UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA SCOTT WHITTINGTON, ) ) ) ) v. UNITED STATES,Plaintiff,

Defendant. ) Civil Case No. 07-2135 (RJL) ) ) ) 

# .,.,:,_ MEMORANDUM OPINION (June 

### JL, 2012) [#27] Before the Court is the United States' motion to dismiss the remaining counts of plaintiffScott Whittington's amended complaint (Counts 19, 27, 30-33, 35, and 39) alleging misconduct by the Internal Revenue Service ("IRS"). Plaintiffseeks damages pursuantto the TaxpayerBill ofRights ("TBOR''), 26 U.S.C. § 7433, and injunctive reliefunder the Administrative ProcedureActf'APA"), 5 U.S.C. §§ 701 

### etseq., in connection with alleged violations ofthe Internal Revenue Code (the "Code"). Forthe following reasons, the Court GRANTS the United States' motion to dismiss. BACKGROUND Plaintiff's allegations are well known to this Court. Plaintifffiled this action in November 2007 alleging IRS misconduct in 39 counts copied 

### verbatim from a complaint he had previously filed in 2006 and which this Court dismissed in February 2007. 1

In plaintiff's 2006 suit, this Court granted the United States' motion to dismiss for lack ofsubject matterjurisdiction on grounds thatplaintifffailed to exhausthis administrative remedies under 26 U.S.C:§ 7433(d)(l) and because plaintiff's other statedCompl. 4-20 [Dkt. #1]. Afterthe United States moved to dismiss plaintiffs complaint, plaintiffmoved to amend his complaint, which this Court allowed. Plaintiffthen submitted a sixty-page "'Statement ofFacts" appended to his complaint, recounting his attempts to cease tax withholding, extensive correspondence with IRS and Department of Treasury officials about his tax assessments and failure to file taxreturns, his FOIA requests, the IRS's efforts to collectpast taxes owed and levy his assets, and an IRS administrative hearingplaintiffparticipated in related to his tax assessment.2 

### See generallyAm. Compl., Statement ofFacts [Dkt. #14]. The United States again moved to dismiss, and, on March 23, 2009, this Court granted that motion, dismissing certain counts for lack ofsubject matterjurisdiction and other counts for failure to state a claim under 26 U.S.C. § 7433 becauseplaintifffailed to allege administrative exhaustion. 

### Whittington v. 

### UnitedStates, 607 F. Supp. 2d 43, 43-46 (D.D.C. 2009). On September 29, 2011, our Circuit affirmed in part and reversed in partthat decision, remanding certain counts because exhaustion is not a pleading requirement under§ 7433. J. & Mem. 2 [Dkt. #26] (citing

### Kim v. 

### UnitedStates, 632 F.3d 713, 718-19 (D.C. Cir. 2011)). Then, on December 14, 2011, the United States filed the instant motion to dismiss those remanded counts.

bases forjurisdictionwere each either statutorily orotherwise precluded. 

### Whittington v. 

### UnitedStates, No. 06-1591,2007 WL 495803, *'1-3 (D.D.C. Feb. 12, 2007). 2 The Courttreats plaintiffs Statement ofFacts as incorporated into his complaint for purposes ofthe United States' motion to dismiss. 

### In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005).

2STANDARD OF REVIEW The United States has moved to dismiss the remaining counts ofplaintiffs complaint for failure to state a claim upon which reliefmay be granted. Fed. R. Civ. P. 12(b)(6). A court considering a motion to dismiss, however, may only consider "the facts alleged in the complaint, any documents**eit~er** attached to orincorporated in the complaint and matters ofwhich [the court] may takejudicial notice." E.E.O.C. v. St. FrancisXavier ParochialSch., 117 F.3d 621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complaintmust "plead[] factual content that allows the courtto drawthe reasonable inference that the defendant is liable for the misconduct alleged." Ashcroftv. Iqbal, 129 S. Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the court construes the complaint in theplaintiffs favor and grants the plaintiffthe benefit ofall inferences that can be derived from the facts alleged. Schuler v. UnitedStates, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted). However, factual allegations, even though assumed to be tr:ue·,.must still "be enough to raise a right to relief above the speculative level." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the court "neednot accept inferences drawn by plaintiffl] ifsuch inferences
are unsupported by the facts set out in the complaint. Normustthe court accept legal conclusions cast in the form offactual allegations." Kowalv. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). ANALYSIS TheUnited States now argues that the remanded counts fail to state a claim because ofvarious deficiencies that were not the basis ofthis Court's earlier dismissal.
3P. & A. in Supp. ofUnited States' Mot. to Dismiss Am. Compl. 3 [Dkt. #27]. I agree, and, therefore, the remaining counts ofplaintiffs complaint must be dismissed. 3 

### I. Plaintiff's Claims ThatAre Unrelated to Tax Collection Are NotActionable (Counts 19, 33, and 35). First, plaintiffs claims related to tax assessment (Counts 33 and 35) are not actionable under§ 7433.4 As our Circuit recently instructed, '"Section 7433 applies only to collection-related activities." 

