Annotations- No Levy Pending

---

 

 

6333 Annotations: No Levy Pending- Levy

 

 

Production of Books: No Levy Pending

 

[73-2 USTC ¶9745] United States of America , Plaintiff v. Terrence Dean Oaks, Defendant

U. S. District Court, Central Dist. of Calif., Case No. 11820-WPG-CD, 360 FSupp 855, 6/26/73

[Code Secs. 6333 and 7602]

Procedure: Production of books: Summons: Levy: Criminal case: Motion to suppress.--An employee-defendant's motion to suppress information obtained by the IRS from his employer was denied where the employer voluntarily relinquished records. This was true even though in response to an employer's request for documentary evidence of the IRS's power to inspect the books made at the conclusion of the interview, the agent gave the employer a form entitled "Notice of Requirement to Exhibit Books and Records" which carries the assertion that it is issued under the authority of Code Sec. 6333 when in fact no levy was issued under that section. The defendant's motion to suppress information obtained from the issuance of several other civil summonses under Code Sec. 7602 because they were employed for the improper purpose of furthering a solely criminal investigation was also denied where such summonses were issued in good faith before the recommendation for prosecution and the defendant did not show the investigation was solely criminal.

Paul H. Sweeney, Assistant United States Attorney, Los Angeles , Calif. , for plaintiff. John W. Hornbeck, Chief Deputy Federal Public Defender, 707 U. S. Courthouse, Los Angeles , Calif. , for defendant.

Memorandum of Decision and Order

GRAY, District Judge:

The defendant has been indicted for wilfully failing to file an income tax return and falsely claiming an inordinate number of exemptions on a withholding exemption certificate (W-4 form) supplied by his employer. An Internal Revenue Service investigation was initiated on March 30, 1972 , when a revenue officer associated with the Collection Division of the IRS visited the defendant's employer and requested to see the defendant's records, including earnings statements and the W-4 form. The revenue agent testified that the employer voluntarily relinquished these records but at the conclusion of the interview asked the agent for some documentary evidence of the IRS' power to inspect them. In keeping with asserted IRS policy, the revenue officer gave the defendant's employer a form entitled "Notice of Requirement to Exhibit Books and Records" and which carries the assertion that it is issued under the authority of 26 U. S. C. §6333. That section provides:

"If a levy has been made or is about to be made on any property, any person having custody or control of any books or records, containing evidence or statements relating to the property or right to property subject to levy, shall, upon demand of the Secretary or his delegate, exhibit such books or records to the Secretary or his delegate."

The Government concedes that there was no present or impending levy at the time of the internal revenue officer's investigation.

Several months later, the defendant's case was referred to the Intelligence Division, and on October 5, 1972 , a special agent was assigned to the case for the purpose of developing information about possible criminal conduct. The special agent immediately obtained further records from the defendant's employer and issued an internal revenue summons pursuant to 26 U. S. C. §7602 against the defendant's accountant. Section 7602 authorizes the examination of any documents or witnesses for the purpose of ascertaining the potential tax liability of any person. On October 10, 1972 , the special agent interviewed the defendant and advised him that he was the subject of a criminal investigation. The special agent thereafter served at least ten §7602 summons upon third parties seeking to acquire information that would assist the investigation.

[Motion to Suppress]

The defendant has moved to suppress all of the information acquired by the IRS on several grounds. He first argues that the evidence, including the W-4 form, was improperly acquired by the revenue officer. The defendant maintains that the revenue officer effectively represented that the employer was required under §6333 to divulge its personnel files. However, it appears from the testimony at the hearing that the defendant's employer voluntarily cooperated with the revenue officer and willingly opened the defendant's file to inspection. The testimony further indicates that the §6333 form was presented only because the employer wanted a written memorialization of the fact that the IRS had scrutinized its records. It does not appear that the revenue officer actually employed the §6333 power as a lever to force the employer to bare its files.

