud, extortion and "attempting [an] illegal lien/levy action against plaintiff in opposition to the U.S.C. and in violation of U.C.C. statutes." Plaintiff's complaint seeks $2,085,000.00 in monetary damages and declaratory relief in the form of an order "verifying plaintiff's lack of any monetary obligation" to the IRS in the "past, present and future." The matter is before the court on defendant's motion to dismiss plaintiff s complaint for failure to state a claim upon which relief can be granted. (docket # 4).

For the reasons set forth below, defendant's motion will be granted.

Defendant has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The standards applicable to a motion to dismiss are well settled. Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint . See Lawrence v. Chancery Court of Tennessee, 188 F.3d 687, 691 (6th Cir. 1999); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998); Ludwig v. Board of Trustees, 123 F.3d 404, 408 (6th Cir. 1997); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The court must construe the complaint in the light most favorable to plaintiff, accept all factual allegations as true, and determine whether it is established beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995); Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 649 (6th Cir. 1999). The court need not accept as true legal conclusions or unwarranted factual inferences. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor), 123 F.3d 394, 400 (6th Cir. 1997) (quoting Morgan, 829 F.2d at 12). "In practice, a `. . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Columbia Natural Resources, Inc. v. Tatum, 58 F.3d at 1109 (quoting Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993)); see Hahn v. Star Bank, 190 F.3d 708, 718 (6th Cir. 1999). Further, as plaintiff is proceeding pro se, the complaint must be given a liberal reading, and is not held to the standard applicable to complaints drafted by trained legal counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Applying these standards, the court concludes that defendant's motion must be granted.

Plaintiff's complaint repeats a litany of rejected arguments concerning the power of the United States government to collect income tax. See United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994); Devries v. Hammer, 1999 WL 1128869, at * 2. Defendant has moved for summary judgment on the basis of sovereign immunity.

The United States Government and its agencies are immune from suit unless that immunity has been expressly waived. See Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999); United States v. Shaw, 309 U.S. 495, 500-501. The United States, as a sovereign, cannot be sued without its prior consent . McGinness v. United States, 90 F.3d 143, 145 (6th Cir. 1996). A limited waiver of sovereign immunity is found in 26 U.S.C. § 7426 which allows third parties to sue the United States for a wrongful levy. The "person against whom is assessed the tax out of which such levy arose" is expressly excluded from the waiver. 26 U.S.C. § 7426(a); see McGinness, 90 F.3d at 145; see also Limbaugh v. Dep `t of Treasury, No. 98-16630, 2000 WL 531482, at * 1 (9th Cir. Apr. 14, 2000); Mattingly v. United States, No. 97-4467, 1998 WL, 939841, at *2 (6th Cir. Dec. 21, 1998) ("Although 26 U.S.C. § 7426 provides a limited waiver of sovereign immunity allowing third-parties to contest IRS levy when it interferes with their property rights, the person asserting the wrongful levy claim must not be the one against whom the tax is assessed."). Plaintiff's "Memorandum in Rebuttal of Motion to Dismiss," affirmatively states that plaintiff is not asserting any claim under 26 U.S.C. § 7426. (docket # 6 at 2). Plaintiff's rebuttal memorandum cites 26 U.S.C. § 7421. Section 7421 contains the general statutory prohibition against suits to restrain assessment or collection of taxes. Plaintiff's complaint does not contain either direct or inferential allegations respecting all the material elements to sustain a recovery under any viable legal theory. Defendant is entitled to judgment in its favor on the basis of sovereign immunity.

Defendant is absolutely immune from suit. Defendant's motion to dismiss will be granted.