### Kim, 632 F.3d at 716 (citing

### Miller v. UnitedStates, 66 F.3d 220, 222-23 (9th Cir. 1995)) ("[T]he assessment or tax determination part ofthe [Code enforcement] process is not an act of'collection' and therefore, not actionable under§ 7433.") (other citations omitted). However, Counts 33 and 35 ofthe amended complaint are entirely unrelated to tax collection. Specifically, Count 33 alleges a
3 Plaintiffscomplaint requests '"damages in accordance with section 7433, in an amount equal to the fine imposed in Internal Revenue Code section 7214(a) for each disregard with intent to defeat theprovisions thereof
...." Am. Compl. 18. To the extent that plaintiffs complaint asserts damages claims under 26 U.S.C. § 7214(a), those claims would still merit dismissal even ifthe remaining counts were not defective. Not only is§ 7214 unenforceable throughprivate civil actions, but§ 7433 is also the exclusive damages remedy for the IRS's unhiwful conduct "in connection with any collection ofFederal tax[es]." 26 U.S.C. § 7433(a); 

### seeAndrews v. Heaton, 483 F.3d I070, I076 (1Oth Cir. 2007); 

### Stewart v. UnitedStates, 578 F. Supp. 2d 30, 35-36 (D.D.C. 2008). Therefore, plaintiffs request for ,damages "equal to the fine imposed" in § 7214(a) must be dismissed. 4 Section 7433(a)provides: If, in connection with any collection ofFederal tax with respect to a taxpayer, any officer or employee ofthe [IRS] recklessly or intentionally, orby reason ofnegligence, disregards any provision ofthis title, or any regulation promulgated underthis title, 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). Itfurther provides in pertinentpart that "such civil action shall be the exclusive remedy for recovering damages resulting from such actions." 

### !d.
4violation of26 U.S.C. 6751(b) "by failing to verify that a supervisorhadpersonally approved, in writing, the initial penalty

### dete~m'ination," and Count 35 alleges that liens
were asserted withoutthe necessary assessments in accordance with 26 U.S.C. § 6203 and IRS regulations. 5 Am. Compl., Counts 33, 35. These counts cite issues with how the IRS recorded plaintiffs liability as related to penalties and liens. Accordingly, these counts relate only to tax

### assessment and not tax 

### collection. See Kim, 632 F.3d at 716. Therefore, Counts 33 and 35 are not actionable under§ 7433 and are dismissed. Similarly, plaintiffs' claim that the IRS "failedto develop and implement" procedures and review processes related to decisions to file liens and levies and to seize property must be dismissed. Am. Compl., Count 19. "[C]laims based on an alleged failure to promulgate regulations and procedures do not implicate § 7433'sprohibition against collection activity that disregards provisions of, orregulations under, the [Code]." 

### Spahr v. 

### UnitedStates, 501 F. Supp. 2d 92, 96 (D.D.C. 2007) (dismissing identical counts); 

### see also Scott v. UnitedStates, 608 F. Supp. 2d 73, 80 (D.D.C. 2009) (dismissing
an identical count). Therefore, Count 19 must also be dismissed.

5 Although Count 35 invokes 26 U.S.C. § 6322, which arguablyrelates to tax collection as it appears in Chapter 64 ofthe Code, titled "Collection," and connects the periods for tax liens to the dates when assessments arise, the substance ofthe claim is that the 

### assessments were defective, which I'ed to defective liens. Even ifthis claim could be construed as related to collection activity, then it should still be dismissed as untimely because plaintifffiled this action more than four years after he alleges the IRS filed a lien against him. 

### See infra Section II.

5II. Plaintiff's Lien-Related Claims Are Untimely (Counts 32, 35 and 39). Becauseplaintifffiled this action more than four years after the IRS publically recorded a tax lien againsthim, plaintiff's lien-related claims are untimely. Unfortunately for the plaintiff, section 7433 has a two-year statute oflimitations. 26 U.S.C. § 7433(d)(3) (directingthat§ 7433 suits "'may bebrought only within 2 years after the date the right ofaction accrues"). But, plaintiffdid not bring this suit alleging that his tax liens were deficient until more than four years afterhis claims accrued. Specifically, plaintiffhas allegedthat liens were asserted against him without adequate notice and demand (Count 32) and without the necessary assessments (Counts 35 and 396). But, plaintiffonly alleges that the IRS filed one tax lien against him aroundthe end ofApril of 2003. Am. Compl., Statementof**Facts~** 84. (statingthe lien was publically recorded

Count 39, alleging unlawful disclosure oftax return information, must also be dismissed because the IRS is permitted to disclose certain tax return information in connection with filing notices ofliens. Specifically, in Count 39, plaintiffalleges that his tax return informationwas "unlawfully disclosed" in violation of26 U.S.C. § 7213 "by filing notice(s) oflien(s) in stated amounts for whichnorecord ofassessment exists." Am. Compl., Count 39. Section 7213(a)prohibits federal employees from disclosing tax return information except as authorized in the Code. 26 U.SC. § 7213(a). The Code authorizes disclosure oftax return information in certain circumstances, including "'in connection with
... collection activity'' when necessary. 26 U.S.C. § 6103(k)(6). 

