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Bufkin v. Scottrade, Inc.

United States District Court, M.D. Florida, Fort Myers Division

December 21, 2017

SCOTTRADE, INCORPORATED, JACOB J. LEW, Secretary, the Department of the Treasury, TIMOTHY F. GEITHNER, Secretary, the Department of the Treasury, JOHN KOSKINEN, Commr, Internal Revenue Service, DOUGLAS SHULMAN, Commr, Internal Revenue Service, STEVEN T. MILLER, Acting Commr, Internal Revenue Service, DANIEL WERFEL, Acting Commr, Internal Revenue Service, WILLIAM J. WILKINS, Chief Counsel, Internal Revenue Service, C.D. BAILEY, Revenue Officer, Internal Revenue Service, CALVIN BYRD, Revenue Officer, Internal Revenue Service, and UNITED STATES OF AMERICA, Defendants.



         This matter comes before the Court on review of defendant United States of America's Motion to Dismiss (Doc. #26)[1] 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).


         Rule 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).

         In 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 omitted).


         On May 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.)

         Bufkin 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.)

         Plaintiff 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.)

         Bufkin 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.)

         For 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.

         Attached 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.)


         As a 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 v. ...

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