It certainly would have been an abuse of the §6333 procedure had the IRS discovered the defendant's tax liability by requiring the employer to cooperate. The power to compel the production of records under §6333 is confined to instances where "a levy has been made or is about to be made." If a levy had been contemplated, the defendant would have been entitled to notice of a tax deficiency and a demand for payment. See 26 U. S. C. §6331. In this case there had not even been an assessment of tax liability. An investigative summons issued under §7602 is the prescribed device for obtaining information concerning suspected tax liability. This procedure at least provides for an adversary hearing in a district court to consider any objections to enforcement of the summons. See 26 U. S. C. §7604. Section 6333 is a summary process employed in the context of a present or impending levy after the taxpayer has been notified of a tax liability assessment. A §6333 form, therefore, is a rather curious means of acknowledging that the IRS has inspected records or has the power to examine voluntarily revealed records. Although this court declines to grant the motion to suppress, in light of its conclusion as to the voluntary production of the records, the appearance of such a form necessarily invites the suspicion that the IRS has misused the §6333 power by compelling the production of records without the statutory prerequisites. The practice of using such a form, with its implication of compulsion, is of doubtful propriety for the purpose here claimed by the Government.

[Civil Summons]

The defendant next argues that the civil summons issued under §7602 after October 10, 1972 , were employed for the improper purpose of furthering a solely criminal investigation. Cases examining the §7602 summons power have consistently found that its use is permissible if there are both civil and criminal ramifications to the investigation, U. S. v. DeGrosa [69-1 USTC ¶9154], 405 F. 2d 926 (3d Cir. 1969); U. S. v. Michigan Bell Tel. Co. [69-2 USTC ¶9625], 415 F. 2d 1284 (6th Cir. 1969); or even if the investigation is principally criminal, U. S. v. Wilson, 425 F. 2d 1069 (9th Cir. 1970); U. S. v. Egenberg [71-1 USTC ¶9436], 443 F. 2d 512 (3d Cir. 1971). The objective of the investigation must be characterized as solely criminal in nature before use of a civil summons exceeds its permissible scope. Venn v. U. S. [68-2 USTC ¶9518], 400 F. 2d 207 (5th Cir. 1969); U. S. v. Roundtree [69-2 USTC ¶9733], 420 F. 2d 845 (5th Cir. 1969). The burden is on the taxpayer to demonstrate that the summons is being used for the improper purpose of investigating only criminal behavior. U. S. v. Ferrone, 438 F. 2d 381 (3d Cir. 1971). The Supreme Court's recent opinion in Donaldson v. U. S. [71-1 USTC ¶9173], 400 U. S. 517, 536 (1971), accepts these principles and elaborates that "under §7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution." Donaldson also refused to find that the appearance of a special agent created a presumption that an investigation was solely criminal; the criminal and audit divisions of the IRS participate together in a broad range of investigative activities. 400 U. S. at 534-35. See also, U. S. v. Kessler [72-2 USTC ¶9661], 338 F. Supp. 420 (S. D. Ohio 1972).

It is not entirely clear from the evidence in this case at what point a "recommendation for criminal prosecution" was made. Even though the defendant was told on October 10, 1972 , that he was the subject of a criminal investigation, this does not establish that the investigation was solely criminal. In fact, this is unlikely because the defendant's case was not referred to a special agent until October 5, 1972 , and very little had been done on the case by October 10. The Government contends that the operative recommendation for prosecution is that formally made to the Department of Justice after the case has passed through the hierarchy of the IRS Intelligence Division. Cf. U. S. v. Kyriaco [71-2 USTC ¶9511], 326 F. Supp. 1184 (C. D. Calif. 1971). A written prosecution report was not made in this case until December 1, 1972 . This cannot be considered to be the relevant recommendation, as is apparent from the fact that the defendant was arrested on November 22, 1972 . This court believes that the recommendation of the local special agent in charge of the case, even if not final or reduced to writing, should be the operative act for determining the validity of a §7602 summons. U. S. v. Billingsley [72-1 USTC ¶9191], 331 F. Supp. 1091, 1092 n. 1 (N. D. Okla. 1971); see U. S. v. Weingarden [72-1 USTC ¶9105], 333 F. Supp. 474 (E. D. Mich. 1971). Although the record is incomplete, there is no indication that the recommendation for prosecution occurred before November 20, 1972 , when the special agent discussed the case with an Assistant United States Attorney. An arrest warrant was issued the next day and the defendant was arrested on November 22. The defendant's motion to suppress must therefore be denied because the last civil summons was issued on November 15.

