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7217- Ban on Executive Branch Influence Over Audits: IRS Employees

   

[2001-2 USTC ¶50,469] Fred L. Gonser, Plaintiff v. United States of America, on behalf of the Internal Revenue Service, Glen Minsico, Pam Charbonneau and Kim Joiner, Defendants

U.S. District Court, No. Dist. Ga., Macon Div., CIV. 5:00-CV-298-3-WBH, 5/17/2001

[Code Sec. 7421 ]

Suits against the U.S.: Injunctive relief: Assessment and collection of tax: Anti-Injunction Act: Irreparable damage.--A former IRS agent's request for injunctive relief to prohibit the IRS from investigating and harassing him, or disclosing his return information was, as drafted, barred by the Anti-Injunction Act. The taxpayer failed to show that he would suffer irreparable harm absent an injunction because his complaint merely described general instances of improper conduct. However, the court granted the taxpayer leave to amend his complaint.
[Code Sec. 7431 ]

Suit against the U.S. : Unauthorized disclosure: Cause of action.--The government was not entitled to summary judgment with regard to a former IRS agent's claim for unlawful inspection and wrongful disclosure of return information. The only authority cited by the government was a case decided before the amendment of Code Sec. 7431 by the Taxpayer Browsing Protection Act (P.L. 105-35); thus, it was irrelevant.

[Code Sec. 6103 ]

Suit against the U.S. : Freedom of Information Act: Civil damages: Exhaustion of remedies.--A former IRS agent failed to state a claim for alleged violations of the Freedom of Information Act (FOIA) by current IRS employees. Claims against federal employees or for money damages are not permissible under FOIA. He also failed to show that he exhausted his administrative remedies before bringing suit.

[Code Sec. 7214 ]

Suit against the U.S. : Penalties, criminal: Offenses by U.S. employees.--A former IRS agent's claim against current IRS employees for alleged harassment and improper tax return disclosures was dismissed. Code Sec. 7214 , which provides penalties for unlawful acts committed by IRS agents, is a criminal statute that only the government may enforce.
[Code Sec. 7217 ]

Suits against the U.S. : Penalties, criminal: Offenses by members of executive branch.--A former IRS agent's claim against current IRS employees for alleged harassment and improper tax return disclosures was dismissed. The application of Code Sec. 7217 , which imposes a penalty over influencing an audit, is limited to members of the executive branch.
[Code Sec. 7435 ]

Suits against the U.S. : Civil damages: Third-party enticement.--Genuine issues of fact existed with regard to a former IRS agent's claim that the IRS improperly questioned his tax representative. It was unclear whether the individual actually worked for the taxpayer.
[Code Sec. 7402 ]

 

Suits against the U.S. : IRS Employees: Bivens claim: Summary judgment.--The government was denied summary judgment with regard to a former IRS agent's Bivens-type claims because its motion did not address the allegation.
[Code Sec. 7402 ]

Suits against the U.S. : Discovery: Motion to compel.--A former IRS agent's motion to compel the government to answer interrogatories in his suit against IRS agents for harassment and improper disclosures was denied because a government motion to dismiss was pending.
ORDER

HUNT, JR., District Judge:

Before the Court are Defendants' Motion to Dismiss [9], Plaintiff's Motion to Compel [15], Plaintiff's Motion to Amend the Complaint [17], and Plaintiff's request for Oral Argument [20]. Plaintiff brings the underlying suit for damages and to enjoin the Georgia Division of the Internal Revenue Service ("IRS") pursuant to 28 U.S.C. §§1331, 1340, 1343, 1346 and 1361. Plaintiff alleges jurisdiction and venue are proper pursuant to 28 U.S.C. §1391.

For the reasons that follow, the Court GRANTS Plaintiff's Motion to Amend the Complaint [17], GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss [9], DENIES Plaintiff's Motion to Compel [15], and DENIES Plaintiff's request for Oral Argument [20].

