Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parsons v. The Commissioner of Internal Revenue Service

United States District Court, M.D. Florida, Jacksonville Division

December 20, 2019

KENNETH R. PARSONS, Plaintiff,
v.
THE COMMISSIONER OF THE INTERNAL REVENUE SERVICE, et al., Defendants.

          ORDER

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE

         Pro se plaintiff filed this suit against the Commissioner of the Internal Revenue Service and four unknown individual employees of the IRS seeking monetary damages in an amount of at least $1, 000, 000.00, declaratory and injunctive relief. See Doc. 1. On October 18, 2019, the Commissioner filed a motion to dismiss, which it served on plaintiff by U.S. mail. See Doc. 4. On November 19, 2019, when plaintiff had failed to timely respond to the motion, the Court issued an Order sua sponte giving him an extension until December 9, 2019 to respond, and warning him that his failure to respond would result in the Court treating the motion to dismiss as unopposed, which could result in the dismissal of his case. See Doc. 5. The Clerk mailed a copy of this Order to plaintiff. Plaintiff failed to file anything in response and the Court therefore treats the Commissioner's motion to dismiss as unopposed.[1]

         Federal courts are courts of limited jurisdiction, and in accordance with Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss claims over which it has no subject matter jurisdiction. The Court has no subject matter jurisdiction to issue any declaratory or injunctive relief for the purpose of restraining the assessment or collection of taxes and those claims are therefore dismissed without prejudice.[2] See 26 U.S.C. § 7421; Hempel v. United States, 14 F.3d 572, 573 (11th Cir. 1994); Taliaferro v. Freeman, 595 Fed.Appx. 961, 962 (11th Cir. 2014).

         Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal if it fails to state a claim. In making this evaluation, the Court accepts all of plaintiff's allegations as true, construing them in the light most favorable to the plaintiff. Lopez v. Target Corp., 676 F.3d 1230, 1232 (11th Cir. 2012). Plaintiff seeks to assert constitutional and tort claims for damages which, in other circumstances, might be available under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. § 1346. However, the exclusive remedy for tax collection activity is set forth in 26 U.S.C. § 7433.[3] See Al-Sharif v. United States, 296 Fed.Appx. 740, 741-42 (11th Cir. 2008). Plaintiff has failed to plead allegations to bring his claims within the relief that may be accorded by 26 U.S.C. § 7433, and even if he had, he has failed to demonstrate that he first complied with and exhausted the statutory administrative prerequisites to bring such a claim. See Galvez v. IRS, 448 Fed.Appx. 880, 886 (11th Cir. 2011). Plaintiff's damages claims are therefore due to be dismissed without prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).[4]

         Accordingly, it is hereby

         ORDERED:

         1. The Commissioner's Motion to Dismiss (Doc. 4), which the Court treats as unopposed, is GRANTED.

         2. Plaintiffs claims for declaratory and injunctive relief are dismissed without prejudice for lack of subject matter jurisdiction under Rule 12(b)(1), and plaintiffs claims for damages are dismissed without prejudice under Rule 12(b)(6) for failure to state a claim.

         3. The Clerk shall close the file.

---------

Notes:

[1]Although plaintiff's complaint states he is suing the four IRS employees in their individual capacities (see Doc. 1 at ¶¶ 4-7), there are no allegations to support that and the Court therefore treats his claims as being against them in their official capacities. The arguments raised in the Commissioner's motion to dismiss apply to them as well.

[2]While there are some statutory exceptions, plaintiff has not argued for any of them, and there are no allegations on the face of his complaint which suggest any might apply. See 26 U.S.C. § 7421.

[3]Here too, plaintiff has not argued that any exceptions apply and there are no allegations on the face of his complaint ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.