No administrative complaint under Reg. §301.7433-1 was filed by an individual's claim for damages for alleged violations of the Internal Revenue Code by IRS agents in the assessment and collection of his taxes was dismissed. Since he did not exhaust his administrative remedies, he failed to state a claim upon which relief could be granted. His contention that the regulation was a nonbinding interpretative regulation was without merit because exhaustion of administrative remedies is statutorily mandated and the Congress implicitly authorized the IRS to promulgate the exhaustion requirement. Section 7433(d)(1), however, limits such actions, by providing that "[a] judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433(d)(1). In accordance with this provision, the IRS has promulgated regulations that establish procedures to be followed by a taxpayer who believes that IRS officers or employees have disregarded provisions of the tax code in their collection activities. See 26 C.F.R. § 301.7433-1. Specifically, these regulations require that, prior to bringing suit in court, an aggrieved taxpayer must first submit his or her claim "in writing to the Area Director, Attn: Compliance Technical Support Manager[,] of the area in which the taxpayer currently resides," and further require that the claim must include: (i) The name, current address, current home and work telephone numbers and any convenient times to be contacted, and taxpayer identification number of the taxpayer making the claim; (ii) The grounds, in reasonable detail, for the claim (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service); (iii) A description of the injuries incurred by the taxpayer filing the claim (include copies of any available substantiating documentation or evidence); (iv) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and (v) The signature of the taxpayer or duly authorized representative. 26 C.F.R. § 301.7433-1(e). If such a claim is filed and the IRS has either issued a decision on the claim or has allowed six months to pass from the date of filing without acting on it, the taxpayer may proceed to file suit in federal district court pursuant to 26 U.S.C. § 7433(a). See 26 C.F.R. § 301.7433-1(d)(1). The regulations also allow the taxpayer to file suit immediately after the administrative claim is submitted if the administrative submission occurs during the last six months of the two-year limitations period. 26 C.F.R. § 301.7433-1(d)(2).
Michael R. Marsoun, Plaintiff v. United States, Defendant. U.S. District Court, D.C.; Civil Action No. 07-2078 (JDB), December 23, 2008.[ Code Sec. 7433]Constitutional claims: Claims against IRS employees: Bivens action: Damages: Exhaustion of administrative remedies: Failure to state a claim. --
BATES, United States District Judge: Plaintiff Michael Marsoun alleges that the Internal Revenue Service ("IRS") has acted in disregard of federal tax law and regulations in connection with the collection of taxes for tax years 1990 through 2003. He seeks damages against defendant United States pursuant to 26 U.S.C. § 7433 and the U.S. Constitution. Presently pending before the Court is defendant's motion to dismiss the amended complaint for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted. For the reasons that follow, the Court concludes that plaintiff has failed to state a claim upon which relief can be granted and, therefore, will dismiss this case pursuant to Fed. R. Civ. P. 12(b)(6).
Section 7433(a) of the Internal Revenue Code ("Code") authorizes taxpayers to bring an action for civil damages against any officer or employee of the IRS who acts in disregard of the Code or its implementing regulations in connection with collection activity. The provision authorizing this cause of action states:
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. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.
26 U.S.C. § 7433(a).Section 7433(d)(1), however, limits suc
h actions, by providing that "[a] judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433(d)(1). In accordance with this provision, the IRS has promulgated regulations that establish procedures to be followed by a taxpayer who believes that IRS officers or employees have disregarded provisions of the tax code in their collection activities. See 26 C.F.R. § 301.7433-1. Specifically, these regulations require that, prior to bringing suit in court, an aggrieved taxpayer must first submit his or her claim "in writing to the Area Director, Attn: Compliance Technical Support Manager[,] of the area in which the taxpayer currently resides," and further require that the claim must include:
(i) The name, current address, current home and work telephone numbers and any convenient times to be contacted, and taxpayer identification number of the taxpayer making the claim;
(ii) The grounds, in reasonable detail, for the claim (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service);
(iii) A description of the injuries incurred by the taxpayer filing the claim (include copies of any available substantiating documentation or evidence);
(iv) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and
(v) The signature of the taxpayer or duly authorized representative.
26 C.F.R. § 301.7433-1(e). If such a claim is filed and the IRS has either issued a decision on the claim or has allowed six months to pass from the date of filing without acting on it, the taxpayer may proceed to file suit in federal district court pursuant to 26 U.S.C. § 7433(a). See 26 C.F.R. § 301.7433-1(d)(1). The regulations also allow the taxpayer to file suit immediately after the administrative claim is submitted if the administrative submission occurs during the last six months of the two-year limitations period. 26 C.F.R. § 301.7433-1(d)(2).Plaintiff alleges that the United States, through the IRS and its employees, has unlawfully taken the position that he owes taxes for the period 1990 to 2003, and has disregarded the provisions of the Internal Revenue Code and its regulations in the course of pursuing collection activities against him. Am. Compl. at 5-25. Plaintiff enumerates 27 "counts" of alleged IRS misconduct, reciting a litany of Internal Revenue Code provisions and regulations, and attaching a 50-paragraph statement of facts in support thereof recounting his lengthy correspondence with the IRS for the tax years at issue. His allegations against the IRS fall into the following categories: (1) failure to produce documents demonstrating that he is liable for taxes; (2) failure to provide notice of a requirement to keep records, make statements, or file tax returns; (3) failure to prepare or execute substitute tax returns on his behalf, and disclose such returns to him; (4) failure to lawfully make or record proper assessments of taxes against him; (5) failure to provide notices, hearings and supervisory approval concerning any tax deficiencies; (6) improper use of his social security number; (7) unlawful attempts to collect taxes through improper notices of liens and levies issued without proper procedures; and (8) conducting a campaign of harassment against him. Id. Plaintiff seeks an award of damages for violations of the Internal Revenue Code pursuant to 26 U.S.C. § 7433. 1 Id. at 25-26. He also seeks an award damages for violation of his constitutional right to due process, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
STANDARD OF REVIEW
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S. Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S. Ct. at 1964-65; see also Papasan, 478 U.S. at 286. Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S. Ct. at 1965 (citations omitted).