I. BACKGROUND

As this case is before the court on Defendant's Motion to Dismiss, the Court must accept the allegations in Plaintiff's Complaint as true and must construe all facts in a light most favorable to the Plaintiff. Fortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). Viewed in this light, the following facts emerge: ¹

Plaintiff, Fred L. Gonser is a Certified Public Accountant ("CPA") and former agent of the IRS, where he was employed from 1971 to 1982. Most of this time he worked for Group 1312 in the Macon , Georgia office. At some point during 1980 and 1981, Defendant Glen Minsico and Plaintiff were both employed by the IRS, Macon office, Group 1312. During that time, their manager was Mr. Dick Puckett. As a manager, Mr. Puckett caused disruption amongst the agents and was generally disliked. The agents and other employees under Mr. Puckett's management drafted a letter on February 27, 1981 , that voiced their concerns with his management. Defendant Minsico was a personal friend of Mr. Puckett and the sole employee opposed to the letter written by the other employees. Defendant Minsico considered Plaintiff to be the "ring leader" of the group concerned about Mr. Puckett's management. Apparently, Mr. Puckett resigned from the IRS subsequent to the receipt of the letter from his employees.

Plaintiff resigned from the IRS on February 19, 1982 , and entered private practice as a CPA in Macon , Georgia . Plaintiff's practice requires him to file tax returns with the Macon Division of the IRS and to represent taxpayers before that entity. Sometime after Plaintiff's resignation, Defendant Munsico became the Group Manager of the Macon Division, Group 1312.

The crux of Plaintiff's Complaint involves Defendant Minsico's "vindictive course of action against Plaintiff" as Manager of the Macon Division. Plaintiff alleges that Defendants' intent is to harm him and his clients and put him out of business. Plaintiff's Complaint alleges, inter alia, that Defendant Minsico has made false statements to third parties about Plaintiff and his accounting practice in violation of numerous federal laws and IRS rules, policies and procedures, that Defendant Minsico has improperly communicated with Plaintiff's clients in violation of Circular 230, that Defendant Minsico has improperly maintained private files and background information on Plaintiff in violation of IRS rules, that Defendant Minsico has improperly inspected Plaintiff's return information, Plaintff's clients return information and maintained lists of Plaintiff's clients in violation of Sections 7214 and 7431 of the IRS Code. Plaintiff's Complaint, as amended, alleges that Defendants' actions have also violated the Taxpayer Bill of rights, the Privacy Act and the Fourth Amendment of the United States Constitution.

Plaintiff alleges that Defendants Kim Joiner, Pam Charbonneau and other agents conspired with Defendant Minsico in his scheme to ruin Plaintiff and his business. Defendants have sought to assess high and unfounded taxes in audits of Plaintiff's clients' returns. Defendants have frequently assessed preparer penalties "against Defendant" as part of the audits. ² Corroborating the unsoundness of Defendants unfounded tax assessments and preparer penalties, Plaintiff notes that the Appeals Division of the IRS has either issued no change reports ³ or reduced the taxes substantially and that all preparer penalties "against Defendant" were dismissed upon findings by the Appeals Division that the penalties were without merit. Plaintiff explains that Defendants would often delay the issuing of reports on Plaintiff's clients so that his clients, hamstrung by the statute of limitations, would not be afforded an opportunity to pursue an appeal through the Appeals Division. ⁴ Finally, Plaintiff avers that Defendants have failed to investigate or otherwise respond to numerous complaints that he has filed in connection to Defendants' actions described herein.

II. DISCUSSION

A. Motion to Amend the Complaint

Plaintiff moves the Court for leave to Amend his Complaint. Pursuant to rule 15(a) of the Federal Rules of Civil Procedure, a party may amend a complaint once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15. Defendants correctly point out that their present Motion to Dismiss is not a responsive pleading. See Fed. R. Civ. P. 7; see also Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995). Defendants represent that they are unopposed to this Motion. Accordingly, the Court hereby GRANTS Plaintiff's Motion to Amend the Complaint.