A §7602 summons must be employed in good faith even had there been no recommendation for prosecution. Donaldson's holding that the summons must be issued in good faith and prior to a recommendation is in the conjunctive. See U. S. v. Vey [71-1 USTC ¶9394], 324 F. Supp. 552 (W. D. Pa. 1971); U. S. v. Billingsley, supra; U. S. v. Kessler, supra. There is no evidence, however, indicating that the investigation was a broad and unjustified fishing expedition or that any §7602 summons was fraudulently employed after the special agent had resolved that criminal sanctions were warranted.

The defendant's motion to suppress is denied.

 

 

 

 

[75-1 USTC ¶9157] United States of America , Appellee v. Terrence Dean Oaks, Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 74-1571, 509 F2d 1403, 12/24/74 , Rem'g District Court, 73-2 USTC ¶9745, 360 F. Supp. 855

[Code Secs. 7203 and 7205]

Crimes: Failure to file return: False withholding certificate: Defenses: Discriminatory prosecution.--The taxpayer, an advocate of unorthodox monetary theories, had alleged sufficient facts to be entitled to a hearing on his contention that he was discriminatorily singled out for prosecution for failing to file a 1971 return and for supplying a false withholding certificate. Case remanded for a hearing on this issue.

John W. Hornbeck, Deputy Federal Public Defender, Los Angeles , Calif. , for appellant. Lawrence Campbell, Assistant United States Attorney, Los Angeles, Calif., for appellee.

Before WRIGHT and GOODWIN, Circuit Judges, and SCHWARTZ, ^* District Judge.

Opinion

GOODWIN, Circuit Judge:

Terrance Dean Oaks appeals from a conviction for willfully failing to file an income tax return for 1971 and willfully supplying a false withholding certificate in violation of 26 U. S. C. §§ 7203, 7205. We remand for an evidentiary hearing.

Oaks failed to file an income tax return for 1971 despite earnings of $7,890.24. On July 13, 1971 , Oaks filed a withholding exemption certificate with his employer claiming 15 dependents even though he had, as he later admitted, no such number of dependents.

Oaks attempted to justify his failure to comply with the revenue laws on the basis of an elaborate monetary theory. He allegedly believed that he had not earned "dollars," since "dollars," under the Constitution and certain Supreme Court decisions, could only mean paper currency fully redeemable in gold or silver.

Oaks sought to publicize his theory in the political arena. From February until June of 1972, he ran, unsuccessfully, in the Republican primary for the Fourth District of the California State Assembly. His platform was based on the issue of legal tender. He received publicity in the Los Angeles Times by paying his filing fee with 384 silver half-dollars.

[Discriminatory Prosecution]

Oaks contends that he was selected for prosecution solely because he protested publicly against federal tax policies. While we express no opinion upon this issue, the law in this circuit requires the district court, upon a proper offer of proof, to allow Oaks to present evidence, if any, that he has been singled out for discriminatory prosecution.

In United States v. Steele, 461 F. 2d 1148 (9th Cir. 1972), we held that a policy of selective prosecution which purposefully discriminates against persons choosing to exercise their First Amendment rights is impermissible. The defendants in Steele were able to demonstrate such discrimination by showing that, while the government must have been aware of other violations, it chose to prosecute only those offenders who had publicized their opposition to the census laws. Compare Spillman v. United States, 413 F. 2d 527, 530 (9th Cir.), cert. denied, 396 U. S. 930 (1969), where we held that mere deviation from prosecutorial "policy" could not justify acquittal.

