                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 SCOTT WHITTINGTON,                             )
                                                )
                       Plaintiff,               )
                                                )
               v.                               )     Civil Case No. 07-2135 (RJL)
                                                )
 UNITED STATES,                                 )
                                                )
                      Defendant.
                                            .,.,:,_
                               MEMORANDUM OPINION
                                 (June JL, 2012) [#27]

       Before the Court is the United States' motion to dismiss the remaining counts of

plaintiff Scott Whittington's amended complaint (Counts 19, 27, 30-33, 35, and 39)

alleging misconduct by the Internal Revenue Service ("IRS"). Plaintiff seeks damages

pursuant to the Taxpayer Bill of Rights ("TBOR''), 26 U.S.C. § 7433, and injunctive

relief under the Administrative Procedure Actf'APA"), 5 U.S.C. §§ 701 et seq., in

connection with alleged violations of the Internal Revenue Code (the "Code"). For the

following reasons, the Court GRANTS the United States' motion to dismiss.

                                     BACKGROUND

       Plaintiff's allegations are well known to this Court. Plaintiff filed this action in

November 2007 alleging IRS misconduct in 39 counts copied verbatim from a complaint

he had previously filed in 2006 and which this Court dismissed in February 2007. 1




       In plaintiff's 2006 suit, this Court granted the United States' motion to dismiss for
lack of subject matter jurisdiction on grounds that plaintiff failed to exhaust his
administrative remedies under 26 U.S.C:§ 7433(d)(l) and because plaintiff's other stated
Com pl. 4-20 [Dkt. # 1]. After the United States moved to dismiss plaintiffs complaint,

plaintiff moved to amend his complaint, which this Court allowed. Plaintiffthen

submitted a sixty-page "'Statement of Facts" appended to his complaint, recounting his

attempts to cease tax withholding, extensive correspondence with IRS and Department of

Treasury officials about his tax assessments and failure to file tax returns, his FOIA

requests, the IRS's efforts to collect past taxes owed and levy his assets, and an IRS
                                                                               2
administrative hearing plaintiff participated in related to his tax assessment. See

generally Am. Compl., Statement of Facts [Dkt. #14]. The United States again moved to

dismiss, and, on March 23, 2009, this Court granted that motion, dismissing certain

counts for lack of subject matter jurisdiction and other counts for failure to state a claim

under 26 U.S.C. § 7433 because plaintiff failed to allege administrative exhaustion.

Whittington v. United States, 607 F. Supp. 2d 43, 43-46 (D.D.C. 2009). On September

29, 2011, our Circuit affirmed in part and reversed in part that decision, remanding

certain counts because exhaustion is not a pleading requirement under§ 7433. J. &

Mem. 2 [Dkt. #26] (citing Kim v. United States, 632 F.3d 713, 718-19 (D.C. Cir. 2011)).

Then, on December 14, 2011, the United States filed the instant motion to dismiss those

remanded counts.




bases for jurisdiction were each either statutorily or otherwise precluded. Whittington v.
United States, No. 06-1591,2007 WL 495803, *'1-3 (D.D.C. Feb. 12, 2007).
2
       The Court treats plaintiffs Statement of Facts as incorporated into his complaint
for purposes of the United States' motion to dismiss. In re Cheney, 406 F.3d 723, 729
(D.C. Cir. 2005).


                                              2
                                STANDARD OF REVIEW

       The United States has moved to dismiss the remaining counts of plaintiffs

complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P.

12(b)(6). A court considering a motion to dismiss, however, may only consider "the facts

alleged in the complaint, any documents    eit~er   attached to or incorporated in the

complaint and matters ofwhich [the court] may take judicial notice." E.E.O.C. v. St.

Francis Xavier Parochial Sch., 117 F .3d 621, 624 (D.C. Cir. 1997). To survive a motion

to dismiss, a complaint must "plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6) motion, the court

construes the complaint in the plaintiffs favor and grants the plaintiff the benefit of all

inferences that can be derived from the facts alleged. Schuler v. United States, 617 F.2d

605, 608 (D.C. Cir. 1979) (internal quotation marks omitted). However, factual

allegations, even though assumed to be tr:ue·,.must still "be enough to raise a right to relief

above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Moreover, the court "need not accept inferences drawn by plaintiffl] if such inferences

are unsupported by the facts set out in the complaint. Nor must the court accept legal

conclusions cast in the form of factual allegations." Kowal v. MCI Commc 'ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994).

                                        ANALYSIS

       The United States now argues that the remanded counts fail to state a claim

because of various deficiencies that were not the basis ofthis Court's earlier dismissal.


                                              3
P. & A. in Supp. of United States' Mot. to Dismiss Am. Compl. 3 [Dkt. #27]. I agree,
                                                                                   3
and, therefore, the remaining counts of plaintiffs complaint must be dismissed.

