            10-4717-cv
            Zuckman v. Department of the Treasury


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1               At a stated term of the United States Court of Appeals
 2          for the Second Circuit, held at the Daniel Patrick Moynihan
 3          United States Courthouse, 500 Pearl Street, in the City of
 4          New York, on the 18th day of January, two thousand twelve.
 5
 6          PRESENT:
 7                   DENNIS JACOBS,
 8                        Chief Judge,
 9                   RICHARD C. WESLEY,
10                   SUSAN L. CARNEY,
11                        Circuit Judges.
12          ___________________________________________________
13
14          ADAM ZUCKMAN,
15
16                         Plaintiff-Appellant,
17
18                         v.                                                           10-4717-cv
19
20          DEPARTMENT OF THE TREASURY, INTERNAL
21          REVENUE SERVICE, UNITED STATES OF AMERICA,
22          TIMOTHY F. GEITHNER, Treasury Secretary,
23          LAWRENCE R. ENGLE, Revenue Officer,
24          COMMISSIONER OF INTERNAL REVENUE SERVICE,
25          MTA-NYCTA, HALLUM ABDELHACK, RICHARD DREYFUS,
26
                     Defendants-Appellees.
            ____________________________________________________
 1   FOR PLAINTIFF-APPELLANT:            Adam Zuckman, pro se,
 2                                       Brooklyn, NY.
 3
 4   FOR DEFENDANTS-APPELLEES
 5   Department of the Treasury,
 6   Internal Revenue Service,
 7   United States of America,
 8   Timothy F. Geithner, Treasury
 9   Secretary, Lawrence R. Engle,
10   Revenue Officer, Commissioner
11   of Internal Revenue Service:        Janet A. Bradley, Attorney,
12                                       Gilbert S. Rothenberg,
13                                       Acting Deputy Assistant
14                                       Attorney General, Bruce R.
15                                       Ellison, Attorney, Tax
16                                       Division, United States
17                                       Department of Justice,
18                                       Washington, D.C.
19
20   FOR DEFENDANTS-APPELLEES
21   MTA-NYCTA, Hallum Abdelhack,
22   Richard Dreyfus:                    Kristen M. Nolan, Attorney,
23                                       New York City Transit
24                                       Authority, Brooklyn, NY.
25
26
27        Appeal from a judgment of the United States District
28   Court for the Eastern District of New York (Garaufis, J.).
29
30
31       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

32   AND DECREED that the judgment of the district court be

33   AFFIRMED.

34       Plaintiff-Appellant Adam Zuckman appeals from a

35   judgment of the United States District Court for the Eastern

36   District of New York (Garaufis, J.), granting the motions of

37   defendants to dismiss his complaint challenging a levy

38   allegedly placed on his wages by the Internal Revenue

                                     2
 1   Service.   We assume the parties’ familiarity with the

 2   underlying facts, the procedural history of the case, and

 3   the issues on appeal.

 4       We review district court determinations on Rule

 5   12(b)(1) and 12(b)(6) motions to dismiss de novo.     See

 6   Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d

 7   Cir. 1997).   Dismissal for lack of subject matter

 8   jurisdiction under Rule 12(b)(1) is proper “when the

 9   district court lacks the statutory or constitutional power

10   to adjudicate it.”    Makarova v. United States, 201 F.3d 110,

11   113 (2d Cir. 2000).     “In ruling on a Rule 12(b)(6) motion,

12   we accept the allegations contained in the complaint as true

13   and draw all reasonable inferences in favor of the nonmoving

14   party.”    Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d

15   Cir. 2002).   To survive a Rule 12(b)(6) motion to dismiss,

16   the complaint must plead “enough facts to state a claim to

17   relief that is plausible on its face.”     Bell Atl. Corp. v.

18   Twombly, 550 U.S. 544, 570 (2007).     Additionally, because

19   Zuckman appears pro se, we are obligated to read his

20   submissions with “special solicitude,” interpreting them to

21   raise the “strongest arguments that they suggest.” See

22   Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75

23   (2d Cir. 2006) (internal quotation marks omitted).

                                     3
 1       Here, an independent review of the record and relevant

 2   case law reveals that the district court properly granted

 3   the defendants’ motions and dismissed Zuckman’s complaint.

 4   We therefore affirm for substantially the same reasons

 5   stated by the district court in its memorandum and order.

 6   Even liberally construing his pro se complaint, the claims

 7   raised by Zuckman do not satisfy the applicable pleading

 8   standards.   Contrary to Zuckman’s contentions, the federal

 9   income tax is constitutional, wages are taxable income, and

10   the Sixteenth Amendment removed the apportionment

11   requirement for direct taxes.       See, e.g., Ficalora v. Comm’r

12   of Internal Revenue, 751 F.2d 85, 87-88 (2d Cir. 1984).        To

13   the extent that Zuckman challenges the levy on his wages,

14   there is no indication that he exhausted his administrative

15   remedies.    Thus, the district court properly dismissed those

16   claims for lack of subject matter jurisdiction.       See 26

17   U.S.C. §§ 7422, 7429; see also Wapnick v. United States, 112

18   F.3d 74, 75 (2d Cir. 1997) (per curiam).

19       We have considered Zuckman’s remaining arguments and

20   conclude that they are without merit.

21

22

23

                                     4
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3
4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk

7




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