Robin S. TURNER, Plaintiff, v. UNITED STATES of America, Defendant., United States District Court, S.D. Ohio, Eastern Division., 372 F.Supp.2d 1053, No. 2:04-CV-855., April 13, 2005

Robin S. TURNER, Plaintiff, v. UNITED STATES of America, Defendant.

United States District Court, S.D. Ohio, Eastern Division.

372 F.Supp.2d 1053

No. 2:04-CV-855.

April 13, 2005.

Robin S. Turner, Mingo Junction, OH, pro se.

Steve A. Serman, US Dept. of Justice, Washington, DC, for Defendant.

OPINION AND ORDER

FROST, District Judge.

This matter comes before the Court for consideration of a Motion for Affirmance of the IRS Administrative Decision and to Dismiss Claim for Damages filed by De╜fendant United States of America ("Defen╜dant" or "Government"). ¹ (Doc. # 8). Plaintiff Robin S. Turner ("Plaintiff" or "Turner") filed an Answer to Defendant's Motion. (Doc. # 10). For the following reasons, the Court GRANTS the Defen╜dant's motion to affirm and dismiss.

*********

^1. Defendant attached seven (7) exhibits to its motion to affirm and to dismiss. Turner at╜tached five (5) of those exhibits to his com╜plaint. Exhibits F & G to Defendant's motion were not attached to Plaintiff's Complaint. The Court holds that those two (2) exhibits are irrelevant to the determination at hand.

*********

I. Background

Turner completed his Form 1040 2002 income tax return by filling in zeros for his income and tax liability and filed it with the Internal Revenue Service ("IRS"). (Doc. # 1, Ex. A(2).) However, indepen╜dent third parties provided income docu╜ments to the IRS that established that Turner had earned wages totaling $34,903 and interest income of $77 in 2002. ( Id. ) As a result, the IRS assessed a $500 mone╜tary penalty against Turner on January 12, 2004 for filing a frivolous tax return. (Doc. # I Ex. C; Doc. # 8 at 3). Because Turner did not pay the fine, the IRS sent him a Final Notice of Intent to Levy and Notice of Your Right to a Hearing ("the levy notice"). (Doc. # 1 Ex. C.) In re╜sponse, Turner filed a written request for a Collection Due Process hearing ("CDP hearing") to challenge the appropriateness of the collection action and the existence of the underlying tax liability. (Doc. # 1 at ╤╤ 14-15, 17.) In this letter, Turner de╜manded certain documents and verification be produced at the CDP hearing, including (1) the specific code section that makes him liable for the income tax at issue; (2) the names and identification numbers of the IRS employees who imposed the pen╜alty; (3) the delegation of authority from the Secretary of the Treasury authorizing the employees to impose the penalty; (4) a copy of the record of his assessment; and (5) copies of statutes and regulations per╜taining to the penalty assessed and his liability thereunder. (Doc. # 1 at ╤╤ 19-20. )

The IRS denied Turner's request for an in-person oral hearing because the issues he raised in his letter were "frivolous" and/or "groundless." (Doc. # 1 Ex. F.) The IRS instead offered Turner two op╜tions. (Id.) First, a telephone hearing could be conducted. (Id.) Second, Turner could express his arguments through writ╜ten correspondence. (Id.) Turner timely responded in writing by declining both of the options and instead insisted upon a "face-to-face meeting." (Doc. # 1 Ex. E.) He also reiterated his complaints and threatened to sue the IRS for damages if it refused to grant him an in-person hear╜ing. ( Id. )

Apparently, the IRS treated Turner's response as an acceptance of their offer to address his arguments through written correspondence. Subsequently, the IRS issued its Notice of Determination on Au╜gust 10, 2004. (Doc. # 1 Ex. A.) The Notice of Determination was the adminis╜trative determination of the IRS relative to Turner's liability for the collection ac╜tion. (Id.) That determination concluded that Turner intentionally filed a frivolous tax return and noted that Turner present╜ed only frivolous arguments regarding his liability in his request for an in-person hearing. (Doc. # 1 Ex. A(4).) The Notice of Determination also informed Turner of his right to appeal the Notice of Determi╜nation to a Federal District Court within 30 days. (Doc. # 1 Ex. A.)

