NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 30, 2010*

Decided December 21, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 10-2563

STEVEN C. DENK,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United 

States District Court for the 

Northern District of Illinois, 

Eastern Division.

No. 09 C 5891

Charles R. Norgle, Judge.

Order

The Internal Revenue Service notified Steven Denk that he owes $1.2 million in taxes. The notice told Denk that he could contest this assessment in the Tax Court, or that 

he could pay and sue for a refund in a United States District Court. Denk did not take 

either option. Without paying, he filed this suit in district court—not against the United 

States (the right defendant in a suit seeking a refund), but against the Commissioner of 

Internal Revenue and eight of the Commissioner’s subordinates. The complaint makes 

several tax-protest arguments, such as that Congress is powerless to tax incomes of natural persons and that the defendants have violated the Constitution by refusing to con-

 

* After examining the briefs and the record, we have concluded that oral argument is unnecessary. 

See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 10-2563 Page 2

cede that their collection efforts are unlawful. Denk asked the judge to enjoin the defendants from trying to enforce the Internal Revenue Code against him.

The United States filed a certificate under the Westfall Act, 28 U.S.C. §2679(b)(2), (d), 

and the district court substituted the United States as the defendant, which explains the 

caption on this order. The substitution requires the litigation to proceed under the Federal Tort Claims Act, which, because it does not cover any claim related to the “assessment or collection of any tax,” 28 U.S.C. §2680(c), does not offer Denk any prospect of 

success. He would prefer to retain the individual defendants, but they are not proper 

parties. Denk wants to proceed under the implied remedy recognized in Bivens v. Six 

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), but we held in Cameron v. IRS, 773 

F.2d 126 (7th Cir. 1985), that Bivens does not displace the elaborate statutory system for 

litigating claims related to taxation. Accord, Adams v. Johnson, 355 F.3d 1179 (9th Cir. 

2004); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401 (4th Cir. 2003); Shreiber v. Mastrogiovanni, 214 F.3d 148 (3d Cir. 2000); Dahn v. United States, 127 F.3d 1249 (10th Cir. 1997); 

Vennes v. Unidentified Agents, 26 F.3d 1448 (8th Cir. 1994); McMillen v. Department of the 

Treasury, 960 F.2d 187 (1st Cir. 1991). These decisions implement the Supreme Court’s 

directive that courts not use Bivens to circumvent limitations integral to statutory systems for contesting particular kinds of administrative action. See, e.g., Hui v. Castaneda, 

130 S. Ct. 1845 (2010); Wilkie v. Robbins, 551 U.S. 537 (2007).

The Internal Revenue Service told Denk where, and how, to contest the agency’s 

view of Denk’s tax obligations. By choosing to disregard that advice, Denk ensured that 

his suit had no chance of success. A federal district court lacks jurisdiction to review 

unpaid tax assessments; to obtain review in a district court, Denk had to pay and sue for 

a refund. 28 U.S.C. §1346(a)(1); Flora v. United States, 362 U.S. 145, 177 (1960). What is 

more, the Tax Injunction Act, 26 U.S.C. §7421(a), bars the sort of prospective relief that 

Denk seeks.

Denk’s appeal is frivolous. We give Denk 14 days to show cause why we should not 

impose a sanction of $4,000, the normal fine for frivolous tax-protest appeals. See Szopa 

v. United States, 460 F.3d 884, 887 (7th Cir. 2006). The judgment is affirmed, and an order 

to show cause is issued.