Oaks argues that under this circuit's Steele rationale he has alleged facts sufficient to require a hearing on his claim of discriminatory selective prosecution. Hearings on similar pretrial objections are usually in order when enough facts are alleged to take the question past the frivolous stage. See, e.g., Lawn v. United States [58-1 USTC ¶9189], 355 U. S. 339, 346-50 (1958); Nardone v. United States, 308 U. S. 338, 342 (1939); United States v. Fujimoto, 102 F. Supp. 890, 893 (D. Hawaii 1952). We hold that Oaks has alleged enough facts to require an evidentiary hearing.

The government contends that Oaks waived the defense of discriminatory prosecution, if it is a defense, because he brought no formal motion pursuant to Fed. R. Crim. P. 12(b)(2) prior to trial. We agree with the major premise of this argument: the defense must be presented in accordance with the requirements of Rule 12(b)(2). See United States v. Berrigan, 482 F. 2d 171, 175 (3d Cir. 1973). But we do not agree that the defense must necessarily be tendered in writing or formally denominated as a "Rule 12" motion in order to avoid waiver. In Davis v. United States, 411 U. S. 233, 243 (1973), a defense covered by Rule 12(b)(2) was held to have been waived when not raised, even orally, before trial. But the Supreme Court in Fallen v. United States, 378 U. S. 139, 142 (1964), cautioned against an overly rigid or formalistic interpretation of the federal criminal rules. The record before use reveals that the point was raised during the pretrial hearing on June 4, 1973 . Counsel's presentation, while not in writing, was sufficient to comply with Rule 12(b)(2). And even if a written motion were needed, the district court's comment, "All right. The point is duly noted," constituted "relief from * * * waiver" within the meaning of Rule 12(b)(2). There was no further discussion of the issue until trial, but Oaks' counsel had attempted to introduce evidence at the motions hearing and had been rebuffed. He had made his record.

The district court appeared to be concerned about the possibility of disclosure of confidential Internal Revenue Service information. We note that the government will be able to make a claim of privilege at the hearing. See, e.g., Fed. R. Crim. P. 16(b). If the defendant makes an initial factual showing of impermissible discrimination, then the trial court may, in the exercise of its discretion, require disclosure of relevant privileged information. See United States v. Berrigan, 482 F. 2d at 181. But even then the court can minimize the risk to the government by holding the proceedings in camera and issuing appropriate protective orders. Fed. R. Crim. P. 16(e).

Oaks has raised other points, but they are without merit.

The cause is remanded for a hearing on the issue of discriminatory prosecution. If the district court finds that there was impermissible discrimination, it should dismiss the indictment. It is does not find such discrimination, then the conviction shall stand.

^* The Honorable Edward J. Schwartz, Chief Judge, United States District Court for the Southern District of California, sitting by designation.

 

 

 

[2003-1 USTC ¶50,277] Ralph G. Sachs, Plaintiff-Appellant v. United States of America, acting through the Internal Revenue Service, Defendant-Appellee.

U.S. Court of Appeals, 6th Circuit; 01-2224, 59 FedAppx 116, February 21, 2003 .

Unpublished opinion affirming DC Mich., 2001-2 USTC ¶50,640.

[ Code Secs. 6331 and 7433]

Unauthorized collection actions: Civil actions: Damages: Exclusive remedy. --

An individual's complaint was properly dismissed because an alleged IRS violation of the Internal Revenue Manual and a revenue ruling could not support a claim under Code Sec. 7433, as that provision authorizes damages only in cases where Title 26 or any corresponding sections of the regulations have been violated. Alleged Fourth Amendment violations similarly fell outside the scope of Code Sec. 7433. Furthermore, because Code Sec. 7433 is the exclusive remedy for recovering damages against IRS agents for violation of constitutional rights, a Bivens action could not be maintained.