Proceeding pro se, Turner instituted this action on September 4, 2004, requesting this Court set aside the Notice of Determi╜nation and award him costs and damages. (Doc. # 1.) On December 8, 2004, the Government moved for affirmance of the IRS Administrative Decision and dismissal of Turner's damage claim. (Doc. # 8.) On January 12, 2005, Turner untimely filed a response to Defendant's motion. ² (Doc. # 10.) It is to an examination of the Gov╜ernment's motion that this Court now turns.

***********

^2. Turner's answer was late pursuant to the Federal Rules of Civil Procedure and the Lo╜cal Rules. The Court encourages Turner to familiarize himself with the time limits as set forth in those rules. However, because the Court prefers to decide cases on the merits, it will overlook the tardiness of Turner's an╜swer. Turner is cautioned that the Court may not be willing to do so in the future.

***********

II. Discussion

At the outset, the Court is aware that pro se complaints such as the one in the present case are subject to a less stringent standard than those prepared by an attor╜ney. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even taking this into consideration, the Court GRANTS Defendant's motion.

A. MOTION TO AFFIRM

The Government first argues that the Court should affirm the Notice of Determi╜nation of the IRS. (Doc. # 8). In contrast, Turner asserts that the Government violat╜ed his due process rights by not holding an in-person hearing. (Docs.# # 1, 10).

The IRS may assess a civil penalty of $500 against anyone who "files what purports to be [an income tax] return" but which contains "information that on its face indicates that the self-assessment is substantially incorrect" and is due to "a position which is frivolous." 26 U.S.C. ╖ 6702(a); see also Gillett v. United States, 233 F.Supp.2d 874, 881 (W.D.Mi. 2002). An individual's position meets the objective test for frivolousness under 26 U.S.C. ╖ 6702(a)(2) when it has "no basis in fact or law." Gillett, 233 F.Supp.2d at 881.

A taxpayer has a right to a CDP hearing before the IRS can issue a levy against any of the taxpayer's property. 26 U.S.C. ╖ 6330. The CDP hearing, conducted by the Office of Appeals of the IRS, provides for the opportunity to discuss collection options and liability issues. 26 U.S.C. ╖╖ 6330(c)(2); 6330(a)(3)(B). At a CDP hearing, a taxpayer may challenge the ex╜istence or the amount of the underlying tax liability. 26 U.S.C. ╖╖ 6330(c)(2)(A), 6330(c)(2)(B). In this case, the underlying tax liability was the frivolous return penal╜ty because the: (1) notice of intent to levy notified Turner of the Government's inten╜tion to collect on the penalty and not on any income tax liability, and (2) at the time the notice of intent to levy was sent, the IRS had not yet completed its assessment of Turner's 2002 income tax liability. 26 U.S.C.╖ 6321.

Turner seeks judicial review of the No╜tice of Determination pursuant to 26 U.S.C. ╖ 6330(d). The Sixth Circuit held in an unpublished decision that a suit pur╜suant to that statute that attempts to chal╜lenge a hearing officer's decision concern╜ing a plaintiff's underlying tax liability for particular years fell within the exclusive jurisdiction of the United States Tax Court. See Diefenbaugh v. Weiss, 234 F.3d 1267 (6th Cir.2000) (affirming District court's sua sponte dismissal of the plain╜tiff's complaint). At present, it is unclear whether the Sixth Circuit would corre╜spondingly hold that review of the admin╜istrative decision to impose civil sanctions for filing frivolous returns fell within the exclusive jurisdiction of the United States Tax Court. As a result, in the absence of controlling authority, the Court will as╜sume for purposes of ruling on this motion that the Court does have subject matter jurisdiction limited to the review of the appropriateness of the frivolous tax return penalty assessed pursuant to 26 U.S.C. ╖ 6330(d). See Gillett, 233 F.Supp.2d at 882.