I. Damages Actions under 26 U.S.C. § 7433Defendant moves to dismiss plaintiff's damages claim under 26 U.S.C. § 7433 on the ground that plaintiff has failed to exhaust his administrative remedies, characterizing this deficiency as a matter of subject matter jurisdiction. In making this request, defendant urges the Court to reconsider its prior decisions holding that the statutory exhaustion requirement is not jurisdictional, but instead is an affirmative defense. See Def.'s Mem. at 3-16. This Court has twice conducted a full analysis of the argument raised by defendant --first, in Turner v. United States, 429 F. Supp. 2d 149 (D.D.C. 2006), and then in Ross v. United States, 460 F. Supp. 2d 139 (D.D.C. 2006). In both cases, the Court held that, under Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006), and Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004), the exhaustion requirement in section 7433 is nonjurisdictional because Congress did not rank the limitation as jurisdictional in "clear, unequivocal terms." Defendant contends that reconsideration is warranted because, after the issuance of those decisions, the Supreme Court limited Arbaugh and that, in any event, this Court has not fully considered whether the terms of section 7433(d) satisfy the "clear, unequivocal" standard.The Court first considers defendant's contention that the Supreme Court has limited Arbaugh in John R. Sand & Gravel Co. v. United States, ___U.S. ___, 128 S. Ct. 750 (2008). Nothing in that case, however, suggests that Arbaugh has been limited. In John R. Sand & Gravel, the Supreme Court held that the "special statute of limitations" governing the Court of Federal Claims, 28 U.S.C. § 2501, was a jurisdictional limitation that required sua sponte consideration. 128 S. Ct at 752. The Court recognized that the law typically treats a limitations defense as an affirmative defense, but held that this "special" statute of limitations was jurisdictional based on longstanding Supreme Court precedent holding this particular limitation period jurisdictional and "basic principles of stare decisis." Id. at 753-56. Defendant contends, however, that the Supreme Court approved of consideration of "broad system-related goals," such as the need to limit a waiver of sovereign immunity, to determine whether a limitation on a cause of action is jurisdictional, and thus necessarily retreated from Arbaugh's focus on the text of the statute. See Def.'s Mem. at 5-6 (citing 128 S. Ct. at 753).Defendant's characterization of the decision in John R. Sand & Gravel is incorrect. The isolated reference highlighted by defendant is not a limitation on Arbaugh, but instead only a basic recognition that some statutes of limitations considered in past Supreme Court decisions have been held to be jurisdictional, which the Court contrasted with an affirmative defense. 128 S. Ct. at 753. Indeed, the Supreme Court cited Arbaugh with approval, belying any intent to limit or overrule it. Id. Finally, the decision emphasized that the holding as to the Court of Federal Claims statute of limitations rested squarely on a long line of "well-settled precedent" finding that particular statute of limitations to be jurisdictional, not on any disagreement with Arbaugh. Id. at 754-57. Hence, this Court sees no basis for concluding that John R. Sand & Gravel has limited Arbaugh's holding that "when Congress does not rank a statutory limitation ... as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Arbaugh, 546 U.S. at 516.Defendant argues next that, even under the standard articulated in Arbaugh and the "clear, unequivocal" textual standard of Avocados Plus, the language of section 7433(d) plainly provides that exhaustion is jurisdictional. The Court closely examined that language in Turner and Ross, and now, considering once again the statutory language, the case law, and the legislative history, adheres to its original holding that section 7433(d) does not set forth a "clear, unequivocal" limitation on subject matter jurisdiction. The language at issue states: "A judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433(d)(1). As explained in Ross, "the exhaustion requirement is set forth in a separate subsection of section 7433 under the heading 'Limitations,' and not in subsection (a) describing district court jurisdiction," and also is grouped with "two other limitations --a restriction on damages based on failure to mitigate and a statute of limitations --that are generally regarded as nonjurisdictional." Ross, 460 F. Supp. 2d at 145-46.Defendant argues that Ross is wrong because the phrase "the court determines" exhaustion in section 7433(d) means that the exhaustion requirement affects the power of the court --its jurisdiction --to grant relief. But Congress used the same phrase --"the court determines" --when, in 1996, it temporarily amended section 7433(d) to make exhaustion only a discretionary factor in reducing a damages award, before then reinstating exhaustion as a prerequisite to recovery of any damages in 1998. Compare Pub. L. 104-168, § 801, 110 Stat. 1452, 1465 (1996) ("The amount of damages ... may be reduced if the court determines that the plaintiff has not exhausted the administrative remedies ... .") with Pub. L. 105-206, § 3102, 112 Stat. 685, 730 (1998) ("A judgment for damages shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies ... ."). This earlier nonjurisdictional usage of the phrase "the court determines," in combination with the placement of the exhaustion provision alongside other nonjurisdictional limitations, further supports the Court's determination that the section 7433(d) exhaustion provision is nonjurisdictional.Moreover, exhaustion requirements have been recognized as "typically" nonjurisdictional --a characterization underscored by the Supreme Court most recently in Jones v. Bock, 549 U.S. 199, 212 (2007). See also Avocados Plus, 370 F.3d at 1248. Indeed, this Circuit, in an unpublished order, recently indicated that the exhaustion requirement in section 7433(d) is nonjurisdictional. See Scott v. United States, No. 07-5310, 2008 WL 1885481 (D.C. Cir. Apr. 25, 2008) (directing district court to reconsider sua sponte dismissal of complaint seeking damages under section 7433 because, under Jones v. Bock, "failure to exhaust is an affirmative defense"). Thus, the Court continues to regard exhaustion as a mandatory, but nonjurisdictional, requirement for pursuing a claim for damages under section 7433.The nonjurisdictional status of the exhaustion requirement, however, does not save plaintiff's claim. Exhaustion remains a requirement of maintaining a suit for damages under section 7433, and Jones v. Bock recognizes that dismissal for failure to state a claim based on nonexhaustion may be appropriate if the complaint somehow indicates that the defense is applicable. Jones v. Bock, 549 U.S. at 215 ("[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract"). Hence, this Circuit has observed that, "even when failure to exhaust is treated as an affirmative defense, it may be invoked in a Rule 12(b)(6) motion if the complaint somehow reveals the exhaustion defense on its face." See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C. Cir. 2007); see also Lykens v. United States, 523 F. Supp.2d 26, 28 (D.D.C. 2007) (holding that failure to comply with exhaustion requirement under 7433(d) may be raised in Rule 12(b)(6) motion); Romashko v. United States, No. 05-2209, 2007 WL 2908754, at * 7 (D.D.C. Sept. 30, 2007) (same). The Court therefore will consider defendant's request, in the alternative, to dismiss plaintiff's section 7433 claim under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.Plaintiff's response to defendant's motion to dismiss contains not even a bare contention that he has satisfied the exhaustion requirement set forth at 26 C.F.R. § 301.7433-1. This deficiency is suggested by the complaint, which catalogs a lengthy history of correspondence with various persons at the IRS and implies no attempt was made to submit an administrative complaint under 26 C.F.R. § 301.7433-1. See Am. Compl. Statement of Facts at ¶¶ 1-49. Plaintiff instead argues that the regulation is invalid and relies on his history of correspondence with the IRS to argue that the regulation should not be applied in this case. Pl.'s Response to