 

Summonses: Seizure: Notice requirements. --

A summons issued to a brokerage firm that held securities for an individual was proper, even though it did not provide ten-day notice and was not sent by certified mail. The summons was issued for the purpose of collection or seizure pursuant to Code Sec. 6333; therefore, the certified mailing and notice requirements of Code Sec. 7602 did not apply. Furthermore, the IRS was only required to provide a notice of seizure to the brokerage firm, and not to the individual himself.

[ Code Sec. 6502]

Sale of seized property: Notice of sale or seizure. --

An IRS levy on an individual's assets was not barred due to the expiration of the limitations period. The IRS brought suit against the taxpayer prior to the expiration date of the collection statute, whereupon the period of collectibility was extended, and the time period did not lapse until the tax was satisfied.

Before: Daughtrey and Cole, Circuit Judges, and Sargus, District Judge.

¬ Caution: The court has designated this opinion as NOT FOR PUBLICATION. Consult the Rules of the Court before citing this case.®

OPINION

COLE, JR., Circuit Judge: Plaintiff-Appellant Ralph G. Sachs appeals the dismissal of his claim against Defendant-Appellee United States of America, acting through the Internal Revenue Service ("IRS"), for unauthorized collection actions in violation of 26 U.S.C. §7433. Quick and Reilly, Inc. ("Q&R") was also named as a defendant in the original complaint; however, Sachs does not appeal the dismissal of his complaint against Q&R. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district court dismissed Sachs's complaint for failure to state a claim upon which relief could be granted. For the reasons that follow, we AFFIRM the judgment of the district court.

I. BACKGROUND

 

Sachs owed the IRS back taxes for the years 1978 and 1979. The Collection Statute Expiration Date ("CSED"), until which the IRS could collect the underlying tax liability in this matter, was July 4, 1999 .

On June 1, 1999 , the IRS mailed a Notice of Levy to Q&R, the brokerage firm which held Sachs's investment securities. Q&R received the notice on June 11, 1999 , and had twenty-one days from the date of receipt to forward the requested funds to the IRS. During this three-week period. Sachs informed Q&R that he believed IRS internal rulings prohibited Q&R from liquidating his securities and forwarding the funds to the IRS. In response, Revenue Officer Jennifer Zogut faxed a summons to Edwin Mendez, Q&R's Assistant Director of Compliance, requesting information regarding the negotiable instruments Q&R held for Sachs, and requesting a response by the next afternoon.

On or about July 1, 1999 , Q&R informed Sachs that it was going to respond to the Notice of Levy by liquidating certain securities which he owned and forwarding the corresponding monies to the IRS. On July 1, 1999 , the IRS initiated court proceedings to have the tax liability reduced to a judgment.

On or about July 13, 1999 , a check in the amount of $251,511.09, in full satisfaction of the levy, was obtained by the IRS from Sachs's account with the local Q&R office. On September 23, 1999 , Sachs filed a Form 843, Claim for Refund, which was denied by the IRS. By filing this claim, Sachs effectively exhausted his administrative remedies, thereby providing the district court with jurisdiction over the present suit.

II. ANALYSIS

This Court reviews de novo a district court's grant of a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Downie v. City of Middleburg Heights, 301 F.3d 688, 693 (6th Cir. 2002). In reviewing a Rule 12(b)(6) motion, this Court treats all well-pleaded allegations in the complaint as true, and the Court affirms the dismissal only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle him or her to relief." Id.

A. Absence of Physical Seizure

26 U.S.C. §7433(a) provides for the recovery of damages resulting from unauthorized collection activities when "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." Section 6331(a) of the Internal Revenue Code ("the Code") states that when any person is liable to pay any tax and neglects or refuses to pay that tax, it shall be lawful for the United States to collect that tax "by levy upon all property and rights to property ... belonging to such a person or on which there is a lien provided in this chapter for the payment of such tax." 26 U.S.C. §6331(a). The Code also notes that "[t]he term `levy' as used in this title includes the power of distraint and seizure by any means." 26 U.S.C. §6331(b).