B. Standard under 12(b)(6)

A district court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Powell v. United States [91-2 USTC ¶50,514], 945 F.2d 374, 375 (11th Cir. 1991). In evaluating a motion to dismiss for failure to state a claim, a court must accept as true all allegations contained in the complaint and must view the complaint in the light most favorable to the plaintiff. Peterson v. Atlanta Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993). However, while the Court must weigh every inference in plaintiff's favor, "conclusory allegations and unwarranted deductions of fact" may not be taken as true. Associated Home Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974). ⁵ The "threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low." Quality Foods de Centro America, S.A. v. Latin America Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir. 1983). Thus, a court can dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) only when a plaintiff "can prove no set of facts which would entitle him to relief." Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir. 1996).

C. Defendants' Motion to Dismiss

Defendants move to dismiss Plaintiff's Complaint arguing that (1) Plaintiff's request for injunctive relief is barred by the Anti-Injunction Act (the "Act"), (2) Plaintiff has failed to state a claim for which relief can be granted under any theory, and (3) Plaintiff's Complaint fails to state a claim against the individual Defendants.

1. Plaintiff's Claim for Injunctive Relief

Count One of Plaintiffs' Complaint prays for injunctive relief against Defendants. ⁶ Count One alleges that Defendants "promulgated a malicious audit against an affiliate of Plaintiff, violated Circular 230 Internal Revenue Code §7521(b) and (c), 7605(b) and other rules for practice before the Internal Revenue Service." Plaintiff also complains that Defendants encouraged Plaintiff's clients to file complaints against him, subjected taxpayers to unnecessary examinations or investigations and committed various other violations of the statutes, rules, and regulations in furtherance of their campaign against Plaintiff. ⁷ "In further support of the need for injunctive relief," Plaintiff notes that all of the penalties Plaintiff alleges were unlawfully assessed against him by Defendants were overturned and that in response to all of the audits performed by the Macon Division, the Appeals Division either issued "no change reports" or substantially reduced the assessment.

Plaintiff has amended his complaint to request the Court to compel Defendants to comply with and enforce IRS code §7214. The Amended Complaint also requests the Court to issue a writ of mandamus pursuant to 28 U.S.C. §1361 to compel Defendants to enforce compliance with the Internal Revenue Code §§6103, 7214, 7431 and 7435 and compel compliance with the IRS internal policies regarding (1) the improper inspection and disclosure of Plaintiff's income information, (2) the unauthorized maintenance of files on Plaintiff, (3) the illegal interview of Plaintiff's employees, and (4) the improper enticement of Plaintiff's representatives.

Defendants move to Dismiss Count One arguing, inter alia, that injunctive relief is barred by the Anti-Injunction Act, Section 7241 of the Internal Revenue Code. 26 U.S.C. §7241. Defendants maintain that Plaintiff's suit clearly falls within the purview of the Act and that the "special circumstances" necessary for the invocation of the judicially created Enochs exception to the Act are not applicable in this case. The Anti-Injunction Act specifically provides as follows:

(a) [with certain specified exceptions not applicable to this case ⁸], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

26 U.S.C. §7421 (Prohibition of Suits to Restrain Assessment or Collection). The primary purpose of the Act is "the protection of the Government's need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference and to require that the legal right to the disputed sums be determined in a suit for refund." Bob Jones University v. Simon [74-1 USTC ¶9438 ], 416 U.S. 725, 736, 94 S.Ct. 2038, 2046 (1974). Another objective of the statute is the "protection of the collector from litigation pending a suit for refund." Id. [74-1 USTC ¶9438 ], 416 U.S. at 737, 94 S.Ct. at 2046. The Act applies to suits that directly implicate the actual assessment or collection of revenue as well as activity that is intended or may culminate in the assessment or collection of taxes. Smith v. Rich [82-1 USTC ¶9206 ], 667 F.2d 1228, 1230 (5th Cir. 1982). This includes injunctions against IRS investigations and allegedly harassing activity. Graham v. United States [82-2 USTC ¶9432 ], 528 F.Supp. 933, 937 (E.D. Pa. 1981); See also Davidson v. C.I.R. [85-1 USTC ¶9272 ], 589 F.Supp. 158 (D.N.Y. 1984) (holding that Act barred suit for injunctive relief where taxpayer alleged that IRS action was racially motivated); DeJulis v. Alexander [75-1 USTC ¶9502 ], 393 F.Supp. 823 (D. Wyo. 1975) (dismissing suit to enjoin alleged harassment by IRS officers where the tax involved was not illegal); White v. Boyle [75-1 USTC ¶9381 ], 390 F.Supp. 514 (D. Va. 1975) (aff'd [76-2 USTC ¶9597 ], 538 F.2d 1077) (dismissing suit against IRS agents alleging that taxpayer was singled out because of his political activities and criticism of the IRS).