Section 26 U.S.C. ╖ 6330(d) fails to specify the standard of review a court should use for cases involving frivolous returns. See 26 U.S.C. ╖ 6330(d); Gillett, 233 F.Supp.2d at 881 (citing Carroll v. United States, 217 F.Supp.2d 852, 855 (W.D.Tenn.2002)). The legislative history of 26 U.S.C. ╖ 6330(d) indicates that the Court should conduct a de novo review "where the validity of the tax liability was properly at issue in the administrative hearing." H.R. Conf. Rep. No. 105-599, at 266 (1998); see also Tornichio v. United States, 263 F.Supp.2d 1090, 1095 (N.D.Oh. 2002) (citing Rennie v. IRS, 216 F.Supp.2d 1078, 1080 (E.D.Ca.2002)); Geller v. U.S., 2001 WL 1346669 (S.D.Oh.2001). When the underlying tax liability is not at issue, a court must review the determination us╜ing an abuse of discretion standard. Tor╜ni chio, 263 F.Supp.2d at 1095; MRCA Info. Services v. United States, 145 F.Supp.2d 194, 199 (D.Conn.2000).

The only tax liability at issue here is the penalty assessed for filing a frivolous re╜turn. 26 U.S.C. ╖ 6671(a) (stating in rele╜vant part that "except as otherwise pro╜vided, any reference in this title to 'tax' imposed by this title" also refers to the "penalties and liabilities provided by this subchapter"); see 26 CFR ╖ 301.6321-1; see also Bartley v. United States, Internal Revenue Service, 343 F.Supp.2d 649, 654 (N.D.Oh.2004). Because the validity of Turner's tax liability was properly at issue in the CDP hearing, this Court will review the case de novo.

However, this Court is confined to the administrative record in considering Turner's appeal. 26 C.F.R. ╖ 301.6330-1(f)(2) Q-F5/A-F5 ("[T]he taxpayer can only ask the court to consider an issue that was raised in the taxpayer's CDP hear╜ing."). "Courts interpreting these provi╜sions have determined that actions brought pursuant to ╖ 6330(d) are actions for administrative review and, thus, the reviewing district court is limited to the administrative record and the parties are not entitled to discovery or jury trial." Hart v. United States, 291 F.Supp.2d 635, 640 (N.D.Oh.2003) (citing Community Res╜idential Servs. v. United States, 2003 WL 21033239 at * 1 (M.D.N.C. May 7, 2003); Carroll v. United States, 217 F.Supp.2d 852, 858 (W.D.Tenn.2002)).

1. CDP Hearing and IRS determination

Before the issuance of an IRS levy or upon the filing of a notice of federal tax lien, the IRS is required to notify a taxpayer of his right to request a CDP hear╜ing within 30 days of the notice of intent. See 26 U.S.C. ╖╖ 6330(a) and 6331(d); see also Bartley, 343 F.Supp.2d at 652. Tur╜ner timely requested a CDP hearing and attached the issues he planned to raise at the hearing. (Doc. # 1 Ex. B.) The Ap╜peals Office of the IRS denied Turner's request for an in-person hearing, but granted him the opportunity to either ap╜pear for a scheduled telephone hearing or to raise his arguments through correspon╜dence. (Doc. # 1 Ex. F.) Turner declined the telephone hearing, reiterated his re╜quest for an in-person hearing, and now argues that the denial of the in-person hearing violated his due process rights. (Doc. # 1 Ex. E; Doc. # 10.)

