Opinion
Case No. 04-60164.
November 18, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION TO DISMISS
Plaintiff Paul Daniel Chebetar brings this action pursuant to 26 U.S.C. § 7214(a)(7) and 42 U.S.C. § 1983. In his pro se Complaint and Motion for Other Relief, Plaintiff alleges that the Internal Revenue Service ("IRS") denied him the right to earn a living; that he lost his citizenship; that his social security card was invalidated; that the Justice Department classified Plaintiff as not having a right to work; that his credit report was negatively impacted, all of which resulted in the termination of his employment.
Defendant filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which the Court referred to Magistrate Judge Steven D. Pepe for Report and Recommendation ("RR"), pursuant to 28 U.S.C. § 636(b)(1). In a RR dated June 22, 2004, Magistrate Judge Pope recommended that Defendant's Motion be granted. The Court finds the analysis sound.
Plaintiff seeks relief under two statutory provisions; however, he fails to state a claim for which relief can be granted under either. Section 7214(a)(7) provides in relevant part:
any officer or employee of the United States acting in connection with a revenue law of the United States who makes or signs any fraudulent entry in any book, or makes or signs any fraudulent certificate, return, or statement, shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
26 U.S.C. § 7412(A)(7)(2002). The statute provides for recovery of damages only after a criminal conviction. See Hollett v. Browning, 711 F.Supp. 1009, 1012 n. 2 (E.D.Cal. 1988);Brunwasser v. Jacob, 453 F.Supp. 567, 572-73 (D.C.Pa. 1978),aff'd, 605 F.2d 1194 (3d Cir. 1979). None is alleged here. Therefore, Plaintiff's claims for lost wages and other redress are unavailable.
As to Plaintiff's § 1983 claim, the Magistrate Judge correctly observed that the claim fails because "there has been no waiver of sovereign immunity by the United States to suits based on the Civil Rights Act, and to the extent that Plaintiff alleges a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407-08 (1971), he has failed to allege or show "the lack of procedural reviews and potential remedies under federal law satisfying due process." RR at 3.
Plaintiff's Objection to the RR, which this Court has reviewed de novo, raises the availability of 26 U.S.C. § 7433 as an alternative basis for relief. The Court finds the Objection lacks merit. The Magistrate Judge previously denied Plaintiff's request to amend his complaint to assert violations based on the provision. Plaintiff did not appeal the order. Moreover, to the extent that Plaintiff's Objection is construed as an appeal of that decision, it fails on the merits.
Section 7433 addresses the collection of federal taxes. It provides in relevant part:
If, in connection with any collection of federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.26 U.S.C. § 7433(a) (2002).
As noted by the Magistrate Judge in denying Plaintiff's request to amend his complaint, Plaintiff alleges wrongful assessment of the penalties, not improper collection activity. Specifically, Plaintiff claims that the IRS wrongfully assessed two civil penalties in 1999. See Doc. No. 3. Wrongful assessment is conduct that does not fall within the scope of the statute. See Miller v. U.S., 763 F.Supp. 1534, 1543 (N.D.Cal. 1991) (mere assessment is not collection action for purposes of the statute);Crowd Mgmt. Servs., Inc. v. United States, 792 F.Supp. 87, 89 (D.Or. 1992) (observing that § 7433 is limited to actions in connection with the collection of the tax and does create a cause of action contesting the determination of tax).
Accordingly, the Court ADOPTS the Magistrate Judge's recommendation and GRANTS Defendant's Motion to Dismiss.
IT IS SO ORDERED.