FILED

UNITED sTATEs DISTRICT CoURT APR 23 ZW*
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Thomas Edward Smith, Jr., )
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Plainriff, )

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United States of Amer1ca, )
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Defendant. )

MEMORANDUM OPINION

This matter is before the Court on plaintiffs pro se complaint and application to proceed
in forma pauperis. The Court will grant plaintiffs in forma pauperis application and will
dismiss the case for lack of subject matter jurisdiction. See Fed. R. Civ. P. l2(h)(3) (requiring
dismissal "at any time" jurisdiction is found wanting).

Plaintiff is a prisoner at the United States Penitentiary in Coleman, Florida, who claims
to be a District of Columbia resident. In this action against the United States, plaintiff seeks
"the recovery of taxes . . . erroneously assessed and collected" by the Internal Revenue Service.
Compl. jj 3. Plaintiff alleges that in August 201 l, he filed a tax return for calendar year 2010
"showing overpayment in the amount of [$25 million]." He "received an Assessment from the
Defendant dated February 6, 2012," which "alleged that Plaintiff had a prior tax liability of [$25
million]. So the [Department of Treasury] performed an administrative set-off to resolve the
alleged matter." Ia’. wl 5-7 & Ex. A. Plaintiff posits that since he "promptly disputed such
claim, owing any prior amount," the "entire amount [of $25 million] should be returned as it was

illegally or erroneously assessed and collected as a tax." Id. 11 8.
1

The United States is immune from suit absent a waiver by Congress, and such immunity
is jurisdictional. United States v. Mitchell, 463 U.S. 206, 212 (1983) ("lt is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction."). The IRS is subject to suit under the Taxpayer’s Bill of Rights,
26 U.S.C. § 7433, "only for claims related to the collection of income taxes and not for claims
related to the investigation or assessment of taxes." Gust v. US., 789 F. Supp. 2d 58, 62
(D.D.C. 201 l) (citing cases); see Spahr v. U.S., 501 F. Supp. 2d 92, 96 (D.D.C. 2007) ("Section
7433 does not give the Court jurisdiction over ‘[c]laims that the IRS has incorrectly determined
the amount of taxes owed’ or any other claims that do not directly arise from the IRS's collection
activities.") (quoting Buaiz v. Unz'ted States, 471 F. Supp. 2d 129, 136 (D.D.C. 2007)).
"[C]ourts have defined an assessment as a mere determination of tax liability which must
precede any collection action by the IRS," whereas a "claim for improper collection practices
alleges that the IRS did not follow prescribed methods of acquiring assets." Gust, 789 F. Supp.
2d at 62, n.l (citations and internal quotation marks omitted).

The dubious allegations notwithstanding, this action arises out of an alleged erroneous

tax assessment. lt therefore will be dismissed for want of jurisdiction. A separate Order

l[:li'za¢;‘/VY  ’

nited Stat s Distr ct Judgc

accompanies this Memorandum Opinion.

 

DATE: April/H' ,2014