Mot. to Dismiss at 8-20. Therefore, unless plaintiff can prevail on his argument that 26 C.F.R. § 301.7433-1 is invalid, his amended complaint must be dismissed for failure to exhaust administrative remedies.Turning, then, to the validity of the exhaustion regulation, the Court considers plaintiff's arguments that the IRS lacked authority to promulgate the regulation and that the regulation is nonbinding. See Pl.'s Response to Mot. to Dismiss at 8-20. This Court comprehensively reviewed the validity of that regulation in Evans v. United States, 433 F. Supp. 2d 17, 21-23 (D.D.C. 2006), and held that the IRS has authority under 26 U.S.C. § 7805(a), and § 7433 itself, to promulgate the exhaustion regulation. Plaintiff has offered no reason to revisit that holding, and it applies with equal force here.Plaintiff's contention that the regulation is a "nonbinding" interpretive regulation is utterly without merit. The plain language of the statutory exhaustion requirement mandates that "the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433(d)(1) (emphasis added). The requirement to exhaust "the administrative remedies within the Internal Revenue Service" originates from the statute and is mandatory on its face. Furthermore, the regulation at issue was originally promulgated in 1992 and had been in place for six years when Congress reenacted the exhaustion requirement in 1998. See Evans, 433 F. Supp. 2d at 22 (discussing history of the administrative exhaustion requirement). "Congress is presumed to be aware of established practices and authoritative interpretations of the coordinate branches." United States v. Wilson, 290 F.3d 347, 357 (D.C. Cir. 2002). Hence, the requirement in section 7433(d)(1) to exhaust "the administrative remedies available to such plaintiff within the Internal Revenue Service" plainly refers to 26 C.F.R. § 301.7433-1. In the face of this history, it is absurd to call that regulation "nonbinding." Because exhaustion of administrative remedies in compliance with 26 C.F.R. § 301.7433-1 is mandatory, and plaintiff has failed to exhaust those remedies, his amended complaint will be dismissed for failure to state a claim upon which relief can be granted. 2 II. Damages under BivensPlaintiff characterizes his complaint as also seeking damages under Bivens for constitutional due process violations by the IRS. But a Bivens remedy is not available where Congress already has created a "comprehensive remedial scheme." See Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008). Chapter 76, Subchapter B, of the Internal Revenue Code comprehensively addresses the circumstances under which taxpayers may pursue civil actions against the United States based on alleged IRS abuses. See 26 U.S.C. §§ 7421-36. As discussed above, § 7433 provides an action for damages where an IRS officer or employee, "in connection with any collection of Federal tax with respect to a taxpayer," recklessly or intentionally, or by reason of negligence, disregards any provision of the Internal Revenue Code or its regulations. Other remedies include a civil action for a refund of taxes under certain defined circumstances ( § 7422), a damages action for unlawful inspection or disclosure of a tax return or return information (( § 7431), and a damages action where the IRS unlawfully fails to release a lien ( § 7432). Whether these remedies are, in plaintiff's view, adequate, is of no moment, because "it is the comprehensiveness of the statutory scheme involved, not the adequacy of specific remedies extended thereunder, that counsels judicial abstention." Wilson, 535 F.3d at 706. Because Congress has comprehensively addressed the availability of damages where IRS employees are alleged to have violated the Internal Revenue Code, plaintiff may not bring a damages claim under Bivens for such violations under the mantle of due process.
For the foregoing reason, the Court will grant defendant's motion to dismiss plaintiff's amended complaint. A separate order has been issued on this date.1 Plaintiff asks the Court to conduct judicial review of the IRS actions under the Administrative Procedure Act, the Federal Records Act, and the National Archives Act, but emphasizes that his claim for damages is not based on those statutes. See Am. Compl. at 3-4. Of course, damages are not available under those statutes. See Ross v. United States, 460 F. Supp. 2d 139, 148-50 (D.D.C. 2006)2 It also bears noting that much of plaintiff's amended complaint is based on the alleged failure of the IRS to make a lawful assessment of taxes. However, "section 7433 does not provide a cause of action for wrongful tax assessment, the absence of a tax assessment, or other actions not related to the collection of income tax." See Stewart v. United States, 578 F. Supp. 2d 30, 34 (D.D.C. 2008); Jaeger v. United States, 524 F. Supp. 2d 60, 63-64 (D.D.C. 2007); Bryant v. United States, 527 F. Supp. 2d 137, 140-41 (D.D.C. 2007). Therefore, the portions of the amended complaint challenging wrongful or missing assessments and other actions not related to "collection" of taxes --Counts One through Eighteen --are dismissed on this ground as well.
of remedies --Suits filed prior to July 31, 1996, and after July 22, 1998. --Civil Damages for Certain Unauthorized Collection Actions: Exhaustion of remedies --Suits filed prior to July 31, 1996, and after July 22, 1998Under the annotations below, which cover proceedings commenced before July 31, 1996, and after July 22, 1998, damages for unauthorized collection actions generally were not awarded where the taxpayer did not exhaust the administrative remedies available within the IRS prior to bringing suit. For proceedings commenced after July 30, 1996, and before July 23, 1998, exhaustion of administrative remedies was not a prerequisite to qualifying for relief but the court may reduce the amount of damages awarded if the taxpayer did not exhaust such administrative remedies (Code Sec. 7433(d)(1)). --CCH.The IRS properly followed established procedures in its efforts to reduce a mistakenly omitted assessment of accrued interest to final judgment. However, even if the taxpayer had been correct in its belief that the IRS had pursued its tax claims unlawfully, the taxpayer's present claim for civil damages in the district court was procedurally improper. The taxpayer was required to first exhaust all of its administrative remedies within the IRS.Toyota of Visalia, Inc., DC Calif., 91-2 USTC ¶50,327. Aff'd, CA-9 (unpublished opinion 2/16/93).A district court properly dismissed an individual's suit for damages and injunctive relief for failure to state a proper claim under Code Sec. 7433, even though it may have erred in finding that he was required to exhaust his administrative remedies prior to bringing suit. His allegation that an IRS employee falsified figures for a jeopardy assessment did not state a viable claim because it concerned the determination of taxes rather than the collection of taxes. The remainder of his complaint failed to allege that the employee's actions were recklessly or intentionally designed to violate the tax code or regulations.M. Yizar, DC Ga., 91-2 USTC ¶50,439. Aff'd, per curiam, CA-11 (unpublished opinion), 97-2 USTC ¶50,564.Individuals who failed to request an abatement of an allegedly wrongful tax assessment or who did not pay the tax assessment and request a refund did not exhaust their administrative remedies. Thus, their claim for damages for unauthorized collection activities under Code Sec. 7433 was denied.J.R. Deacon, DC Calif., 90-1 USTC ¶50,221.Individuals were not allowed to amend their complaint to add causes of action for a tax refund and damages for unauthorized tax collection or to add another party. Proceeds from the IRS's forced sale of their property did not constitute voluntary payments of tax, and they did not file a proper claim for refund with the IRS.C. Parker, DC Calif., 96-2 USTC ¶50,675. Aff'd on another issue, CA-9 (unpublished opinion), 98-1 USTC ¶50,239.The government's motion to dismiss a taxpayer's claims for damages based on lack of jurisdiction was denied. The IRS filed several notices of levy on bank accounts and property belonging to the taxpayer as nominee of a corporation that owed taxes. The government's argument that administrative remedies were not exhausted by the taxpayer