At the CDP hearing, a taxpayer may "raise any relevant issue relating to the unpaid tax or the proposed levy," including the appropriateness of the collection action and offers of collection alternatives. 26 U.S.C. ╖ 6330(c)(2)(A); see also Bartley, 343 F.Supp.2d at 652-653. The taxpayer may also raise any "challenges to the exis╜tence or amount of the underlying tax liability" if he did not receive prior statuto╜ry notice of the tax liability or did not have another opportunity to dispute the issue. 26 U.S.C. ╖ 6330(c)(2)(B). "The appeal procedures, however, do not extend to cases involving solely the failure or refusal to comply with the tax laws because of moral, religious, political, constitutional, conscientious, or similar grounds." 26 C.F.R. 601.106(b) (2004); see also Jewett v. C.I.R. , 292 F.Supp.2d 962, 966 (N.D.Ohio 2003).

Here, the Appeals Office declined Tur╜ner's request for an in-person hearing be╜cause of his intention to raise issues not relevant to the penalty assessed for filing a frivolous return. (Doc. # 1, Exhibit F.) The office did, however, offer him a tele╜phone conference or the opportunity to present his arguments in writing. ( Id. )

The Court finds that the Appeals Officer complied with the hearing require╜ments. Turner is not guaranteed and not entitled to an in-person hearing. Quigley v. U.S. , 358 F.Supp.2d 427, 431-32 (E.D.Pa.2004). The Code of Federal Reg╜ulations expressly states that because the formal requirements of the Administrative Procedure Act, 5 U.S.C. ╖ 551, et seq., do not apply to CDP hearings, "[a] hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Ap╜peals officer or employee and the taxpayer or the taxpayer's representative, or some combination thereof." 26 C.F.R. ╖ 301.6330-1(d) A-D6 (2004). Because the communication between Turner and the IRS consisted of written documentation, an offer of a scheduled telephone hearing, and an opportunity for an in-person hear╜ing if Turner wished to raise relevant is╜sues pertaining to the tax penalty, the Court holds that the Appeals Office of the IRS did not violate Turner's right to a fair hearing as prescribed by 26 U.S.C. ╖ 6330. See Quigley, at 431-32 (holding same).

2. Appropriateness of the Collection Action

Turner argues that the issues he planned to raise at an in-person hearing were relevant because they referred to the appropriateness of the collection action pursuant to 26 U.S.C. ╖ 6220(c)(2)(A)(ii). (Docs.# # 1, 10). Turner asserts that the collection action was inappropriate because (1) he did not receive a statutory notice and demand for payment of the taxes at issue; (2) no valid assessment for the un╜derlying income taxes was ever made; (3) there was no verification from the Secre╜tary of the Treasury that the procedures have been met; and (4) the IRS failed to provide the names, ID numbers, and job descriptions of the IRS employees who imposed the frivolous penalty against him. (Id.) This Court disagrees. Turner's "challenge to the appropriateness of the collection action" consisted of arguments and demands that federal courts have con╜sistently deemed frivolous.

Turner's contention that he did not receive a statutory notice and demand form is unavailing. Carroll , 217 F.Supp.2d at 856. The form on which a notice of assessment and demand for payment is made is "irrelevant as long as it provides the taxpayer with all the information re╜quired under 26 U.S.C. ╖ 6303(a)." Id. (citing Elias v. C onnett, 908 F.2d 521, 525 (9th Cir.1990)). Section 6303 requires that the Secretary give notice to the person liable for the tax, within 60 days of the assessment, indicating the amount owed and demanding the payment of it. The notice should be sent to the person's last known address. 26 U.S.C. ╖ 6303(a). The final notice attached to Turner's complaint satisfies these requirements. (Doc. # 1 Ex. C); Carroll , 217 F.Supp.2d at 856.