### See also 26 C.F.R. § 301.6103(k)(6)-1(a)(l)(vi) (permitting disclosure "to apply the provisions ofthe [Code] relatingto establishment ofliens against such assets, orlevy, seizure, or sale on or ofthe assets to satisfy any such liability");

### Boritz v. UnitedStates, 685 F. Supp. 2d 113, 127 (D.D.C. 2010). Althoughplaintiff's complaint states that no record ofassessment exists for the filed liens, plaintiff's own allegations indicate thatthe IRS made assessments againsthim and sent him multiple notices ofsuch assessments. 

### See, e.g., Am. Compl., Statement of**Facts~** 27. Therefore, any disclosures by filing notices ofliens would have been expressly authorized, and this count would be dismissed even ifit were not untimely.

6"[o]n or about April22, 2003").7 Any claims would have accrued atthattimewith the filing ofthe allegedly defective lien. However, plaintifffiled this action on November 26, 2007, more than four years afterthe lien was filed, and well past the two-year deadline under§ 7433(d)(3). Therefore, plaintiff's claims alleging issues related to this lien are untimely and must be dismissed. III. Plaintiff's Claims ThatAre Contradicted ByHis Own Factual Allegations Are Dismissed (Counts 27, 31, and 32). Becauseplaintiffhas directly contradicted certain ofhis claims with his factual allegations, those claims must be dismissed. 

### See Scottv. UnitedStates, 608 F. Supp. 2d 73, 80-81 (D.D.C. 2009). Specifically, plaintiffclaims that the IRS failed to provide notice and demand within 60 days ofmaking a tax assessment (Count 27), to hold an administrative hearing in conjunction with the filing ofa notice oftax lien (Count 31), and to provide notice and demand before asserting a tax lien (Count 32). 

### See Am. Compl., Counts 27, 31, 32 (asserting violations of26 U.S.C. §§ 6303, 6320, and 6321). Yet, in his own statement offacts, plaintiffalleges that the IRS sent him multiple notices8 demanding payment ofassessments, see, e.g., Am. Compl., Statement of**Facts~~** 27, 42- 43, 46, 48, 54, and granted him a collection'hearing, id.**~** 61. Therefore, plaintiff's factual allegations directly contradictthe claims in these counts. Accordingly, this Court does not needto accept as true the allegations in these counts and will dismiss those
7 Plaintiffdoes not reference any othertax liens filed againsthim. 

### See generally Am. Com pl., StatementofFacts. 8 These notices included fonn CP 504, "which constitute[s] notice and demand for payment within the meaning ofsection 6303(a)." 

### Scott, 608 F. Supp. 2d at 81 (citation and internal quotation marks omitted).
7counts for failure to state a claim. See Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) ("Normust we accept as true the complaint's factual allegations insofar as they contradict exhibits to the complaint
...."). 

### IV. PlaintiffHas Failed To Allege Facts Supporting His Harassment Claim (Count 30). Becauseplaintiffhas failed to provide sufficient factual allegations to showthat his harassment and abuse claims in Count 30 are plausible, those claims too mustbe dismissed. See BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In short, plaintiff has utterly failed to allege any facts from which this Court could inferthat IRS employees engaged in harassment, oppression, or abusive conduct. See Am. Compl., Count 30. Instead, plaintiff's extensive account ofhis interactions with the IRS amounts to little more than a recounting ofthe IRS's Sisyphean labors to respond to and collect taxes from an obdurate and captious individual. See generally Am. Compl., Statement of Facts; see also Spahr v. UnitedStates, 501 F. Supp. 2d 92, 97 (D.D.C. 2007) (dismissing harassment claim under§ 7433 whereplaintiffmade no allegations of"harassing, oppressive, or abusive" conduct such as threats ofviolence, use ofobscenity, or employment ofrepeated and inappropriate telephone calls). Accordingly, this claim is "simply too conclusory to survive defendant's motion to dismiss." Spahr, 501 F. Supp. 2d at 97; see also Twombly, 550 U.S. at 570.9

9 Count 19 is similarly defective. In Count 19, plaintiffclaims that the IRS has failed to implement various procedures in accordance with the Code; but nowhere in plaintiff's amended complaint or statement offacts does he plead any facts to support this claim. Even though this claim is not actionable under§ 7433, see supra Section I,
8CONCLUSION Forthe reasons noted above, the Court GRANTS the United States' Motion to Dismiss the Amended Complaint [Dkt. #27]. An appropriate Orderwill issue with this Memorandum Opinion.

United States District Judge

plaintiff's conclusory allegations are entirely unsupported and would still merit dismissal ifactionable.
9