prior to suit was rejected. There was no administrative remedy for the taxpayer to pursue pertaining to the awarding of costs to the "prevailing party" in tax litigation since the appropriate regulation did not apply to the time when the taxpayer filed his claim.W.E. Rutledge, DC Ala., 92-2 USTC ¶50,406.A computer software company's claims against the IRS for damages were improperly dismissed by the district court for lack of jurisdiction. The government could not argue that the company failed to exhaust its administrative remedies by not having the lien at issue properly released prior to filing suit. The action for damages was based on the IRS's alleged reckless or improper filing of the lien and not on the IRS's delay in releasing the lien.Information Resources, Inc., CA-5, 92-1 USTC ¶50,053, 950 F2d 1122.An individual's suit for damages and injunctive relief was dismissed for lack of jurisdiction. The individual's failure to exhaust his administrative remedies precluded jurisdiction in the suit for damages. His correspondence contesting IRS collection activities did not meet the administrative appeal requirements because it was sent to the wrong IRS district office and lacked information required under the statute. The Anti-Injunction Act barred injunctive relief resulting from the individual's failure to qualify for the exceptions to the Act.W.F. Johnson, DC Minn., 93-1 USTC ¶50,135.An individual could not bring an action for damages against the IRS alleging that the agency recklessly and intentionally levied and seized property. The district court lacked jurisdiction over the action because the taxpayer failed to exhaust his administrative remedies.W.B. McGarvin, DC Mo., 93-1 USTC ¶50,325. Aff'd, CA-8 (unpublished opinion 12/29/93).An individual had not exhausted his administrative remedies because the IRS had not ruled on his administrative claim before he filed suit for damages for the IRS's alleged improper collection activities. However, in the interest of judicial efficiency, the federal district court considered the merits of the claim and granted summary judgment in favor of the government because the individual had only made an unsupported allegation while the government presented evidence to show that the IRS had acted properly in collecting taxes.G. Weingardt, DC Nev., 94-1 USTC ¶50,197.Two individuals' action for damages for a wrongful lien was dismissed for lack of jurisdiction because they failed to allege that any administrative claim for damages or request for release of lien was ever filed with the IRS.R. Forman III, DC Nev., 93-2 USTC ¶50,643.Similarly. A district court lacked jurisdiction over a suit seeking civil damages for unauthorized collection actions because the taxpayer did not allege that he filed an administrative claim for damages with the IRS.J.R. Penta, DC Ariz., 96-2 USTC ¶50,567.G.A. Jenkins, DC Calif., 97-1 USTC ¶50,454. Aff'd, CA-9 (unpublished opinion), 98-1 USTC ¶50,464.An individual who filed a damage claim for unauthorized collection actions of an IRS agent before the effective date of Code Sec. 7433 was not required to comply with the statutory requirement that administrative remedies be exhausted prior to bringing suit. Thus, the government's motion for summary judgment was denied.W. Berger, DC Fla., 93-2 USTC ¶50,672.A claim for damages with respect to unauthorized collection activities was dismissed for failure to exhaust administrative remedies.J.L. Ball, DC Ill., 94-1 USTC ¶50,149. Aff'd on other issues, CA-7 (unpublished opinion), 95-1 USTC ¶50,217.J.R. Leonard, Sr., DC Colo., 97-2 USTC ¶50,501.Similarly. Code Sec. 7433 did not provide a basis for an individual's third-party complaint alleging that IRS employees engaged in wrongful conduct in connection with tax collection activities because he failed to show that he exhausted his administrative remedies by filing a written claim before bringing suit.N. Moffett, CA-9 (unpublished opinion), 97-1 USTC ¶50,108, aff'g an unreported District Court decision.Similarly.R.J. Steinman, DC Ariz., 97-1 USTC ¶50,396.Similarly. A married couple did not state a proper claim for damages under Code Sec. 7433 because they did not exhaust their administrative remedies before filing suit. The only item that could have been construed as an administrative claim for relief was a letter that was sent to the IRS after the couple filed their complaint.A.M. Ostheimer, DC Mont., 95-2 USTC ¶50,554.Similarly. An individual's assertion that no administrative remedies were available did not excuse him from the requirement that administrative remedies be exhausted where he made no attempt to pursue his claim. In addition, since his argument that he was not subject to U.S. tax laws was patently frivolous and since he did not raise a good faith argument that the district court erred in dismissing his case, he was ordered to pay sanctions for bringing a frivolous appeal.C.W. Larue, DC Ill., 95-2 USTC ¶50,568. Aff'd, CA-7 (unpublished opinion), 96-2 USTC ¶50,519.Documents attached to the complaint of individuals engaged in a frivolous tax protest made it appear that they initially complied with the requirements necessary to secure jurisdiction over an action for damages for unauthorized collections. However, their motion for a default judgment against IRS employees was denied for improper service, and, accordingly, their motion for a preliminary injunction was denied.C.W. LaRue, DC Ill., 97-1 USTC ¶50,219. Aff'd, CA-7 (unpublished opinion), 97-2 USTC ¶50,703.An individual who failed to seek administrative relief prior to filing her action for damages for the IRS's wrongful assessment was not procedurally barred from proceeding with her claim. She had filed her action prior to adoption of Reg. §1.7433-1(e), which established the administrative remedies that taxpayers were required to exhaust before bringing suit for damages arising from collection activities. However, although the IRS had improperly assessed the individual for the tax liabilities of her husband's corporation, she was not entitled to damages under Code Sec. 7433 because the reach of the statute was limited to improper conduct in the collection of taxes, not in the determination of taxes.B.A. Shaw, CA-5, 94-1 USTC ¶50,254. Cert. denied, 12/5/95.The district court properly granted summary judgment to the IRS on an individual's claim for damages from unauthorized collection actions because the individual failed to exhaust all available administrative remedies. Although he sent a letter to an IRS agent explaining that he had exhausted his administrative remedies, he never actually filed a claim for relief in writing with the district director. The taxpayer's argument that he was excused from the exhaustion requirement because exhaustion would be futile was without merit since the IRS had not rendered a decision on other available administrative relief (damages).D.P. Venen, CA-3, 94-2 USTC ¶50,536, 38 F3d 100.In order to determine whether a federal district court had jurisdiction to consider a civil claim for refund, damages and costs arising from the IRS's alleged improper collection actions, a taxpayer was required to submit memoranda stating the factual and legal grounds for his contentions that he had filed timely claims for refund and for damages and that he had exhausted his administrative remedies prior to commencing his suit.R.E. Arnett, DC Kan., 94-1 USTC ¶50,223.An individual who successfully sued the IRS for wrongful levy against his property was denied summary judgment on his claim for damages for the IRS's use of unauthorized tax collection activities because he had failed to prove that he exhausted all administrative remedies.P. Urwyler, DC Calif., 95-1 USTC ¶50,238.An individual could not recover damages for the IRS's alleged unauthorized tax collection activities because he failed to exhaust his administrative remedies. The individual did not show that he satisfied the administrative claim requirements by sending a written claim for relief to the IRS district director that was signed and that set forth identifying information, the grounds for the claim, a description of the injuries sustained, and the amount of the claim.P. Urwyler, DC Calif., 96-1 USTC ¶50,052.Individuals precluded from claiming damages for alleged violations USTC ¶50,374.M. Santoro, DC Tex., 2008-1 USTC ¶50,404.J.C. McKean, DC D.C., 2008-2 USTC ¶50,420.R. Porter, DC Iowa, 2008-2 USTC ¶50,479.R. Welzel, DC D.C., 2008-2 USTC ¶50,541.An individual could not bring a claim for illegal collection activity after the IRS levied on his bank account and wages because he failed to pursue available administrative remedies. The individual did not pay his taxes, file a claim for refund with the IRS, or file an administrative claim for damages before filing suit. A letter in which the taxpayer requested the IRS to release its lien was not a proper substitute for an administrative claim for illegal collection activity damages because it did not contain a detailed description of the alleged injuries nor assign a dollar amount to the claim. Further, the taxpayer presented no evidence that the liens were improper or that the IRS's levy procedure was unlawful.T.W. Pursell, DC Calif., 95-1 USTC ¶50,184.A pro se individual's claim for damages for emotional and physical suffering allegedly caused by the IRS and arising from the IRS's alleged wrongful failure to release liens on his property were dismissed because he failed to exhaust administrative remedies. In order to perfect these damage claims, the taxpayer had to file detailed written claims with the IRS. Instead, he raised them orally before an IRS problem resolution officer.T.M Knight, DC Ga., 2000-1 USTC ¶50,408.The court declined to dismiss an individual's suit alleging a violation of Code Sec. 7433, which deals with damages in connection with unauthorized collection actions. Although the government argued that the suit should be barred because the taxpayer failed to exhaust his administrative remedies, the taxpayer contended that he had requested a collection due process hearing. Thus, the parties were given time in which to file evidence showing that such a hearing had been or would be granted.P. Devore, DC Nev., 2000-1 USTC ¶50,480.It was unclear whether married taxpayers failed to exhaust their administrative remedies prior to initiating a damages claim against the IRS and a revenue officer. Since jurisdiction was lacking due to their failure to state a valid claim for unauthorized collection, however, the appellate court declined to remand the case for consideration of the exhaustion issue.L.D. Gass, CA-10 (unpublished opinion), 2000-1 USTC ¶50,521.An individual's suit for damages pursuant to the Taxpayer Bill of Rights (TBOR) for alleged misconduct by the IRS in tax collection was dismissed because he failed to exhaust administrative remedies. Moreover, since exhaustion of administrative remedies is statutorily required by the TBOR, exceptions that were unsupported by the statutory text could not be carved out. Although the statute is silent on the exhaustion procedures to be administered, Congress implicitly authorized the IRS to prescribe the details of administrative remedies to be exhausted. The IRS's interpretation of the exhaustion requirement and the simple procedure it established were reasonable. The six-month period it required to determine the individual's claim was also reasonable. Reg. §301.7433-1(e) provides a straightforward administrative process for pursuing administrative remedies and is valid.P.B. Evans, DC D.C., 2006-2 USTC ¶50,372.An individual was not entitled to damages for alleged violations of the Internal Revenue Code by IRS agents in the assessment and collection of his taxes since he did not exhaust his administrative remedies. His contention that the exhaustion requirement did not apply where an adverse decision was certain, especially where the IRS had articulated a clear position on an issue and had demonstrated an unwillingness to reconsider, was rejected. Neither the Code nor the implementing regulation provides an adverse decision exception to the exhaustion requirement of administrative remedies. Since exhaustion was statutorily mandated, an exception that was unsupported by the statutory text would not be carved out.S. Cain, DC D.C., 2006-2 USTC ¶50,440.I. Zook, DC D.C., 2006-2 USTC ¶50,441. An individual's claim for damages pursuant to the Taxpayer Bill of Rights (TBOR) for alleged IRS misconduct regarding collection of his taxes was dismissed because he failed to exhaust administrative remedies before filing suit in federal district court. His conclusory, general statements that he had exhausted administrative remedies lacked any description of how he had satisfied the precise requirements of the statute and the regulations and established that they were not satisfied. Moreover, because he did not reply to the court's order to show how he satisfied the exhaustion requirements, his claim was also dismissed for failure to prosecute.R.D. Stewart, DC D.C., 2006-2 USTC ¶50,562.A federal district court reinstated a married couple's previously dismissed Code Sec. 7433 damages claim. The couple's failure to plead their exhaustion of administrative remedies was not a basis for dismissal but, rather, was an affirmative defense to be pled by the government.R. Welzel, DC D.C., 2007-2 USTC ¶50,844.An individual's damages claim against the IRS for alleged misconduct and violations of the Internal Revenue Code was not dismissed for lack of subject matter jurisdiction due to failure to exhaust his administrative remedies before filing suit. Although the exhaustion of administrative remedies is a requirement to maintain a suit for damages, it is not a jurisdictional requirement. Moreover, the individual specifically alleged that he had filed an administrative claim with the IRS.K.D. Guthery, DC D.C., 2007-2 USTC ¶50,760.An individual's claim for damages was moot. The government had abated penalties and issued a refund of amounts collected.S. Underwood, CA-10, 2007-2 USTC ¶50,817.A federal district court had subject matter jurisdiction over an individual's claim for damages and actual costs under Code Sec. 7433. The individual had, according to a letter received from the IRS, exhausted all available administrative remedies before filing suit, and the IRS did not identify what unexhausted administrative remedies were available to the individual.V. Olender, DC Fla., 2007-2USTC ¶50,707.An individual's action challenging an IRS levy on her pension funds that continued after satisfaction of her tax deficiency was not dismissed for failure to state a claim. The individual had exhausted her administrative remedies by filing two administrative claims within the two-year statute of limitations, and six months had passed since their filing.M. Wallace, DC D.C., 2008-1 USTC ¶50,369.An individual's damages claims against IRS employees for alleged violation of his constitutional rights were properly dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. He could not bring his claim under the Federal Tort Claims Act (FTCA) because the statute does not apply to claims arising from assessment or collection of tax. J.A.A. Al-Sharif, CA-11, 2008-2 USTC ¶50,603.An individual's damages claims against IRS employees for alleged violation of his constitutional rights were properly dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. He could not bring his claim under the Federal Tort Claims Act (FTCA) because the statute does not apply to claims arising from assessment or collection of tax. J.A.A. Al-Sharif, CA-11, 2008-2 USTC ¶50,603.A federal district court lacked subject matter jurisdiction over a married couple's claim for damages for alleged misconduct by an IRS agent because they did not exhaust their administrative remedies prior to filing suit.L. Bolden, DC Ill., 2008-2 USTC ¶50,625.Jurisdiction was lacking over an individual's claim to recover attorneys' fees that she incurred when litigating the IRS's garnishment of her wages following the discharge of her debts in bankruptcy. The taxpayer had failed to properly exhaust her administrative remedies prior to filing suit, and an administrative claim that she had filed had been properly rejected as untimely. Her complaint filed in the bankruptcy court also had not provided sufficient notice of her claims to the IRS. Moreover, the Court of Appeals had already ruled that she had not exhausted her administrative remedies. She was not permitted to circumvent the Appellate Court's holding by making new arguments on remand that were fully available to her before the appellate court. B.A. Kuhl, DC N.Y., 2008-2 USTC ¶50,649.
