United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on review of defendant United
States of America's Motion to Dismiss (Doc.
filed on October 11, 2017. Plaintiff filed a
“Preliminary Response to United States' Motion(s)
to Dismissal” (Doc. #53) on November 27, 2017. The
United States seeks to dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
12(b)(1) motions challenging the subject matter jurisdiction
of the court come in two forms, a “facial” attack
motion and a “factual” attack motion.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th
Cir. 2003). A facial attack challenges subject matter
jurisdiction based on the allegations in the complaint, and
the court takes the allegations in the complaint as true in
deciding the motion. Id. at 924 n.5. The complaint
may be dismissed for a facial lack of standing only “if
it is clear that no relief could be granted under any set of
facts that could be proved consistent with the
allegations.” Jackson v. Okaloosa County, 21
F.3d 1531, 1536 n.5 (11th Cir. 1994) (citation omitted).
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
22, 2017, plaintiff Michael Edward Bufkin (Bufkin) filed his
Original Complaint (Doc. #1) asserting that he is not a
taxpayer and remains a non-taxpayer, and that the Internal
Revenue Service has no documentation to support the assertion
that Bufkin “volunteered” to be a taxpayer.
(Id., ¶ 25.) Plaintiff alleges that defendants
Jacob J. Lew, Timothy F. Geithner, John Koskinen, Douglas
Shulman, Steven T. Miller, Daniel Werfel, William J. Wilkins,
and C.D. Bailey, acting jointly and severally, conspired to
obtain possession of Bufkin's funds from his Scottrade
accounts. Bufkin alleges that he made a demand for the return
of the property. (Id., ¶ 31.)
seeks $50, 000 for “Administrative sanctions”
against the IRS-related actors. Bufkin asserts a
Bivens claim against defendants. (Id.,
¶ 37.) Bufkin argues that defendants must have evidence
of plaintiff having volunteered to be a taxpayer before
taking property under the guise of tax collection.
(Id., ¶ 39.) Plaintiff alleges that he
confirmed through a FOIA request that the IRS has no
documents to support a finding that plaintiff volunteered to
be a taxpayer. Plaintiff argues that he has the right not to
contract with the IRS, and has renewed this right every year.
(Id., ¶ 40.)
also asserts a conspiracy to violate plaintiff's
“right not to contract”, the failure to prevent
the conspiracy, and the deliberate indifference of Wilkins
for failing to train Bailey, Lew, Geitner, Koskinen, Shulman,
Miller, and Werfel for each of the identified years between
2002 and 2007. (Id., ¶¶ 47, 56-57, 65-76.)
states that Calvin Byrd asserted that taxes were due for 2004
and 2005, and that plaintiff had a duty to file a return for
2012, 2013, 2014, and 2015, or be subject to an audit.
(Id., ¶83.) Plaintiff also seeks administrative
sanctions in the amount of $50, 000 against Byrd because his
position is substantially unjustified. (Id.
¶¶ 84-85.) Bufkin alleges a Bivens claim
against Byrd, and a conspiracy with Koskinen, Wilkins, with
Byrd. (Id., ¶¶ 87, 97.)
each year at issue, 2002 through 2007, plaintiff seeks $1
million in actual damages, and $1 million in punitive damages
for the confiscation of his property based on tax claims.
Alternatively, plaintiff seeks injunctive/mandamus relief
regarding his status as a non-taxpayer.
to the Complaint is a responsive letter to plaintiff's
Freedom of Information Act (FOIA) request dated February 12,
2014. (Doc. #1-1, Exh. P-3.) Also attached to the Complaint
are plaintiff's “demand” letters dated May
19, 2015, and February 11, 2016 as his “administrative
process” compliance. (Doc. #1-1, p. 3.) The first
letter is addressed to Lew, Koekinen, Wilkins, and Bailey to
“address all matters of immunity and administrative
process” and presents many of the claims incorporated
into the Complaint. (Doc. #1-1, Exh. DL-1.) The second letter
is addressed to Koskinen, Assistant Attorney General Ciraolo,
Wilkins, and Byrd in response to the “demands” of
Byrd in a letter dated May 14, 2015, and focuses on
plaintiff's disagreement with the label of taxpayer.
(Doc. #1-1, Exh. DL-2.)
preliminary matter, plaintiff's arguments that he is not
a taxpayer, that it has not been proven that he is a
taxpayer, and that he did not volunteer to pay taxes are
patently frivolous and have been rejected “by courts at
all levels of the judiciary, and, therefore, warrant no
further discussion.” Biermann v. C.I.R., 769
F.2d 707, 708 (11th Cir. 1985). Any request for injunctive or
declaratory relief regarding plaintiff's status as a
taxpayer will be dismissed without further discussion.
See also Stubbs v. Comm'r of I.R.S., 797 F.2d
936, 938 (11th Cir. 1986) (argument that wages were not
taxable income rejected as patently frivolous); Herriman