     Case: 11-40273     Document: 00511696633         Page: 1     Date Filed: 12/15/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        December 15, 2011

                                       No. 11-40273                        Lyle W. Cayce
                                                                                Clerk

DON JOHNSON MOTORS, INCORPORATED,

                                                  Plaintiff – Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:06-CV-47


Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
        Plaintiff–Appellant Don Johnson Motors, Inc. (“Taxpayer”) brought suit
against the government, challenging several actions undertaken by the Internal
Revenue Service to collect on Taxpayer’s liabilities. After partial summary
judgment and a bench trial on the remaining claims, the district court largely
denied relief. We affirm the district court’s judgment for essentially the same
reasons stated in its careful and well-reasoned Memorandum Opinion and Order



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40273       Document: 00511696633         Page: 2     Date Filed: 12/15/2011



                                       No. 11-40273

dated December 21, 2007, and its Order on attorney’s fees dated March 14, 2008.
We conclude as follows:
       1. The district court correctly determined that Taxpayer is not entitled to
damages under 26 U.S.C. § 7432(b), as Taxpayer did not demonstrate that the
Internal Revenue Service’s failure to release the lien on its 2003-2004 tax
liabilities was the “but for” cause of its damages. The district court properly
reasoned that the lien on Taxpayer’s 1999-2002 liabilities remained in existence
even after the 2003-2004 lien should have been released, and there was no
evidence that any damages Taxpayer incurred could be attributed specifically
to the 2003-2004 lien, as opposed to the 1999-2002 lien. See, e.g., Info. Res., Inc.
v. United States, 996 F.2d 780 (5th Cir. 1993); Kachougian v. United States, No.
CIV A 96-508T, 1998 WL 718247 (D.R.I. Sept. 1, 1998).
       2. The district court correctly determined that Taxpayer is not entitled to
attorney’s fees, as it did not prevail with respect to the “most significant issue
or set of issues presented.” 26 U.S.C. § 7430(c)(4)(A)(i)(II); 26 C.F.R. § 301.7430-
5(e). We agree with the district court that the most significant issues in this
action were whether liens were improperly filed and whether Taxpayer could
receive damages for any such improperly filed liens. Taxpayer prevailed on
neither issue, and therefore is not entitled to attorney’s fees.
       3. The district court correctly determined that the IRS properly issued the
notice of intent to levy and the notice of tax lien with respect to Taxpayer’s 1999-
2002 tax liabilities under 26 U.S.C. §§ 6321 and 6331, as clear evidence
demonstrates that Taxpayer received the required notice and demand well in
advance of the filing of the levy notice and lien at issue.1 Further, no authority




       1
        Even if, as Taxpayer argues, the district court erred in stating that the IRS was not
required to send a demand before filing a lien, the district court properly concluded that all
statutory notices under Section 6321 were sent and received by Taxpayer.

                                              2
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                                  No. 11-40273

requires the IRS to postpone filing liens while an appeal is pending, or to reissue
demands for payment after exhaustion of Collection Due Process appeals.
      4. The district court properly dismissed Taxpayer’s unauthorized collection
action claim under 26 U.S.C. § 7433 because Taxpayer did not exhaust
administrative remedies prior to filing suit, as required by Section 7433(d)(1) of
the Internal Revenue Code. See 26 C.F.R. § 301.7433-1(e); Venen v. United
States, 38 F.3d 100 (3d Cir. 1994).
      AFFIRMED.




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