In addition to the exceptions enumerated in the statute (inapplicable in this case), there is a narrow judicially created exception to the Act which is sometimes termed the Enochs exception. Enochs v. Williams Packing & Navigation Co. [62-2 USTC ¶9545], 370 U.S. 1, 82 S.Ct. 1125 (1962). The Enochs exception to the prohibition of suits for injunctive relief allows a suit for injunctive relief where it is clearly shown that the government is definitely not going to prevail ⁹ and where the taxpayer has established the equitable grounds for injunctive relief, i.e. that the plaintiff has no other legal remedy and if not enjoined, the plaintiff-taxpayer will suffer irreparable harm. Id. [84-2 USTC ¶9824], 370 U.S. at 6-8. See Hansen v. United States [84-2 USTC ¶9824], 744 F.2d 658 (8th Cir. 1984) (holding that taxpayer must show that under the most liberal view of the law and the facts, there was no possibility that the government could establish its claim and that irreparable harm would occur absent an injunction); Kemlon Products and Development Co. v. United States [81-1 USTC ¶9267], 638 F.2d 1315 (5th Cir. 1981) (holding that in order to satisfy both prongs of Enochs, the plaintiff must show (1) irreparable injury and inadequacy of legal remedy and (2) the situation must be such that under no circumstances can the government ultimately prevail, with the burden on the plaintiff to establish both criteria).

Plaintiff, citing Estate of Michael v. Lullo [99-1 USTC ¶60,339], 173 F.3d. 503 (4th Cir. 1999), argues that his suit is a Mandamus action and as such is not overridden by the Anti-Injunction Act. Plaintiff claims that Michael holds that the Writ of Mandamus and Venue Act may be invoked when there is a clear right to relief sought, a clear duty on the part of the IRS to do the acts requested, and a lack of another remedy.

Although Michael does grapple with the apparent conflict between the Mandamus and Venue Act, 28 U.S.C. §1361, and the Anti-Injunction act, it does not support Plaintiff's position. The Michael court found that the Mandamus Act did "not override the Anti-Injunction Act." Id. at 506. The Court held that in order to prevail, the plaintiff had to "show either that its claim does not implicate the Anti-Injunction Act or that it fits within the narrow exception to that act." Id. The Court in Michael then went on to enumerate the factors that must be present in order to invoke the Enochs exception: (1) "irreparable injury, the essential prerequisite for injunctive relief in any case," and (2) "certainty of success on the merits." Id. In reversing the district court's dismissal of Plaintiff's claim, the Michael court ultimately found that the plaintiff had established irreparable injury and had established that, "under the most liberal view of the law and facts, the United States cannot establish its claim." Id.; see also Davidson, supra. (denying injunctive relief based on the Anti-Injunctive Act because it could not be said that the government would be unable to establish the validity of assessments made and taxpayers did not establish lack of legal remedy).

Here, Plaintiff has not established that his claim does not implicate the Anti-Injunction Act or that the claim fits within the narrow exception to that Act. See Bowers v. United States [70-2 USTC ¶9560], 423 F.2d 1207 (5th Cir. 1980) (dismissing taxpayer's suit holding that he did not establish that his case fell within the judicial exception to the Anti-Injunction Act); see also Keese v. United States [86-1 USTC ¶9389], 632 F.Supp. 85 (S.D. Tex 1985) (dismissing a suit brought by an income tax preparer finding that the preparer failed to establish an irreparable injury beyond conclusory allegations that the IRS was injuring her business and reputation or that the government would under no circumstances prevail). Recognizing that the Federal Rules of Civil Procedure prescribe a liberal pleading standard, the Court GRANTS Plaintiff leave to Amend his Complaint in accordance with this Order so that he may clarify what equitable relief, if any, he may be entitled to. If Plaintiff desires to submit an amended complaint, it must be filed within fifteen (15) days of receipt of this Order.

