Opinion
No. 8:99-cv-930-T-23MSS
July 5, 2001
ORDER
Before the Court is the United States' "Motion to Dismiss or for Summary Judgment" (Doc. 7). The pro se plaintiff's response to the United States' motion includes a motion for summary judgment in favor of the plaintiff ("Brost") (Doc. 8). The Court granted leave for Brost to also file a "rebuttal brief" (Doc. 12) in support of his motion for summary judgment.
Brost's complaint arises from a Notice of Federal Tax Lien (the "Lien") in the amount of $3,512.65 recorded against Brost in Pasco County, Florida (Doc. 7, Exh. 1). The Internal Revenue Service ("IRS") recorded the Lien after assessing a $500 penalty for each of seven frivolous returns Brost filed between 1994 and 1996 (Doc. 10, Exh. 1). The United States subsequently recovered most of the amount owed through levy on a bank account belonging to Brost (Doc. 1).
26 U.S.C. § 6702 permits the assessment of a maximum $500 penalty for a taxpayer's filing of a frivolous return.
In his complaint, Brost seeks several forms of declaratory and injunctive relief as well as a refund of the monies the IRS "seized" from his bank account (Doc. 1, at pp. 5-6). Brost asserts that he "has been explicitly targeted for abuse" and "illegally singled out by the IRS for abusive treatment" because he "has been investigating the IRS for several years, and many officials in the IRS are aware of this" (Doc. 12, at pp. 8-9) Brost further contends that he "is an innocent victim of a well orchestrated conspiracy to systematically deprive American Citizens of their constitutional rights under color of law" (Doc. 12, at p. 10)
Brost invokes the Court's jurisdiction pursuant to both the "Civil actions for refund" and the "Civil damages for certain unauthorized collection actions" provisions of the Internal Revenue Code ( 26 U.S.C. § 7422 and § 7433, respectively) (Doc. 1, at p. 1). The United States asserts that Brost failed to exhaust his administrative remedies under either statute (Doc. 7) Subsequently Brost characterized his suit as "an action for damages resulting from wrongful collection activities, not an action for refund" while contradictorily alleging that he "did in fact file administrative claims for refund" and that the United States "is liable for refunding the illegally collected overpayment" (Doc. 8, at pp. 2-3)
The administrative prerequisites for pursuing a claim for "civil damages for certain unauthorized collection actions" are specifically prescribed in Treasury Regulation § 301.7433-1(e), codified as 26 C.F.R. § 301.7433-1(e). Nothing in the record before the Court suggests that Brost satisfied any of the prerequisites. Accordingly, Brost is not entitled to pursue his claim pursuant to 26 U.S.C. § 7433.
"An action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim pursuant to paragraph (e) of this section. . . ." 26 C.F.R. § 301.7433-1(a) (2).
However, Brost's claim that he "did in fact file administrative claims for refund" is supported by the record. In November 1998, Brost mailed a "Request for Abatement" to the IRS challenging the assessments for the years 1994 through 1996 (Doc. 8, Exh. 1). In response, the IRS mailed Brost three identical letters (covering the years 1994, 1995, and 1996, respectively), stating in pertinent part:
We reviewed your claim for a refund of the penalty you paid under Section 6702 of the Internal Revenue Code.
* * * * * * * *
Your claim for refund of Frivolous Return Penalty cannot be allowed. This is your legal notice that your claim has been disallowed in full because it is based on moral, political, constitutional, or religious grounds. It has been determined that an abatement cannot be justified.
If you want to bring suit to recover your penalty payment, you may file suit with the United States District Court having jurisdiction.
(Doc. 12, Exh. 1). "[W]hen the Internal Revenue Service accepts a letter of protest as a claim for refund and treats the letter as a refund claim in correspondence and in hearings, the Court will be bound by the administrative construction of the writing." Gustin v. United States, 876 F.2d 485, 489(5th Cir. 1989) (citing United States v. Kales, 314 U.S. 186, 196-97, 62 S.Ct. 214, 219(1941)). Accordingly, the Court finds that Brost exhausted his administrative remedies for filing a "refund" claim pursuant to 26 U.S.C. § 7422.