Bivens actions. --Constitutional Provisions: Constitutional Arguments: Miscellaneous Constitutional Attacks: Bivens actionsNo Bivens cause of action is available if there is an adequate opportunity to obtain relief through the statutory scheme.Hudson Valley Black Press, CA-2, 2005-1 USTC ¶50,387, 409 F3d 106.F.H. Behrens, DC Calif., 97-2 USTC ¶50,768.To the extent that taxpayer claimed injury to his reputation based on IRS agents' alleged questioning regarding weapons, he failed to state a Bivens claim, since even abusive verbal attacks do not violate the Constitution. Moreover, even if IRS agents improperly carried firearms during the search of his business premises, a Bivens action did not automatically arise from a failure to follow IRS procedures.D.J. Leveto, CA-3, 2001-2 USTC ¶50,536.An individual failed to state a valid Bivens claim against IRS agents for alleged civil rights or constitutional violations in connection with the seizure of his car. The taxpayer alleged that the agents acted in bad faith and in reckless disregard of his constitutional rights. However, Code Sec. 7432 and Code Sec. 7433 provided the exclusive remedies for damages resulting from such abuses. The court declined to create a new Bivens remedy in light of the adequate remedies available to the taxpayer.R.G. Rogers, CA-1, 2001-2 USTC ¶50,620. Aff'g, DC Mass., 2000-1 USTC ¶50,239 and 2000-2 USTC ¶50,741, 108 FSupp2d 65.A complaint for damages brought by a barter association against multiple revenue agents for alleged constitutional violations of its First and Fifth Amendment Rights was improperly dismissed because it sufficiently alleged that repeated seizures of association documents, membership lists and property, conducted by specifically named agents, were illegal. The underlying warrants violated the Fourth Amendment's particularity requirement, and the seized documents came within the clear parameters of First Amendment Rights of speech and association. However, the association could not argue that its constitutional rights were violated as a result of wrongful jeopardy assessments because no Bivens -type cause of action exists under the First and Fourth Amendments for wrongful jeopardy assessments.National Commodity and Barter Assn., CA-10, 2000-2 USTC ¶50,558.An individual's suit for money damages against the IRS, Treasury Department and individual IRS agents arising out of his arrest and subsequent acquittal at trial for using threats as a means of interfering with the duties of an IRS agent failed to state a Bivens -type claim or a claim for relief under the Federal Tort Claims Act. The taxpayer failed to establish that the agents fabricated evidence, and they were not required to include exculpatory evidence in their probable cause affidavit. Further, they were absolutely immune from liability for their alleged perjury at trial and, given their knowledge of the taxpayer's criminal history, they had qualified immunity from his claims regarding unnecessary force.D.C. Bickley, CA-4 (unpublished opinion), 2000-2 USTC ¶50,687. Aff'g an unreported District Court decision.Taxpayers' lawsuit against an IRS employee alleging that he violated their constitutional rights was properly dismissed for failure to state a claim. Code Sec. 7433, provides the exclusive remedy for unauthorized collection actions.An accountant who claimed that his Fourth Amendment rights were violated when the government attempted to entrap him in tax evasion, audited two of his most significant clients, and levied against his wife's property could not pursue a Bivens -type action against an IRS agent and a U.S. attorney in their individual capacities. The government may conduct a "sting" operation before it suspects an individual of illegal activity, and a wrongful levy does not violate due process.J. Hagan, CA-5 (unpublished opinion), 2000-1 USTC ¶50,288.A tax protestor's Bivens claims that arose in connection with his trial and conviction for violating a court order regarding his activities as a tax accountant were properly dismissed. The state (Illinois) statute of limitations barred his claims alleging improper search and seizure. His claims that the IRS did not have the authority to investigate his violations of the court order, that his sentence for contempt of court was improper, and that supervisory conditions of his release violated his privacy rights were frivolous.M. Rotzinger, CA-7, 99-1 USTC ¶50,217. Aff'g an unreported District Court decision.Sovereign immunity barred a pro se Bivens claim, tort claim and suit for refund that were filed by a taxpayer who was an innocent spouse.C.K. Climer, CA-5 (unpublished opinion), 99-1 USTC ¶50,181. Aff'g an unreported District Court decision.The trial court lacked jurisdiction over an individual's Bivens claim to recover damages resulting from IRS collection activities. The bank that received a notice to levy the individual's checking account and its officers were not involved with respect to the government's collection activities; thus the complaint was properly dismissed against them.W.M. Hezel, CA-6 (unpublished opinion), 98-2 USTC ¶50,778.Officers and employees of a private bank who honored an IRS tax levy against a depositor's checking account were not liable for damages for their purported violation of the depositor's rights since their compliance with the levy was mandated by Code Sec. 6332(e). The taxpayer's Bivens -style claim for conduct under color of federal law was rejected. The Fifth Amendment protects against actions by the federal government, and the bank employees were private individuals whose actions did not fall within the scope of the Amendment.M.D. Smith, CA-10 (unpublished opinion), 98-1 USTC ¶50,107.A federal district court lacked subject matter jurisdiction over two taxpayers' petition to quash an IRS summons served on the custodian of records of a church for records related to the taxpayers' possible criminal tax violations because the government had not waived its sovereign immunity with respect to the taxpayers' petition. The taxpayers could not characterize their petition to quash as a Bivens action because they did not name the IRS agent, in his individual capacity, as a defendant in their action.D.S. Taylor, CA-5 (unpublished opinion), 2008-2 USTC ¶50,557, aff'g, per curiam, an unreported DC Texas decision.A radio jingle producer did not assert a justiciable Bivens claim regarding purported constitutional violations by individual government officials when the IRS refused to issue a private letter ruling stating that free radio airplay for state governmental agencies qualified for charitable-contribution tax status. The IRS's denial of his request did not deprive him of his constitutional rights, and the Bivens action did not extend to individual IRS agents' conduct in relation to private letter rulings.P.C. Tobin, DC Maine, 2007-2 USTC ¶50,832.A Bivens claim against the IRS for constitutional violations was rejected because such a claim is unavailable against the U.S. or its agencies.R.W. Jarvi, DC Mich., 2005-1 USTC ¶50,185.A federal district court in Illinois dismissed a taxpayer's Bivens-type due process claim. Because the taxpayer submitted an unsigned return, he was treated like a non-filer and not given the benefit of joint filer rates or itemized deductions. This resulted in additional tax and, in turn, the disputed notice of deficiency. The Seventh Circuit Court of Appeals, however, in Cameron, 85-2 USTC ¶9661, specifically disallowed any Bivens-type remedy for alleged constitutional violations associated with tax assessment and collection activities.D. Godbout, DC Ill., 2005-1 USTC ¶50,352.An individual's intelligible claims under the Internal Revenue Code were dismissed. The district court found that the claims were too vague to be subject to coherent interpretation. The taxpayer's complaint could not be construed as a Bivens action against an individual IRS agent for discrimination because it rested on an inarguable legal conclusion. The collection of taxes did not give rise to a constitutional violation.A. Garnett, DC Del., 2005-2 USTC ¶50,485.No Bivens cause of action is available if there is an adequate opportunity to obtain relief through the statutory