The Court recognizes, as delineated above, that certain exceptions exist to allow equitable relief despite the Anti-Injunction Act's prohibition of such relief. The injunctive relief, however, when granted, is always in conjunction with a claim of some wrongdoing. In a typical case, the wrongdoing would involve the levy of an unlawful tax assessment by the IRS against a taxpayer. If this is the case here, Plaintiff, in his second amended complaint needs to identify the tax assessment that was wrongfully assessed so that the Court can address Plaintiff's claim as it relates to that allegedly unlawful action. As drafted, Count One of Plaintiff's Amended Complaint references the general factual scenario and mentions a laundry list of alleged statutory violations: Circular 230 of the Internal Revenue Code, Sections 6103, 7214, 7431, 7435, 7521(b) and (c), and 7605(b) of the Internal Revenue Code, various rules for practice before the Internal Revenue Service, as well as IRS internal policies regarding the improper inspection and disclosure of Plaintiff's income information, the unauthorized maintenance of files on Plaintiff, the illegal interview of Plaintiffs employees, and the improper enticement of Plaintiff's representatives. Count One does not, however, allege, or specify in any way what activity constitutes a violation of the statutes listed therein.

Accordingly, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's claim for injunctive relief in Count One but grants Plaintiff leave to amend his Complaint a second time.

2. Plaintiff's Claim pursuant to 26 U.S.C. §7431

Counts One, Two and Three of Plaintiff's Complaint, as amended, allege the violation of 26 U.S.C. §7431. Section 7431 states that if any officer or employee of the United States knowingly or negligently inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States . 26 U.S.C. §7431. Section 6103 states that no officer or employee of the United States shall disclose any return or return information obtained by him in any manner in connection with his service as such officer or an employee. 26 U.S.C. §6103.

Defendants argue that Plaintiff fails to state a claim for which relief can be granted because Plaintiff (1) has not identified the specific return or return information that was unlawfully disclosed, and (2) has not alleged the disclosure of any information that would be defined as "return information." Defendants argue that Plaintiff can not state a claim under Section 7431 for the disclosures made with respect to Joan Martin as the statute allows recovery only for information pertaining to the taxpayer-litigant, Plaintiff in this case, and not an "associate" of Plaintiff.

Plaintiff argues generally that the Federal Rules of Civil Procedure reject the notion that pleadings should be construed strictly so that judgments are rendered on the skill of a litigant in drafting pleadings rather than on the substance of the case. Plaintiff maintains that construed liberally, his Complaint sufficiently states a claim for which relief can be granted. In addition to this general argument, Plaintiff specifically argues that Section 7431 provides a cause of action for the unlawful inspection or disclosure of returns and that his Complaint has sufficiently stated a claim under both theories.

Defendants' Motion does not address Plaintiff's claim of an unlawful inspection. Nor does the sole case cited by Defendants address the unlawful inspection prong of a claim pursuant to Section 7431. The Court notes that 26 U.S.C. 7431 was amended in 1997 to include liability for unlawful inspection as well as the already existing unlawful disclosure. See 26 U.S.C. 7431 (2000), amended by Taxpayer Browsing Protection Act, PL 105-35,11 Stat. 1104, August 5, 1997 . The decision in the case cited by Defendants was rendered in 1987, many years before this provision was enacted. See Flippo v. United States, 1987 U.S. Dist. LEXIS 16096 (W.D.N.C. May 13,1987).

Pretermitting an examination into the soundness of Defendants argument concerning Plaintiff's claim pursuant to Section 7431 for an unlawful disclosure in violation of 26 U.S.C. §6103, the Court finds that Plaintiff has stated a claim pursuant to Section 7431 for an unlawful inspection in violation of 26 U.S.C. §6103. Accordingly, the Court DENIES Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to 26 U.S.C. §7431.