Turner's argument that no valid assess╜ment of the underlying income tax was made is also without merit. The govern╜ment is not required to issue an assess╜ment while the taxpayer's timely challenge to a notice of deficiency is still pending. 26 U.S.C. ╖ 6213(a); see also Wos v. C.I.R., 110 Fed.Appx. 689, 691 (7th Cir. 2004) (unpublished) (citing Reynolds v. CIR, 296 F.3d 607, 613 (7th Cir.2002)); Murray v. CIR, 24 F.3d 901, 903 (7th Cir.1994).

Turner asserts that the IRS did not comply with the law, specifically 26 U.S.C. ╖ 6330, because the hearing officer failed to present verification and delega╜tion of authority from the Secretary. (Docs.# # 1, 10). Again, this Court dis╜agrees. Courts have consistently rejected the argument that the IRS must produce evidence of delegated authority from the Secretary of the Treasury:

Relevant statutes and regulations dem╜onstrate . . . that the Secretary does have the power to collect taxes, and that such power can be delegated to local IRS agents . . . . The delegation of authority down the chain of command, from the Secretary, to the Commissioner of the Internal Revenue, to local IRS employ╜ees constitutes a valid delegation by the Secretary to the Commissioner, and a redelegation by the Commissioner to the delegated officers and employees.

See 36 C.F.R. ╖ 301.7701 (2004); Torni╜c hio, 263 F.Supp.2d at 1097 (citing Rennie, 216 F.Supp.2d at 1082) (quoting Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992)); see also Bartley, 343 F.Supp.2d at 653 (citing 26 U.S.C. ╖ 7805(a) (stating the Secretary of the Treasury may delegate authority and responsibilities to others by prescribing rules or regulations.)). The Internal Revenue Code ("I.R.C.") does not require the IRS to publish these internal delegations of authority from the Secre╜tary to enforce the tax laws. Tornichio, 263 F.Supp.2d at 1097 (citing Hughes, 953 F.2d at 539; Rennie, 216 F.Supp.2d at 1082; Lonsdale v. United States, 919 F.2d 1440 (10th Cir.1990)). Furthermore, noth╜ing in ╖ 6330(c) requires that the IRS must provide this verification to Turner. Turnichio, 263 F.Supp.2d at 1096 (citing Rennie, 216 F.Supp.2d at 1080; see also Nestor v. Comm'r ; 2002 WL 236682 (U.S.Tax Ct.2002)).

Turner claims that the determination should be set aside because the IRS failed to provide him with the names, identifica╜tion numbers, and job descriptions of the employees who imposed the tax against him. This information is not relevant to whether the penalty imposed was proper. Gillett, 233 F.Supp.2d at 883 (citations omitted). Federal courts have also deemed arguments like this to be "frivo╜lous." Id . (citing Hoffman v. United States, 209 F.Supp.2d 1089, 1094 (W.D.Wash.2002)). Accordingly, the Court finds each of Turner's arguments to be meritless and holds that the collection ac╜tion was appropriate.

3. Right to a Fair Hearing

Turner also argues that he was denied the right to a fair hearing pursuant to 26 U.S.C. ╖ 6330 because the officer conduct╜ing the appeal, Michael Duffy ("Duffy"), was not impartial (Doc. # 1 at Ex. E; Doc. # 10). The officer or employee conducting the CDP hearing must be impartial and have had no prior involvement with the penalty imposed before the hearing. 26 U.S.C. ╖ 6330(b)(3); see also Herip v. United States, 106 Fed.Appx. 995, 999 (6th Cir.2004) (unpublished) (citing MRCA In╜formation Services v. United States, 145 F.Supp.2d 194, 200 (D.Conn.2000)). Tur╜ner makes no showing that Duffy had been involved in this case prior to the scheduled telephone hearing.

