CARY A. ZOLMAN, Nos. 17-1901T and 17-1902T 

### CONSOLIDATED (Filed: April 6, 2018) 

# FILED APR - 62018 U.S. COURT OF FEDERAL CLAIMS

Pro Se Plaintiff, ) ) ) ) ) ) ) ) ) ) Pro se Plaintiff; Motion to Dismiss for Lack ofJurisdiction; RCFC 12(b)(l); Tax Liens; Damages for Placement and Refusal to Remove Tax Liens; Lack ofJurisdiction to Enjoin Tax Collection, 26 U.S.C. §§ 7421, 7426(a)(l), 7432(a), and 7433(a). v. THE UNITED ST ATES, Defendant.

### ~~~~~~~~~~~~~~) ORDER GRANTING MOTION TO DISMISS FIRESTONE, Senior Judge Pending before this court is defendantthe United States' ("the government") motion, filed February 1, 2018, to dismiss the above-caption consolidated cases for lack of jurisdictionpursuantto Rule 12(b)(l) ofthe Rules ofthe Court ofFederal Claims ("RCFC"). 1 The plaintiff's response to the government's motion to dismiss was due on March 5, 2018. A review ofthe court'srecords indicates that Mr. Zolman has yetto respondto the government's motion to dismiss. For the reasons that follow the court finds that it lacksjurisdiction overplaintiff's case andthus it mustbe dismissed.

1 The plaintiffpreviously filed a complaint with this court where he made similar claims objecting to the collection oftaxes and the imposition ofatax lien by the Internal Revenue Service. That case was dismissed by this court for lack ofsubjectmatterjurisdiction. Zolman v. UnitedStates, No. 15-1116, 2015 WL 7266624 (Fed. CL Nov. 12, 2015).Inhis complaints,pro se plaintiffCary A. Zolman claims thathe is entitledto damages and injunctive reliefbased on Internal Revenue Service ("IRS") having placed two tax liens on properties he allegedly owns in Texas. The first lien is for $3,855.30 which was placed in 2011 and the second lien is for $706,538.79 which was placed in 2015. Mr. Zolman claims he is entitled to damages against the governmentbecause Jennifer Henderson, an agent ofthe IRS, knew the $3,855.30 was improper. Mr. Zolman also appears to be asking this courtto enjointhe IRS to remove the subject liens. As plaintiff, Mr. Zolman, has the burden ofestablishing the court's subject matter jurisdictionby apreponderance ofthe evidence. See Fid. & Guard. Ins. Underwriters, Inc. v. UnitedStates, 805 F.3d 1082, 1087 (Fed. Cir. 2015) (citation omitted). "In deciding a motion to dismiss for lack ofsubject matterjurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and construes them in the light most favorable to the plaintiff." Estes Express Lines v. UnitedStates, 739 F.3d 689, 692 (Fed. Cir. 2014) (citation omitted). Althoughpro se plaintiffs are held to less stringent pleading standards, they must still demonstrate that the court hasjurisdictionto hear their claims. See Matthews v. UnitedStates, 750 F.3d 1320, 1322 (Fed. Cir. 2014) (citation omitted). Mr. Zolman has not cited any statutes or regulations to support his claims against the government. The court, however, has examinedthe various statutes governingtax liens and finds that none ofthese statutes, including 26 U.S.C. §§ 7426(a)(l), 7432(a), and 7433(a) provide this court withjurisdictionto hear Mr. Zolman's claims. In addition,

as discussed below, this court does not havejurisdiction to enjoin the IRS from collecting taxes per 26 U.S.C. § 7421. 2First, as the government argues, claims challenging imposition oftax liens may be brought only by thirdparties under 26 U.S.C. § 7426(a)(l) and notby the taxpayer. The statute states: Wrongful levy.--Ifa levy has been made onproperty or property has been sold pursuantto a levy, any person (other than the person against whom is assessed the tax out ofwhich such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court ofthe United States. Such action may be brought without regard to whether suchproperty has been surrendered to or sold by the Secretary. 26 U.S.C. §7426(a)(l). Mr. Zolman, as the taxpayer, cannotmake a claim for wrongful levy under this statute. Moreover,jurisdiction over such claims is proper only in the district courts ofthe United States. Second, to the extent Mr. Zolman's claims damages resulting from unauthorized collection actions or failure to release a lien under 26 U.S.C. §§ 7432-33 this court does not havejurisdictionbecause those claims may be heard only in the district courts ofthe United States, as well. Specifically 26 U.S.C. 

### § 7432(a) states: Ifany officer or employee ofthe Internal Revenue Service knowingly, or by reason ofnegligence, fails to release a lien under section 6325 on the property ofthe taxpayer, such taxpayer may bring a civil action for damages against the United States in a district court ofthe United States. 26 U.S.C. § 7433(a) provides that: If, in connection with any collection ofFederal tax with respect to a taxpayer, any officer or employee ofthe Internal Revenue Service recklessly or intentionally, orby reason of 3negligence, disregards any provision ofthis title, or any regulationpromulgated under this title, suchtaxpayer may bring a civil action for damages against the United States in a district court ofthe United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions. The Federal Circuit, in Ledfordv. United States, determined that the Court of Federal Claims does not havejurisdiction to hear "a claim seeking damages flowing from the allegedly unlawful collection activities ofthe IRS" under 26 U.S.C. § 7433(a) on the grounds thatthe statute provides that only a district court ofthe United States may hear such claims. Ledfordv. UnitedStates, 297 F.3d 1378, 1382 (Fed. Cir. 2002). Thus, Mr. Zolman's claims for damages against the IRS or its agent for placing or refusing to release a lien mustbe dismissed for lack of jurisdiction. Finally, to the extent Mr. Zolman is seeking an injunction to prohibitthe collection oftaxes through these liens, the government argues and the court agrees thatunder 26 U.S.C.§ 7421, the court has no statutory authority to enjoin the IRS from its collection efforts should it seekto enforce the liens. Id. at 1381. Because this court lacksjurisdiction over any ofMr. Zolman's possible claims against the government regarding the tax liens he has identified, the government's motion to dismiss is GRANTED andMr. Zolman's complaints are DISMISSED. The Clerk is directed to enterjudgmentaccordingly. IT IS SO ORDERED.

Senior Judge

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