The Court notes that Count Two of Plaintiff's Amended Complaint is also confusing as to which statutes are alleged to have been violated and which conduct on the part of Defendants comprised these violations. ¹⁰ The Court, therefore, orders Plaintiff to clarify Count Two in accordance with this Order when and if Plaintiff submits an Amended Complaint.

3. Plaintiff's Claim pursuant to 5 U.S.C. §552

One of the violations alleged to have been perpetrated by Defendants listed in Count Three of Plaintiff's Complaint, as Amended, is a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. §552. Defendants argue that (1) the FOIA does not authorize suit against federal employees or officers and (2) the FOIA does not provide for the recovery of money damages. Defendants also argue that Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials.

Plaintiff's Response restates that Defendants violated the FOIA and the Privacy Act of 1974, 5 U.S.C. §552(a). ¹¹ The Response does not, however, respond to Defendants valid objections detailed above. Accordingly, the Court finds that Plaintiff's claim pursuant to the FOIA should be dismissed because (1) the FOIA does not authorize suit against federal employees or officers, (2) the FOIA does not provide for the recovery of money damages, and (3) Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials. Accordingly, the Court GRANTS Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to the FOIA, 5 U.S.C. §552. ¹²

4. Plaintiff's Claim pursuant to 26 U.S.C. §7214 ¹³

Defendants argue that §7214 does not create a private cause of action. See Nordbrook v. United States [2000-1 USTC ¶50,247], 96 F.Supp.2d 944, 948 (D. Ariz. 2000) (dismissing claim pursuant to 26 U.S.C. §7214, finding "no basis for implying a civil cause of action from these federal criminal code provisions"). They argue that the statute is a criminal statute and only the government has the authority to enforce its criminal laws. Plaintiff's Response argues that the Writ of Mandamus and Venue Act confers jurisdiction upon him to bring a suit to move the Court to enforce these provisions. Plaintiff provides no case law and does not elaborate on this claim.

Section 7214 does not grant this Court jurisdiction or waive the Government's sovereign immunity. It merely provides a criminal penalty for the unlawful acts of revenue officers or agents. Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7214.

5. Plaintiff's Claim pursuant to 26 U.S.C. §7435

Defendants argue that Section 7435 provides a remedy to a taxpayer when an employee of the IRS compromises the determination of a tax due to a taxpayer in exchange for information from a representative about that taxpayer's tax liability. Defendants argue that the purview of the statute does not fit the factual scenario delineated in Plaintiff's Complaint, as amended. Section 7435 provides in relevant part:

(a) In general.--If any officer or employee of the United States intentionally compromises the determination or collection of any tax due from an attorney, certified public accountant, or enrolled agent representing a taxpayer in exchange for information conveyed by the taxpayer to the attorney, certified public accountant, or enrolled agent for purposes of obtaining advice concerning the taxpayer's tax liability, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

26 U.S.C. §7435. Simply put, Defendants point out that Plaintiff's claim pursuant to Section 7435 involves Ms. Joan Martin with whom Plaintiff claims that he is affiliated and Plaintiff's Complaint, as amended, does not allege that Ms. Martin prepared his taxes, or that she was his power of attorney, or that he conveyed any information to her "for purposes of obtaining advice concerning the taxpayer's liability." Id. Defendants do not cite any case law for their proposition. Plaintiff avers that Ms. Martin represented him regarding the assessment of penalties in front of the IRS and Defendants were aware that she represented him.

It is not clear, accepting as true all the allegations contained in the Complaint, as amended, and viewing the allegations therein in the light most favorable to the plaintiff, that no relief could be granted pursuant to 26 U.S.C. §7435. Because there remains a question as to whether Ms. Martin "represented" Plaintiff for purposes of this statute, or in what capacity she represented Plaintiff, it is unclear that Plaintiff's claim does not fall within the purview of this statute. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7435.