Additionally, when making the final de╜termination, the appeals officer must base his decision on three factors: (1) the verifi╜cation that the requirements of any appli╜cable law of administrative procedure have been met; (2) the issues raised by the taxpayer, and (3) the balance between the need for efficient tax collection and the legitimate concern of the taxpayer that any collection action against him be no more intrusive than necessary. 26 U.S.C. ╖ 6330(e)(3); see also Carroll, 217 F.Supp.2d at 857. Turner provides no evi╜dence that Duffy failed to comply with these requirements or failed to be impar╜tial when making his final determination. Therefore, the Court holds that the IRS has satisfied ╖ 6330(b)(3)'s impartiality re╜quirement. Herip, 106 Fed.Appx. at 999 (holding same).

4. Underlying tax liability

Turner also repeatedly challenged the underlying tax liability in both his request for a CDP hearing and in his complaint. (Doc. # # 1, 10.) In his chal╜lenge to the underlying tax liability, Tur╜ner also argues that the IRS failed to provide him with the specific section of the U.S.Code that makes him liable for the income tax at issue. As stated above, the underlying tax liability at issue refers only to the $500 penalty assessed to Turner for filing a frivolous claim. 26 U.S.C. ╖ 6671(a). To the extent that Turner is challenging his liability for the income tax that generated the penalty, such claims fall within the exclusive jurisdiction of the United States Tax Court and must be dis╜missed. Gillett, 233 F.Supp.2d at 884 (cit╜ing Diefenbaugh v. Weiss, 234 F.3d 1267, 2002 WL 1679510 (6th Cir.2000)); see also discussion supra.

There is no doubt as to the validity of the penalty assessed against Turner. Turner filed his income tax return with zeroes on all lines of the Form 1040 relat╜ed to wages and income for the 2002 tax year, even though income documents pro╜vided to the IRS show that he earned $34,903 in wages and $77 in interest during 2002. Wages are income, 26 U.S.C. ╖ 61, upon which Turner must pay tax, 26 U.S.C. ╖ 61. See Sisemore v. United States, 797 F.2d 268, 270 (6th Cir.1986). On its face, the return is frivolous and subject to penalty pursuant to 26 U.S.C. 6702(a). Numerous courts have found that any argument to the contrary is frivolous. Bartley, 343 F.Supp.2d at 654 (citing Sise╜more, 797 F.2d at 270; Coleman v. Com╜missioner, 791 F.2d 68, 70 (7th Cir.1986)); Sullivan v. United States, 788 F.2d 813, 815 (1st Cir.1986); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985); 1n re Hopkins, 192 B.R. 760, 762-63 (D.Nev. 1995); see also Rennie v. Internal Reve╜nue Serv., 216 F.Supp.2d 1078, 1083 (E.D.Cal.2002); United States v. Connor, 898 F.2d 942, 943 (3rd Cir.1990) ("every court which has ever considered the issue has unequivocally rejected the argument that wages are not income."); Connor v. Commissioner , 770 F.2d 17, 19 (2nd Cir. 1985); United States v. Francisco, 614 F.2d 617, 619 (8th Cir.1980) (an appeal of the issue itself is frivolous); Gillett, 233 F.Supp.2d at 881; Tornichio, 263 F.Supp.2d at 1097 ("Courts have consis╜tently found identical arguments to the ones here frivolous."). Thus, Turner's po╜sition has no basis in fact and law.

Accordingly, the Court GRANTS the Government's motion to affirm the Notice of Determination of the IRS.

B. MOTION TO DISMISS DAMAGE CLAIM

The second half of the Government's motion argues that the Court should dis╜miss Plaintiff's damages claim for lack of subject matter jurisdiction. The Court will first present the standard for address╜ing Defendant's motion before turning to the merits of this argument.