Sachs contends that the IRS was required to physically seize the securities, rather than "seizing" their monetary value by check after their liquidation. In failing to physically seize the securities, Sachs argues that the IRS violated §6331 of the Code, thereby entitling Sachs to damages under §7433.

Section 7433 of the Code authorizes damages for the intentional, reckless, or negligent disregard of a "provision of this title, or any regulation promulgated under this title." 26 U.S.C. §7433(a). A successful claim under §7433 can only occur, therefore, when Title 26, or a regulation promulgated thereunder, is violated. Here, the alleged violation is a violation of the Internal Revenue Manual and a Revenue Ruling. These are not violations of Title 26, nor are they violations of any corresponding sections of the Code of Federal Regulations. As such, Sachs's claim falls outside the scope of §7433's protection.

The Ninth Circuit has ruled similarly. In Shwarz v. United States [ 2001-1 USTC ¶50,111], 234 F.3d 428 (9th Cir. 2000), the court ruled that "because the [IRS] manual and the [IRS National Policy Statement] are not code provisions or regulations, violations of the manual and the NPS cannot support a claim under §7433." Id. at 434; see also Gonsalves v. Internal Revenue Serv. [ 92-2 USTC ¶50,474], 975 F.2d 13, 16 (1st Cir. 1992) (holding that §7433 does not support a claim for a "right" that is created by internal IRS policy); cf. Schweiker v. Hansen, 450 U.S. 785, 789 (1981) ( per curiam) (holding that an agency policy manual "is not a regulation," "has no legal force," and "does not bind" the agency).

Because the alleged violation pertains to an internal IRS policy, rather than a portion of the Code or corresponding regulations, §7433 cannot support a claim by Sachs based on the failure of the IRS to physically seize the actual securities.

B. Illegal Seizure in Violation of the Fourth Amendment

Sachs argues that by forcing Q&R to liquidate the securities, the IRS "constructively seized" the assets, and that by constructively forcing this liquidation to obtain a check rather than the instruments themselves, the United States violated the Fourth Amendment. Sachs contends that this position is supported under any one of three alternative theories: (1) a §7433 theory: (2) a G.M. Leasing theory; and (3) a Bivens theory.

1. Section 7433 Theory

The Fourth Amendment is not a provision of Title 26, nor is it a regulation promulgated thereunder. See 26 U.S.C. §7433(a). Thus, by the plain language of the statute alleged Fourth Amendment violations fall outside its scope.

2. G.M. Leasing Theory

Sachs argues that the IRS was required to obtain a writ of entry in order to physically seize his securities. The Supreme Court has held that a warrantless entry by IRS agents into a corporation's private offices violated the Fourth Amendment because a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. G.M. Leasing Corp. v. United States [ 77-1 USTC ¶9140], 429 U.S. 338, 352-53 (1977).

In this case, the IRS agents never entered any private property of Sachs. Sachs nevertheless argues that because the securities were seized on behalf of the government and subsequently liquidated on the government's behalf, this "constructive seizure" was substituted for the required physical seizure, and therefore gives rise to a Fourth Amendment claim.

G.M. Leasing does not support the extrapolation suggested by Sachs. In this context, the "constructive seizure" that Sachs contends occurred is not the legal equivalent of an actual, physical seizure because G.M. Leasing recognizes a Fourth Amendment violation based on the privacy concerns that accompany a physical intrusion. The G.M. Leasing Court stated that, while §6331 of the Code is "silent on the subject of intrusions into privacy," it is also an "authorization for all forms of seizure." Id. at 358 (emphasis added). While the IRS does need a warrant to enter private premises in order to seize a delinquent taxpayer's property, the IRS does not need judicial authorization to simply seize property where it does not intrude upon privacy rights. See id. at 358: see also Maraziti v. First Interstate Bank of Cal. [ 92-1 USTC ¶50,206], 953 F.2d 520, 524 (9th Cir. 1992) (stating that "when the government seizes property to collect delinquent taxes, there is no violation of the Fourth Amendment if the seizure is not an invasion of the taxpayer's personal effects or premises"). The G.M. Leasing Court did not find a Fourth Amendment violation in the seizure of automobiles which "took place on public streets, parking lots, or other open places and did not involve any invasion of privacy." [ 77-1 USTC ¶9140], 429 U.S. at 351.