    I. Plaintiff's Claims That Are Unrelated to Tax Collection Are Not Actionable
          (Counts 19, 33, and 35).

       First, plaintiffs claims related to tax assessment (Counts 33 and 35) are not

actionable under§ 7433. 4 As our Circuit recently instructed, '"Section 7433 applies only

to collection-related activities." Kim, 632 F .3d at 716 (citing Miller v. United States, 66

F.3d 220, 222-23 (9th Cir. 1995)) ("[T]he assessment or tax determination part of the

[Code enforcement] process is not an act of 'collection' and therefore, not actionable

under§ 7433.") (other citations omitted). However, Counts 33 and 35 of the amended

complaint are entirely unrelated to tax collection. Specifically, Count 33 alleges a

3
        Plaintiffs complaint requests '"damages in accordance with section 7433, in an
amount equal to the fine imposed in Internal Revenue Code section 7214( a) for each
disregard with intent to defeat the provisions thereof .... " Am. Compl. 18. To the
extent that plaintiffs complaint asserts damages claims under 26 U.S.C. § 7214(a), those
claims would still merit dismissal even if the remaining counts were not defective. Not
only is§ 7214 unenforceable through private civil actions, but§ 7433 is also the
exclusive damages remedy for the IRS's unhiwful conduct "in connection with any
collection of Federal tax[es]." 26 U.S.C. § 7433(a); see Andrews v. Heaton, 483 F.3d
I 070, I 076 (1Oth Cir. 2007); Stewart v. United States, 578 F. Supp. 2d 30, 35-36 (D.D.C.
2008). Therefore, plaintiffs request for ,damages "equal to the fine imposed" in §
7214(a) must be dismissed.
4
       Section 7433(a) provides:
       If, in connection with any collection of Federal tax with respect to a
       taxpayer, any officer or employee of the [IRS] recklessly or intentionally,
       or by reason of negligence, disregards any provision of this title, or any
       regulation promulgated under this title, such taxpayer may bring a civil
       action for damages against the United States in a district court of the United
       States.
26 U.S.C. § 7433(a). It further provides in pertinent part that "such civil action shall be
the exclusive remedy for recovering damages resulting from such actions." !d.


                                              4
violation of26 U.S.C. 6751(b) "by failing to verify that a supervisor had personally

approved, in writing, the initial penalty dete~m'ination," and Count 35 alleges that liens

were asserted without the necessary assessments in accordance with 26 U.S.C. § 6203
                       5
and IRS regulations.       Am. Compl., Counts 33, 35. These counts cite issues with how

the IRS recorded plaintiffs liability as related to penalties and liens. Accordingly, these

counts relate only to tax assessment and not tax collection. See Kim, 632 F.3d at 716.

Therefore, Counts 33 and 35 are not actionable under§ 7433 and are dismissed.

       Similarly, plaintiffs' claim that the IRS "failed to develop and implement"

procedures and review processes related to decisions to file liens and levies and to seize

property must be dismissed. Am. Compl., Count 19. "[C]laims based on an alleged

failure to promulgate regulations and procedures do not implicate § 7433 's prohibition

against collection activity that disregards provisions of, or regulations under, the [Code]."

Spahr v. United States, 501 F. Supp. 2d 92, 96 (D.D.C. 2007) (dismissing identical

counts); see also Scott v. United States, 608 F. Supp. 2d 73, 80 (D.D.C. 2009) (dismissing

an identical count). Therefore, Count 19 must also be dismissed.




5
       Although Count 35 invokes 26 U.S.C. § 6322, which arguably relates to tax
collection as it appears in Chapter 64 of the Code, titled "Collection," and connects the
periods for tax liens to the dates when assessments arise, the substance of the claim is that
the assessments were defective, which I'ed to defective liens. Even if this claim could be
construed as related to collection activity, then it should still be dismissed as untimely
because plaintiff filed this action more than four years after he alleges the IRS filed a lien
against him. See infra Section II.



                                              5
II.    Plaintiff's Lien-Related Claims Are Untimely (Counts 32, 35 and 39).

       Because plaintiff filed this action more than four years after the IRS publically

recorded a tax lien against him, plaintiff's lien-related claims are untimely.

Unfortunately for the plaintiff, section 7433 has a two-year statute of limitations. 26

U.S.C. § 7433(d)(3) (directing that§ 7433 suits "'may be brought only within 2 years after

the date the right of action accrues"). But, plaintiff did not bring this suit alleging that his

tax liens were deficient until more than four years after his claims accrued. Specifically,

plaintiff has alleged that liens were asserted against him without adequate notice and
                                                                                   6
demand (Count 32) and without the necessary assessments (Counts 35 and 39              ).   But,

plaintiff only alleges that the IRS filed one tax lien against him around the end of April of

