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                         it2b        5t,12ダ Court of∫ 2bOr,I CIュ iIIIメ

                                            No.19… 1234T
                                      (Filcd:August 28,2019)

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GORDON PEKRUL,
                       Plaintif鳥
                                                     Pro Se Plaintiff; Tax; Liens; Tax Court;
       V.                                            Garnishment; Jurisdiction; Sua Sponte
                                                     Dismissal
THE LINITED STATES,

                       Defendant.
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Gordon Pekrul Scottsdale, AZ,      plqje.

                                      OPINION AND ORDER

SWEENEY, Chief Judge

        This case arises out of p1s_g9 plaintiff Gordon Pekrul's complaint conceming liens filed
by the Internal Revenue Service ("IRS") and the related garnishments of his social security
payments. Specifically, Mr. Pekrul alleges that the IRS lacked jurisdiction to place the liens and
garnish his payments. The court, for the reasons discussed below, dismisses the complaint for
lack ofjurisdiction sua sponte.

                                        I. BACKGROUND
                             A. Statutory    and Regulatory Context

        A United States citizen or resident with gross income above a certain amount in a taxable
year is generally subject to tax and must file a tax return for that year. I.R.C. $ 6012(aX1)
(2012). The IRS has several tools at its disposal to collect unpaid taxes. There is an automatic
statutory lien on all real and personal property of a delinquent taxpayer in the amount of any
taxes that remain unpaid after the IRS issues a notice and demand for payment of such taxes. Id.
$ 6321. After establishing a tax lien, the IRS may then levy upon the delinquent taxpayer's
property (whether or not a public notice of such lien is filed) by seizing and selling property or
by garnishing wages. Id. $ 6331(a)-(b); see also Treas. Reg. $ 301.6331-1(aXl) (2018) ("Levy
may be made by serving a notice of levy on any person in possession of, or obligated with
respect to, property or rights to property subject to levy, including receivables, bank accounts,
evidences of debt, securities, and salaries, wages, commissions, or other compensation.").
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                  AU028 2019

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                                       B. Factual Historv

       Between September 2008 and November 2012, the IRS issued three Notices of Federal
Tax Lien against Mr. Pekrul to recover unpaid tax assessments and penalties related to tax years
2002 throu gh2007 .t On May 18, 2015, the Social Security Administration ("SSA") sent a letter
to Mr. Pekrul informing him that the SSA withheld $1090 from his monthly social security
payment to pay his debt to the IRS and would continue to do so each month until his debt was
satisfied.

        On May 31,2018, Mr. Pekrul filed a petition in the United States Tax Court ("Tax
Court") challenging the IRS's assessments of his taxes for tax years 2000 through2017.
Specifrcally, he asserted that he never received a Notice of Deficiency or a Notice of
Determination Concerning Collection Action for those years. The respondent in that case, the
Commissioner of Internal Revenue ("Commissioner"), moved to dismiss the petition on the basis
that the Tax Court lacked jurisdiction over the petition.2 Mr. Pekrul subsequently informed the
Tax Court that he did not object to the Commissioner's motion. The Tax Court granted the
unopposed motion on December 18, 2018, and dismissed the case for lack of jurisdiction.

        On August 19,2019, Mr. Pekrul frled his complaint in this court challenging the
propriety of the IRS collecting his assets. Relying on the Tax Court's order, he alleges that the
liens and related garnishments are improper because the IRS lacks jurisdiction to collect his
assets. He requests that the court award him 59,721,832.93 in damages; his damages reflect
what he states is the value of the liens ($9,682,592.93) and garnishments ($39,240.00).




         I
         The facts in this section are derived from the complaint (including attached exhibits),
and matters of which the court may take judicial notice pursuant to Rule 201 of the Federal Rules
of Evidence. See Rocky Mountain Helium. LLC v. United States, 841 F.3d 1320,1325-26 (Fed.
Cir.2016).
        2 The Commissioner argued in its motion that the Tax Court lacked jurisdiction over the
petition because (l) Mr. Pekrul failed to timely contest the IRS's deficiency determination with
respect to tax years 2002 through 2006; (2) the IRS did not issue to Mr. Pekrul a Notice of
Deficiency for tax years 2000,2001, and2007 through 2017; (3) the IRS did not issue to Mr.
Pekrul a Notice of Determination for tax years 2000 through 2017; and (a) Mr. Pekrul failed to
identify any other basis for jurisdiction. See I.R.C. $$ 6213(a) (requiring that a petitioner contest
a deficiency determination within ninety days after the notice of deficiency is mailed),
6330(dXl) (requiring that a petitioner contest the IRS's decision to levy within ninety days of the
Notice of Determination); see also Ghani v. Comm'r,354 F. App'x 333,334 (1Oth Cir. 2009)
("The Tax Court properly concluded that it lacked jurisdiction because fthe petitioner] was never
issued a Notice of Deficiency or a Notice of Determination.").
                                                  う乙
                                    II.   LEGAL STANDARDS

                                          A. Pro Se Plaintiffs

        Pro se pleadings are "held to less stringent standards than formal pleadings drafted by
lawyers" and are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89,94 (2007) (per
curiam) (internal quotation marks omitted). However, the 'oleniency afforded to a p1q-9e litigant
with respect to mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. United States, 75 Fed. C\.249,253 (2007); accord Henke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995) ("The fact that [the plaintiff] acted pro se in the drafting of his
complaint may explain its ambiguities, but it does not excuse its failures, if such there be."). In
other words, a ple_le plaintiff is not excused from his burden of proving, by a preponderance of
evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 179 (1936); Banks v. United States,74lF.3d1268,1277 (Fed. Cir. 2014).