1. STANDARD OF REVIEW

Defendant contends that dis╜missal of Plaintiff's damage claim is war╜ranted under Fed.R.Civ.P. 12(b)(1), which enables a defendant to raise by motion the defense of "lack of jurisdiction over the subject matter." When a party challenges subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1), the plaintiff has the bur╜den of proving that the Court has jurisdic╜tion over the cause of action. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). The Court, however, construes the allegations of the complaint favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In rul╜ing on such a motion, the district court may resolve factual issues when necessary to resolve its jurisdiction. Madison-Hughes, 80 F.3d at 1130; Rogers, 798 F.2d at 918. Further, when considering a motion to dismiss for lack of subject matter jurisdiction, this Court may look beyond jurisdictional allegations in the complaint and the Court may consider whatever evi╜dence the parties submit. Fairport In╜tern. Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1081 (6th Cir.1997); Torni╜chio v. United States, 263 F.Supp.2d 1090, 1094-1095 (N.D.Oh.2002).

2. CLAIM FOR DAMAGES

Turner asserts that because he was denied a hearing, the IRS recklessly and intentionally disregarded the I.R.C., thereby allowing him to sue for damages under 26 U.S.C. ╖ 7433. (Docs.# 1, 10). The United States is immune from law╜suits unless it expressly consents to a waiver of its sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). The IRS, as part of the United States govern╜ment, is therefore entitled to the same immunity. Ramos v. Internal Revenue Service, 351 F.Supp.2d 5, 11 (N.D.N.Y. 2004). The I.R.C. allows a taxpayer to sue for damages in connection with a collection of federal tax where, "with respect to a taxpayer, any officer or employee of the IRS recklessly or intentionally disregards any provision of this title, or any regula╜tion promulgated under this title . . . . " 26 U.S.C. ╖ 7433. The scope of ╖ 7433 ex╜tends only to unauthorized collection ac╜tions; it does not include determinations of liability. See Tornichio, 263 F.Supp.2d at 1098 (citing H.R. Conf. Rep. No. 1104 at 229 and 1998-3 C.B. at 719).

Section 7433, however, only pro╜vides for limited waiver of sovereign im╜munity, and the United States has not waived its sovereign immunity "unless the taxpayer exhausts available administrative remedies." Tornichio, 263 F.Bupp.2d at 1098. This Court lacks jurisdiction if the taxpayer fails to exhaust these administra╜tive remedies. Id. (citing Venen v. United States, 38 F.3d 100, 103 (3rd Cir.1994); Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir.1992)). Here, Turner makes no showing that he exhausted his adminis╜trative remedies regarding the alleged col╜lection damages. Therefore, because of Turner's failure to exhaust his administra╜tive remedies, the Court lacks jurisdiction to entertain his ╖ 7433 claim for damages.

Turner also seeks punitive dam╜ages from the United States. However, Turner is barred from seeking punitive damages under the Federal Tort Claims Act ("FTCA"). (Docs.# # 1, 10). Under the FTCA, the United States waives its sovereign immunity exclusively for tort ac╜tions against the United States, its agen╜cies, and its employees acting within the scope of their employment. 28 U.S.C. ╖ 2679; see also Arbour v. Jenkins, 903 F.2d 416, 419 (6th Cir.1990). However, the United States is not liable for punitive damages or interest prior to judgment. 28 U.S.C. ╖ 2674. Furthermore, the FTCA expressly states that its provisions do not apply to any claim that arises from the assessment or collection of any tax. 28 U.S.C. ╖ 2680; see also Tornichio, 263 F.Supp.2d at 1099. Therefore, Turner's claim for punitive damages against Defen╜dant is barred by sovereign immunity, and this Court lacks jurisdiction to entertain this claim. The Court GRANTS Defen╜d ant's motion to dismiss Turner's claims for damages.

III. Conclusion

Based on the foregoing, the Court af╜firms the determination of the IRS and dismisses Turner's claims for damages. The Clerk is instructed to enter judgment accordingly and terminate the case upon the docket records of the United States District Court for the Southern District of Ohio, Eastern Division.

IT IS SO ORDERED.

Комментарии

Вы также можете   зарегистрироваться  и/или  авторизоваться  

Имя *

Комментарий *    

Добавить комментарий