6. Plaintiff's Claim pursuant to 26 U.S.C. §7217

Plaintiff's Complaint, as amended, includes a claim for a violation of 26 U.S.C. §7217. Defendants move to dismiss this claim on the grounds that the statute is only applicable to the President, Vice President, any employee of the executive office of the President, any employee of the executive office of the Vice President, or any individual other than the Attorney General, serving in a position specified in 5 U.S.C. §5312. Plaintiff did not respond to this portion of Defendants' Motion. Section 7217 provides:

It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

26 U.S.C. §7217. The Court agrees with Defendants's position, Section 7217 is not applicable to the present case. Therefore, pretermitting any examination into Plaintiff's doubtful authority to enforce a criminal statute, the Court finds that this statute is inapplicable to the present suit and that Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7217.

7. Plaintiff's Claims against the individual Defendants

Defendants argue that Plaintiff's claims against the named individual Defendants are, in actuality, claims against the acts those Defendants took in their official capacity as agents of the United States . As such, Defendants argue, Plaintiff's claims are really against the United States and the claims against the individual Defendants' should be dismissed. Plaintiff responds that the individual Defendants are liable under Bivens. ¹⁴ Defendants have not responded to this argument. ¹⁵ Because Defendants' Motion does not address this matter, the Court declines to grant Defendants' Motion at this time. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims against the individual Defendants.

D. Plaintiff's Motion to Compel

Plaintiff moves this Court to compel Defendants to file answers to the Mandatory Interrogatories. Defendants correctly point out that they have filed a Motion to Dismiss and until this Court rules on that Motion, Defendants are not required to answer the Mandatory Interrogatories. Accordingly, the Court DENIES Plaintiff's Motion to Compel [15].

E. Plaintiff's Motion for Oral Argument

Plaintiff requests the opportunity to orally argue the present Motion to Dismiss. The Court perceives no reason to entertain oral arguments. Accordingly, the Court DENIES Plaintiff's Motion for Oral Argument [20].

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss. The Court GRANTS Defendants' Motion as it relates to

(1) the claim for injunctive relief found in Count One of the Complaint;

(2) the Freedom of Information Act ("FOIA") claim(s), 5 U.S.C. §552;

(3) the claim(s) pursuant to 26 U.S.C. §7214; and

(4) the claim(s) pursuant to 26 U.S.C. §7217.

These claims are hereby dismissed. Defendants Motion as to all of the other claims is DENIED but the Court grants Defendants leave to refile the present Motion in relation to Plaintiff's remaining claims within fifteen (15) days of receipt of Plaintiff's Amended Complaint.

The Court hereby ORDERS Plaintiff within fifteen (15) days of receipt of this Order to submit an amended complaint that:

(1) specifically states which statutory violation(s) or cause(s) of action are alleged in each of the counts contained in the Amended Complaint; ¹⁶ and

(2) the alleged conduct on the part of Defendants that comprises said violations.

It is so ORDERED.

¹ This Order grants Plaintiff's Motion to Amend his Complaint. As such, the factual background herein reflects and includes the allegations contained in the Complaint, as amended.

² Plaintiff's Complaint, as amended, frequently refers to preparer penalties "against Defendant." The Court believes Plaintiff is meaning to refer to penalties assessed against himself and the Court will, therefore, interpret these allegations as penalties assessed against Plaintiff.

³ Although not explained, the Court assumes a "no change report" is a decision on the part of the Appeals Division finding that, rather than agreeing with the Macon Division's assessment increasing a taxpayer's tax obligation, the assessment of tax should not be changed from the taxpayer's original filing. The "no change report," in effect, overrules a Macon Division assessment that more tax is owed.

⁴ Plaintiff's less than artful explanation of this delaying tactic leaves the Court in a quandary as to what exactly occurred. For the purposes of this Motion, the Court will assume that Plaintiff's Complaint alleges that Defendants, in violation of the IRS Code, purposefully delayed the production of some report so that Plaintiff's clients were somehow deprived of their rights, thereby causing harm to him and his practice.