                                  B. Subject Matter Jurisdiction
                                                                                          o'must
         In determining whether subject matter jurisdiction exists, the court generally
 accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable
 inferences in favor of the plaintiff." Trusted Integration. Inc. v. United States, 659 F.3d 1 159,
 1163 (Fed. Cir.2011). However, the court is not limited to the pleadings in considering subject
matter jurisdiction. Banks, 741 F.3d at I27l; Pucciariello v. United States, I 16 Fed. Cl. 390, 400
 (2014). Further, the court has no subject matter jurisdiction over frivolous claims. Moden v.
 UnitedStates,404F.3d1335, 1340-41 (Fed.Cir.2005). Forexample,thereisnosubjectmatter
jurisdiction over claims that are "so insubstantial, implausible, foreclosed by prior decisions . . . ,
 or otherwise completely devoid of merit as not to involve a federal controversy." Id. at 1341
 (internal quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25,33 (1992) ("l{l
 finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
 irrational or the wholly incredible . . . ."). The court may raise the issue of subject matter
jurisdiction at any time sua sponte. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If the
 court finds that it lacks subject matter jurisdiction over a claim, RCFC 12(hX3) requires the court
 to dismiss that claim.

                                           III.   ANALYSIS

        Mr. Pekrul asserts that the IRS is illegally collecting his assets. The Intemal Revenue
Code permits taxpayers to bring lawsuits when "any officer or employee of the [IRS] recklessly
or intentionally, or by reason of negligence, disregards any provision of fthe Intemal Revenue
Code], or any regulation promulgated fthereunder]" in connection with federal tax collection,
I.R.C. $ 7a33(a). However, such actions may only be brought in federal district court. Id. Since
the United States Court of Federal Claims ("Court of Federal Claims") is not a federal district
court, Ledford v. United States ,297 F .3d 1378, 1382 (Fed. Cir. 2002), Mr. Pekrul cannot
maintain his illegal collection claim here. Accord Russell v. United States, 78 Fed. Cl. 281,287
(2007).



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           Mr. Pekrul also implicitly invokes I.R.C. 5 7426 as a basis for this court's subject matter
jurisdiction. Under that section, a person whose property is wrongfully levied may bring an
action against the federal government to contest the levy. I.R.C. 5 7a26@)(l). However, such an
 action may only be brought in federal district court. Id. Therefore, the Court of Federal Claims
 lacks subject matter jurisdiction to entertain a wrongful levy action. Further, wrongful levy
                                                ooother
 actions may only be maintained by persons              than the person against whom is assessed the
tax out of which such levy arose," id., because a wrongful levy is a levy in which the IRS seizes
property that does not belong to the taxpayer, Cherbanaeff v. United States ,77 Fed. Cl. 490, 496
 (2007). Here, the IRS garnished Mr. Pekrul's social security payments to offset his own tax
 liabilities. Therefore, he lacks standing to bring a wrongful levy action, even in federal district
 court. Taxpayers who seek to recover funds that were gamished to satisfy their own tax
 liabilities, such as Mr. Pekrul, must file a tax refund claim rather than a wrongful levy claim'

        Mr. Pekrul fares no better if the court construes his complaint as containing a tax refund
claim. The Court of Federal Claims has jurisdiction over requests for tax refunds provided that
certain requirements are met. Ledford, 297 F.3d at 1382. Of particular import hete, a plaintiff s
"payment of the assessed taxes in full is a prerequisite to bringing a refund claim." Id. Mr.
Pekrul has not alleged that he paid the disputed taxes in full, and his explanation that the IRS has
not garnished the full amount of the liens also suggests that he has not paid the entirety of his
assessed taxes. Thus, the court lacks jurisdiction over any tax refund claim.

         Notwithstanding the jurisdictional defects apparent on the face of his complaint, Mr.
Pekrul's complaint must also fail because it is premised on a misunderstanding of the Tax
Court's decision. He asserts that the Tax Court held in its December 18, 2018 order that the IRS
 lacked jurisdiction (i.e., authority) to collect his assets. His characterization of the Tax Court's
decision is erroneous. The Tax Court was addressing whether Mr. Pekrul satisfied the
jurisdictional prerequisites to pursue his claims; the Tax Court did not, as he posits, hold that the
IRS's actions were improper.3 The Tax Court's dismissal of Mr. Pekrul's petition, therefore, has
no bearing on the IRS's authority to pursue collection of his assessed taxes through liens and
related garnishments.

                                        IV. CONCLUSION
        For the reasons explained above, the Court of Federal Claims lacks jurisdiction to
entertain the claims expressly or implicitly asserted by Mr. Pekrul. Accordingly, the court
DISMISSES Mr. Pekrul's complaint without prejudice. No costs. The clerk is directed to enter


        3 Mr. Pekrul is not alone in advancing this mistaken theory. The plaintiff in Wall v.
United States also argued that the Tax Court's dismissal order meant that the IRS lacked
authority to place or enforce its liens. 141 Fed. Cl. 585, 589-90 (2019). Another judge on this
court reached the same conclusion as the undersigned. Specifically, the judge in Wall held that
that the Tax Court's dismissal order stood for the proposition that "the Tax Court lacked
jurisdiction over plaintiff s petition, which was, at that time, pending before the Tax Court, not
that the IRS lacked the ability to place liens on plaintiff s assets." Id. at 597.


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judgmcnt accordingly.

       ITIS S0 0RDEⅢ ]D.




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