After Brost filed the three IRS letters with his "Rebuttal Brief" (Doc. 12, Exh. 1), the United States receded from its "failure to exhaust administrative remedies" argument (Doc. 7, at p. 4) and instead asserts that Brost "abandoned any claim for refund pursuant to the Case Management Report" (Doc. 21, at p. 3). This assertion is premised solely on paragraph 10(b) of the Case Management Report, which states under the heading "Description of Case" that this action is a "[s]uit for illegal tax collection" (Doc. 17). Considering the plaintiff's pro se status, the Court declines to find the case description stated in the Case Management Report dispositive as to whether Brost presents a "refund" claim.Securities and Exchange Commission v. Elliott, 953 F.2d 1560, 1582(11th Cir. 1992) (pro se parties are accorded "wide latitude when construing their pleadings and papers. . . . [T]he Court should use common sense to determine what relief the party desires").
Brost raises several arguments in support of his claim for refund. First, Brost contends that the Lien is ineffective because the Lien cites sections 6321, 6322, and 6323 of the Internal Revenue Code as authority for imposition of the Lien. Brost asserts that these sections of the Code "pertain exclusively to the enforcement of excise taxes on alcohol, tobacco and firearms" (Doc. 1, at pp. 2-3). Brost's argument lacks any legal foundation. Sections 6321, 6322, and 6323 plainly relate to all liens accruing in favor of the United States for any type of tax liability. 26 U.S.C. § 6321-6323.
Brost's second theory is that the Lien is ineffective because it is "unsigned," "anonymously filed. . . by an unidentified employee of the Internal Revenue Service," and therefore unauthorized (Doc. 1, at p. 2). The two cases Brost cites (Doc. 12, at p. 12) for his proposition are inapposite. Both cases discuss the signature requirement for tax assessments and have nothing to do with an alleged signature requirement for lien notices. In this case, the assessments submitted to the Court are each signed (Doc. 10, Exh. 1) and Brost cites no authority for the proposition that an IRS lien notice requires a handwritten signature.
Brafman v. United States, 384 F.2d 863(5th Cir. 1967); Brewer v. United States, 764 F. Supp. 309(S.D.N.Y. 1991).
The "Signature" and "Title" blocks of the Lien (Doc. 7, Exh. 1) contain the typewritten words "for BILL GUARD" and "Revenue Officer 59-01-2219," respectively.
Brost's third argument appears derivative of his first two theories. Brost asserts that because the Lien was not signed and does not "pertain exclusively to the enforcement of excise taxes on alcohol, tobacco, and firearms" it follows that "no assessments were ever performed, and there is not even any possibility that any assessments ever could have been performed" (Doc. 12, at p. 9). This reasoning permits Brost to conclude that "[s]ince no assessment has been made against [Brost], there is no lien" (Doc. 8, at p. 4)
In support of its motion for summary judgment, the United States filed a verified "Certificate of Assessments and Payments" (Doc. 10, Exh. 1). The Certificate of Assessments and Payments reflects the amounts and dates of the penalties assessed against Brost. The Certificate is prima facie proof that the IRS imposed the assessments on the stated dates and that the IRS mailed the notice and demand letters on the dates indicated. United States v. Chila, 871 F.2d 1015, 1017-18(11th Cir. 1989); United States v. Dixon, 672 F. Supp. 503(M.D. Ala. 1987), aff'd, 849 F.2d 1478(11th Cir. 1988); Geiselman v. United States, 961 F.2d 1, 5-6(1st Cir. 1992). In United States v. Chila, the court affirmed an award of summary judgment in favor of the United States upon accepting the presumptive validity of a Certificate of Assessments and Payments:
[T]his Court accepts the document `Certificate of Assessments and Payments' submitted by the government as presumptive proof of a valid assessment. Given that the defendant has produced no evidence to counter this presumption, the Court is satisfied that the government has established that the claimed tax liability was properly assessed against the defendant.United States v. Chila, 871 F.2d at 1018(11th Cir. 1989) (quoting United States v. Dixon, 672 F. Supp. at 506(M.D. Ala. 1987) (emphasis in original))
Likewise, this Court accepts the United States' Certificate of Assessments and Payments (Doc. 10, Exh. 1) as presumptive proof that the IRS imposed valid assessments on Brost. Accordingly, pursuant to Rule 56, Fed.R.Civ.P., the Court finds that no genuine issue as to any material fact exists with respect to Brost's claim for refund. As for Brost's collateral claim for relief pursuant to the Freedom of Information Act ("FOIA") (Doc. 1, at pp. 2, 6), the Court finds that Brost's own submission to the Court (Doc. 8, Exh. 8) demonstrates that the IRS appropriately responded to Brost's FOIA requests.
For the foregoing reasons, the United States' motion for summary judgment (Doc. 7) is GRANTED. The Clerk is directed to (1) enter judgment in favor of the United States, (2) terminate all pending motions, and (3) close the file.
ORDERED