⁵ Decisions of the former Fifth Circuit rendered prior to October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

⁶ Plaintiff argues that Defendants should be enjoined from auditing any of Plaintiff's clients, any clients of any of Plaintiff's employees or clients of any tax return preparers associated with Plaintiff. Count One requests the Court to order Defendants to transfer all of Plaintiff's clients' existing cases to offices other than the Macon , Georgia Division. The Count further requests the Court to prohibit any of the Defendants from communicating with the IRS agents who may receive the transferred cases. Plaintiff also requests that Defendant Minsico be prohibited from supervising his cases.

⁷ Plaintiff's Complaint states: "Defendants [sic] Plaintiff's clients to file complaints against Plaintiff, interfering with Plaintiff's client relationships, accelerating third party summons to embarrass Plaintiff and his clients when not necessary, and necessary [sic] subjecting taxpayers to unnecessary examinations or investigations." The Court includes language extracted from Plaintiff's Complaint to ensure the Court has correctly summarized his Complaint herein.

⁸ The exceptions enumerated in Subsection (a) are inapplicable here: Section 1015 relates to the tax assessed to gifts or trusts; Sections 6212 and 6213 apply when a taxpayer seeks review by the Tax Court of a notice of deficiency; Section 6225 relates to tax assessed against partnership items; Section 6246 relates to adjustments made regarding partnership items; Section 6331 relates to the authority of the IRS to collect delinquent taxes; Section 6672(b) applies only when the responsible person has filed a bond within thirty days of the assessment to ensure collection; Section 6694 applies to certain return preparer penalty proceedings; Section 7426 applies in certain third-party wrongful levy actions and Section 7429 applies in proceedings to review jeopardy assessments.

⁹ The case law holds that it must be clear that the government cannot win "under the most liberal view of the facts and law." See Smith v. Rich [82-1 USTC ¶9206], 667 F.2d 1228, 1230 (5th Cir. 1982).

¹⁰ For example, Count Two alleges that Defendants illegally contacted Plaintiff's associate but does not state what statute that activity violates. Count Two also alleges violations of Sections 7412 and 7435 but does not specify what activity comprised these violations. Count Two of the Amended Complaint also alleges that Defendants' actions violate the Taxpayer Bill of Rights and give rise to a Bivens claim but does not elaborate on these assertions.

¹¹ Plaintiff's Response conflates the FOIA, 5 U.S.C. §552, with the Privacy Act of 1974, 5 U.S.C. §552a.

¹² Defendants, in footnote, argue that §552a(g)(1)(D) does not apply to the determination of a taxpayer's tax liability. Apparently Defendants read Plaintiff's Complaint to allege a violation of this particular provision. Although the Court understands why Defendants were confused as to what Plaintiff was alleging pursuant to the Privacy Act of 1974, the Court does not find that this argument is sufficient to dismiss Plaintiff's claim pursuant to the Privacy Act of 1974, 5 U.S.C. §552a. To the extent Defendants' Motion is moving to dismiss this claim, it is DENIED.

¹³ Defendants' Motion confuses 26 U.S.C. §7412 with 26 U.S.C. §7214. Plaintiff's Complaint, as amended, refers to both statutes. Because the statutory language cited by Defendants is identical to that found in §7214, the Court will assume that Defendants arguments address the claims by Plaintiff pursuant to that statute even though Defendants cite "§7412" in the title of this section of their Motion and at various other junctures in their argument.

¹⁴ To find liability under Bivens a plaintiff must have proof of an affirmative causal connection between the defendants acting and the alleged constitutional deprivation. See Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983), cert. Denied, Lojuk v. Johnson, 474 U.S. 1067, 106 S.Ct. 822 (1986). A causal connection may be established by proving that the defendant was personally involved in the act or omission that led to a constitutional deprivation. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). In addition, the doctrine of respondeat superior does not apply in a Bivens action. Lojuk, supra.

¹⁵ Plaintiff's Amended Complaint was filed after Defendants filed the present Motion to Dismiss. The Amended Complaint included an allegation that Defendants were liable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).

¹⁶ This Second Amended Complaint should not include allegations for the claims pursuant to 5 U.S.C. §552, 26 U.S.C. §7214 and §7217, dismissed herein. Plaintiff is, however, invited to state with more clarity the claim, if any, for injunctive relief, and ordered to state with more clarity his remaining claims.