Because the IRS did not invade Sachs's privacy rights, G.M. Leasing does not support a finding in the present case that there was a Fourth Amendment violation.

 

3. Bivens Theory

Lastly, Sachs argues that he is able to state a claim for a Fourth Amendment violation under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Court held that damages may be obtained for injuries resulting from a violation of the Fourth Amendment by federal officials. Id. at 395-96.

This argument is unavailing because this Court has held that a Bivens claim seeking monetary damages cannot be brought for actions arising out of the collection of taxes. See Fishburn v. Brown [ 97-2 USTC ¶50,742], 125 F.3d 979, 982-83 (6th Cir. 1997); accord Downie, 301 F.3d at 695 (citing Fishburn for the proposition that a taxpayer cannot bring a Bivens action against IRS agents for Fourth Amendment violations).

Sachs contends that Fishburn should not be read as a blanket prohibition against claims for monetary damages for actions out of the collection of taxes. Rather. he asserts that Fishburn only precludes Bivens actions that should have been part of a §7433 claim. There is no basis for such a reading of Fishburn.

This Court has previously stated explicitly and unequivocally that taxpayers cannot "bring a Bivens action against IRS agents for violations of [their] Fourth Amendment rights." Downie. 301 F.3d at 695. Section 7433 provides that it shall be the "exclusive remedy for recovering damages from such actions." 26 U.S.C. §7433(a). "Although the damages provision does not mention constitutional violations, [this Court] noted that `[t]hese carefully crafted legislative remedies confirm that, in the politically sensitive realm of taxation, Congress's refusal to permit unrestricted damages actions by taxpayers has not been inadvertent." Downie, 301 F.3d at 695 (quoting Fishburn [ 97-2 USTC ¶50,742], 125 F.3d at 983).

Thus, because Bivens actions are not available to taxpayers claiming violations of the Fourth Amendment, Sachs's Bivens theory is not a valid claim for which relief may be granted.

Because none of the theories provided by Sachs is legally viable, the district court's dismissal of his Fourth Amendment claim under 12(b)(6) was proper.

C. Remaining Issues

In addition, we are not persuaded by any of the other arguments asserted by Sachs on this appeal. First, Sachs argues that he possesses an actionable claim under 26 U.S.C. §7433(a) because the IRS did not possess a valid federal tax lien. However, the IRS did possess a valid lien, statutorily imposed pursuant to 26 U.S.C. §6321. Moreover, a valid federal lien is not required for the IRS to levy property under 26 U.S.C. §6331.

Sachs also contends that the IRS issued an improper summons because the summons was not sent by certified mail, and the summons did not provide ten-day notice. This argument is unavailing because these requirements apply to summonses issued for the purpose of ascertaining the correctness of a return, making a return, or determining a tax liability pursuant to 26 U.S.C. §7602. The summons in question here, however, was issued for the purpose of collection or seizure pursuant to 26 U.S.C. §6333, and the certified mailing and notice requirements therefore do not apply.

Next, Sachs asserts that the IRS failed to adequately notify Sachs of the seizure. Pursuant to 26 U.S.C. §6335, the IRS was only required to provide a notice of seizure to Q&R, and it properly did so.

Lastly, Sachs argues that the levy on the assets held by Q&R was improper because the statute of limitations had expired. The period during which a tax may be collected is extended if a court proceeding is filed, and the time period shall not lapse until the liability for the tax is satisfied. See 26 U.S.C. §6502(a). Because the IRS brought suit against Sachs prior to the expiration date of the collection statute, the deadline was extended.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.