scheme.R.A. Corpuz, DC Hawaii, 2005-2 USTC ¶50,520.A claim that IRS agents had fraudulently filed a Notice of Federal Tax Lien was dismissed because the U.S. district court lacked subject matter jurisdiction. The Bivens exception to the rule barring suits against federal employee for actions taken in their official capacity did not apply because Code Sec. 7433 is the exclusive remedy for alleged IRS conduct associated with the collection of taxes.A. Aromin, DC Va., 2005-2 USTC ¶50,560.The district court summarily dismissed a married couple's suit against an IRS agent for damages from unauthorized collection activities. The taxpayers did not allege sufficient due process violations to establish a Bivens-type action.J.D. Rupe, DC Tex., 2004-2 USTC ¶50,299.A taxpayer's suit alleging constitutional violations by various governmental officials with respect to their actions in prosecuting him in connection with his nonpayment of excise taxes was rejected. The suit sought an award of damages against IRS employees and two Justice Department attorneys. Because the IRS employees were acting as witnesses, they were immune from suit. Further, because the government attorneys were performing acts "intimately associated with the judicial phase" of litigation, they were also immune from suit.A.T. McQueen, DC Texas, 2003-1 USTC ¶50,451.Jurisdiction was lacking over an individual's constitutional claims relating to the IRS's alleged denial of tax-exempt status to a nonprofit corporation of which the individual was the sole officer. The U.S. had not waived its sovereign immunity for Bivens actions.D. Lock, DC Utah, 2003-1 USTC ¶50,543.An individual's suit alleging that the government, the IRS, and certain IRS officers and officials had tortiously and unconstitutionally refused to accept his compromise offer as a complete discharge of his outstanding tax liability was dismissed. To the extent that his equal protection argument was construed as a Bivens-type action against tax officials, the taxpayer should have sought a remedy in internal IRS proceedings.W.J. Higgins, Jr., DC N.Y., 2003-2 USTC ¶50,563.Taxpayer failed to state a Bivens claim for damages against the agents for actions taken in the course of making tax assessments.T.P. Bell, DC Pa., 2002-2 USTC ¶50,755.Two attorneys' suit, characterized suit as a Bivens claim against IRS agents in their individual capacities, failed. The evidence did not support their claim that a warrant was executed without probable cause.Search Warrant Executed Feb. 28, 2001, Does I&II, DC Calif., 2002-2 USTC ¶50,641.The government was not entitled to summary judgment with respect to an individual's Fourth Amendment Bivens claim that a former IRS attorney unlawfully seized financial documents in a warrantless search of her home. Although the taxpayer proffered minimal evidence, if a jury believed that the IRS agent did not schedule a meeting with the taxpayer's accountant at the taxpayer's home on the day in question, the weight of circumstantial evidence could support a finding that the IRS agent illegally entered the taxpayer's home. Consequently, any qualified immunity claim by the government could be overcome.M.A. Tobin, DC Ky., 2002-1 USTC ¶50,260.Taxpayer was not permitted to amend his unauthorized collection complaint so that he could bring a Bivens suit against individual IRS employees. Bivens claims seeking monetary damages for actions arising out of the collection of taxes are not valid.R.G. Sachs, DC Mich., 2001-2 USTC ¶50,640.The Ninth Circuit has never recognized a constitutional violation for the collection of taxes because remedies provided for in the Internal Revenue Code preclude a right of action under Bivens for such collection activity.T.R. Beech, DC Ariz., 2001-2 USTC ¶50,629. Aff'd, CA-9 (unpublished opinion), 2002-2 USTC ¶50,476.Similarly.R. Kahre, DC Nev., 2003-1 USTC ¶50,409.G.L. Sepp, DC Ariz., 2002-1 USTC ¶50,341.Similarly, with respect to the Eight Circuit.E.P. Scheckel, DC Iowa, 2004-2 USTC ¶50,347.J. Gagliardi, DC Pa., 2005-1 USTC ¶50,311.An individual's third-party action against two IRS agents seeking damages in connection with the forced sale of his home could not be sustained even if the taxpayer were suing the IRS agents in their individual capacity. A Bivens -type action against the agents would be subject to limits imposed by state (Nevada) law and the taxpayer's suit was filed after the expiration of the state's statute of limitations for personal injury.J.W. Anderson, DC Nev., 2001-1 USTC ¶50,249. Aff'd, CA-9 (unpublished opinion), 2002-2 USTC ¶50,477 Municipal employees could not maintain a Bivens -type claim against IRS agents in their individual capacities. The record clearly indicated that with respect to the conduct at issue, the agents acted within their scope of their employment with the IRS.C.D. Kay, DC Nev., 2001-1 USTC ¶50,103.The following cases were dismissed because Bivens claims are not permissible in cases of unlawful collection.D. Connor, DC Tex., 2001-1 USTC ¶50,461.D. Rempel, DC Alas., 2001-1 USTC ¶50,409.M.R. Olsen, DC Calif., 2001-1 USTC ¶50,373.An IRS employee who suspended three tax return preparers from the IRS Electronic Filing Program had qualified immunity from their suit for damages. Regulations authorized her to suspend nonfiling preparers, inform other program participants, and suspend participants who associated with suspended preparers. Thus, her actions did not violate the preparers' rights to due process or their rights under the First and Fifth Amendments. Their claim that she violated their constitutional rights by enforcing vague and overbroad regulations presented a novel legal theory that could not form the basis of a Bivens -type claim. The preparers also failed to offer any evidence to support their claims that she engaged in selective enforcement or harassment.Compro-Tax, Inc., DC Tex., 2000-1 USTC ¶50,406. Aff'd, per curiam, CA-5 (unpublished opinion), 2001-2 USTC ¶50,666.An IRS Criminal Investigation Division (CID) agent who executed search warrants against taxpayers in connection with an investigation for tax evasion was entitled to qualified immunity against the taxpayers' Bivens -type claims. The search warrants were supported by probable cause and were sufficiently specific to ascertain the identity of the items to be seized with reasonable certainty and were lawfully executed. Moreover, it was reasonable to detain the taxpayers to protect the CID agents that conducted the search, to avoid flight, and prevent confusion.D.L. Taxacher, DC Pa., 2000-1 USTC ¶50,346. Aff'd, CA-3 (unpublished opinion), 2001-1 USTC ¶50,139.Similarly.L.F. Bernstein, DC S.C., 97-2 USTC ¶50,980, 990 FSupp 428.Taxpayers were not entitled to amend their Bivens action against IRS agents since they would not have been able to prove any set of facts in support of their claim that they were denied assistance of counsel during a meeting with the IRS agents. The record indicated that they had been advised that they should retain counsel with respect to their alleged status as nontaxpayers. Further, although the IRS agents did not allow the taxpayers additional time in which to retain counsel before initiating collection activities, the meeting with the agents was not a custodial interrogation that required Fifth Amendment warnings regarding the taxpayers' right to have counsel present.J. Horejs, DC Ida., 99-2 USTC ¶50,761.Qualified immunity did not require the dismissal of an individual's claims against individual agents for violations of his civil rights that involved allegations of malicious harassment in connection with his taxes.M.R. Hassell, DC Tex., 99-2 USTC ¶50,671.An individual's constitutional allegations against IRS agents for actions taken in their official capacity were dismissed. The claims were barred by the doctrine of sovereign immunity and the agents had qualified immunity since the taxpayer did not allege that they had acted unreasonably or in bad faith. His constitutional Bivens claims were unsupported by any specific facts or any unique allegations that would distinguish the instant case from other charges involving federal tax collection that have been rejected by the courts.T.M. Kerr, DC Nev., 99-1 USTC ¶50,467. Aff'd, CA-9 (unpublished opinion), 2000-2 USTC ¶50,615.Similarly.G.L. Sutton, DC Ariz., 99-2 USTC ¶50,784.D.L. March, DC Hawaii, 2002-2 USTC ¶50,480.An employee's unsupported Bivens claims alleging constitutional violations by IRS agents for having directed his employer to disregard his W-4 Exemption Form were dismissed. The IRS's right to require an employer to disregard an employee's W-4 Exemption Form has been recognized and upheld. Bright v. Bechtel Petroleum, Inc. (CA-9), 780 F2d 766, followed. Moreover, he alleged no specific facts to distinguish the instant case from other charges involving federal tax collection that have been rejected by the courts. (See also, J. Mcfarland, 85-1 USTC ¶9444)J. Pesci, DC Nev., 99-1 USTC ¶50,439. Aff'd, CA-9 (unpublished opinion), 2000-2 USTC ¶50,547.An individual was not entitled to an award of damages against an IRS official who sought to collect delinquent taxes by issuing an administrative levy against rental payments owed to him by tenants. The taxpayer's pro se complaint for damages, which asserted that the tax laws were unconstitutional, was essentially a Bivens action that failed to state a justiciable claim. The statutory remedy available to the taxpayer was to bring a wrongful levy action.J.R. Johnsons, DC Hawaii, 98-2 USTC ¶50,719.Jurisdiction was lacking over taxpayers' pro se suit alleging constitutional violations by various IRS employees in connection with the seizure of property in satisfaction of delinquent taxes. TheirBivens-style allegations failed to state a justiciable claim because Bivens actions do not extend to tax collection efforts undertaken by federal employees acting in their official capacities. The taxpayers' request for relief against banks and bank employees for aiding the IRS employees in the collection process was also dismissed. The evidence did not support the existence of "state action" on the part of the bank defendants.J.I. Stevens, DC Ida., 98-2 USTC ¶50,571.Jurisdiction was lacking over a tax protestor's pro se suit alleging constitutional violations by various governmental officials with respect to their actions in prosecuting and bringing a civil action against him in connection with his nonpayment of taxes. The suit sought an award of damages against IRS employees, a Justice Department attorney, judges, Assistant U.S. Attorneys, and a retired U.S. probation officer. His claims against IRS employees, who had acted in their official capacities, was essentially a suit against the government, which had not waived its sovereign immunity. His Bivens -style claims were also barred since judges, prosecutors and federal probation officers acting in their official capacities had absolute immunity from suit.W.P. Kirby, DC Pa., 98-1 USTC ¶50,387.An action instituted by married taxpayers who sought a tax refund, an award of civil damages, and changes to various state and federal laws was dismissed for failure to state a justiciable claim. The taxpayers' claims regarding alleged violations of their civil rights and of federal criminal statutes were dismissed; the statutes under which the claims were made either did not provide subject matter jurisdiction over the government and federal officials or failed to confer civil jurisdiction on the federal courts. Furthermore, the taxpayers' Bivens -style claims regarding purported constitutional violations by government officials did not allege specific actions taken to confer liability.D.A. McCabe, DC N.C., 98-1 USTC ¶50,268.An individual's Bivens claim for wrongful levy by the IRS upon his bank account was rejected because the Bivens doctrine does not provide a waiver of the government's sovereign immunity. Furthermore, the taxpayer's claim for injunctive relief was prohibited by the Anti-Injunction Act since he failed to allege that the levy violated procedural requirements.J.T. Fredyma, DC N.H., 98-1 USTC ¶50,166. Aff'd, per curiam, CA-1 (unpublished opinion), 98-2 USTC ¶50,854.An individual's suit against the government seeking damages arising from its failure to honor his claim of exemption from withholding taxes on the Form W-4 was dismissed. To the extent that the individual alleged common law torts in his amended complaint, the United States was properly substituted in place of the IRS employees that were originally named as defendants. Since the United States had not consented to be sued, the court lacked jurisdiction over any common law torts allegedly committed by the IRS employees. No viable Bivens claim was asserted against the IRS employees because the alleged constitutional violations arose from their tax assessment and collection activities.J.M. Scott, DC Ind., 97-2 USTC ¶50,870.Similarly.R.G. Hunt, Jr., DC N.M., 98-1 USTC ¶50,198. Aff'd, CA-10 (unpublished opinion), 98-2 USTC ¶50,858.A Bivens actions could not be maintained against the agents in their individual capacities for an alleged violation of the taxpayer's constitutional rights.R.J. Steinman, DC Ariz., 97-1 USTC ¶50,396.Similarly.W.E. Carlisle, DC Pa., 2005-1 USTC ¶50,178.E. Enax, DC Fla., 2004-1 USTC ¶50,254.S.G. Lang, DC N.J. (unpublished opinion), 99-2 USTC ¶50,620, 73 FSupp2d 448. Aff'd, per curiam, CA-3 (unpublished opinion), 2001-1 USTC ¶50,270.L.D. Williams, DC Ky., 97-1 USTC ¶50,444. Aff'd, per curiam, CA-6 (unpublished opinion), 98-2 USTC ¶50,679.M.R. Hassell, DC Tex., 2001-1 USTC ¶50,193, and 2001-1 USTC ¶50,194.An individual who was not entitled to a redetermination of tax assessments because he failed to exhaust his administrative remedies did not suffer any violation of his constitutional rights under the First, Fifth or Fourteenth Amendments. Moreover, the taxpayer could not contest the deficiency through Administrative Procedures Act and Bivens (403 US 388) claims because filing a timely claim with the Tax Court before paying a tax liability or filing a suit in district court after paying a tax liability are the exclusive remedies for challenging tax liabilities.V. Piljak, DC Calif., 96-2 USTC ¶50,544.An individual could not bring a Bivens claim against the IRS seeking damages for the IRS's disclosure of return information to state revenue officials because such a claim is unavailable against the United States or one of its agencies due to sovereign immunity. The taxpayer failed to name individual IRS agents in his claim. Furthermore, Code Sec. 6013, which authorizes the IRS to disclose certain return information to state revenue officials, was not unconstitutional because it was substantially related to a substantial governmental purpose of tax administration and collection. Although the taxpayer argued that his financial privacy rights were violated, the statute allows disclosure only to appropriate officials under appropriate conditions; therefore, the protection of confidentiality rights was actually strengthened. The statute does not allow the disclosure of confidential information to the public.F.J. Taylor, DC Iowa, 96-1 USTC ¶50,137, 915 FSupp 1015.A District Director and IRS agent were immune from liability for actions taken concerning the determination and assessment of the taxpayer's income tax liability when they had a good faith belief that they were lawful and within the scope of their duties.J.C. DeHoff, DC Ark., 79-1 USTC ¶9326.An individual's damages claims against IRS employees for alleged violation of his constitutional rights were properly dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. A Bivens action could not be maintained against IRS employees for alleged violations of an individual's constitutional rights because Code Sec. 7433 provided the exclusive remedy for recovering damages against an IRS employee for wrongful collection activities.J.A.A. Al-Sharif, CA-11, 2008-2 USTC ¶50,603.An individual's damages claims against IRS employees for alleged violation of his constitutional rights were properly dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. A Bivens action could not be maintained against IRS employees for alleged violations of an individual's constitutional rights because Code Sec. 7433 provided the exclusive remedy for recovering damages against an IRS employee for wrongful collection activities.J.A.A. Al-Sharif, CA-11, 2008-2 USTC ¶50,603.