2003. Am. Compl., Statement of Facts~ 84. (stating the lien was publically recorded




        Count 39, alleging unlawful disclosure of tax return information, must also be
dismissed because the IRS is permitted to disclose certain tax return information in
connection with filing notices of liens. Specifically, in Count 39, plaintiff alleges that his
tax return information was "unlawfully disclosed" in violation of26 U.S.C. § 7213 "by
filing notice(s) oflien(s) in stated amounts for which no record of assessment exists."
Am. Compl., Count 39. Section 7213(a) prohibits federal employees from disclosing tax
return information except as authorized in the Code. 26 U.SC. § 7213(a). The Code
authorizes disclosure of tax return information in certain circumstances, including "'in
connection with ... collection activity'' when necessary. 26 U.S.C. § 6103(k)(6). See
also 26 C.F.R. § 301.6103(k)(6)-1(a)(l)(vi) (permitting disclosure "to apply the
provisions of the [Code] relating to establishment of liens against such assets, or levy,
seizure, or sale on or of the assets to satisfy any such liability"); Boritz v. United States,
685 F. Supp. 2d 113, 127 (D.D.C. 201 0). Although plaintiff's complaint states that no
record of assessment exists for the filed liens, plaintiff's own allegations indicate that the
IRS made assessments against him and sent him multiple notices of such assessments.
See, e.g., Am. Compl., Statement of Facts~ 27. Therefore, any disclosures by filing
notices of liens would have been expressly authorized, and this count would be dismissed
even if it were not untimely.



                                               6
"[o]n or about April22, 2003"). 7 Any claims would have accrued at that time with the

filing of the allegedly defective lien. However, plaintiff filed this action on November

26, 2007, more than four years after the lien was filed, and well past the two-year

deadline under§ 7433(d)(3). Therefore, plaintiff's claims alleging issues related to this

lien are untimely and must be dismissed.

III.  Plaintiff's Claims That Are Contradicted By His Own Factual Allegations
Are Dismissed (Counts 27, 31, and 32).

       Because plaintiff has directly contradicted certain of his claims with his factual

allegations, those claims must be dismissed. See Scott v. United States, 608 F. Supp. 2d

73, 80-81 (D.D.C. 2009). Specifically, plaintiff claims that the IRS failed to provide

notice and demand within 60 days of making a tax assessment (Count 27), to hold an

administrative hearing in conjunction with the filing of a notice of tax lien (Count 31 ),

and to provide notice and demand before asserting a tax lien (Count 32). See Am.

Compl., Counts 27, 31, 32 (asserting violations of 26 U.S.C. §§ 6303, 6320, and 6321 ).

Yet, in his own statement of facts, plaintiff alleges that the IRS sent him multiple notices 8

demanding payment of assessments, see, e.g., Am. Com pl., Statement of Facts~~ 27, 42-

43, 46, 48, 54, and granted him a collection 'hearing, id.   ~   61. Therefore, plaintiff's

factual allegations directly contradict the claims in these counts. Accordingly, this Court

does not need to accept as true the allegations in these counts and will dismiss those

7
     Plaintiff does not reference any other tax liens filed against him. See generally
Am. Compl., Statement of Facts.
8
       These notices included fonn CP 504, "which constitute[ s] notice and demand for
payment within the meaning of section 6303(a)." Scott, 608 F. Supp. 2d at 81 (citation
and internal quotation marks omitted).


                                              7
    counts for failure to state a claim. See Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir.

2004) ("Nor must we accept as true the complaint's factual allegations insofar as they

contradict exhibits to the complaint .... ").

IV. Plaintiff Has Failed To Allege Facts Supporting His Harassment Claim
(Count 30).

          Because plaintiff has failed to provide sufficient factual allegations to show that

his harassment and abuse claims in Count 30 are plausible, those claims too must be

dismissed. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In short, plaintiff

has utterly failed to allege any facts from which this Court could infer that IRS

employees engaged in harassment, oppression, or abusive conduct. See Am. Compl.,

Count 30. Instead, plaintiff's extensive account of his interactions with the IRS amounts

to little more than a recounting of the IRS's Sisyphean labors to respond to and collect

taxes from an obdurate and captious individual. See generally Am. Compl., Statement of

Facts; see also Spahr v. United States, 501 F. Supp. 2d 92, 97 (D.D.C. 2007) (dismissing

harassment claim under§ 7433 where plaintiff made no allegations of"harassing,

oppressive, or abusive" conduct such as threats of violence, use of obscenity, or

employment of repeated and inappropriate telephone calls). Accordingly, this claim is

"simply too conclusory to survive defendant's motion to dismiss." Spahr, 501 F. Supp.

2d at 97; see also Twombly, 550 U.S. at 570. 9



9
        Count 19 is similarly defective. In Count 19, plaintiff claims that the IRS has
failed to implement various procedures in accordance with the Code; but nowhere in
plaintiff's amended complaint or statement of facts does he plead any facts to support this
claim. Even though this claim is not actionable under§ 7433, see supra Section I,


                                                8
                                     CONCLUSION

       For the reasons noted above, the Court GRANTS the United States' Motion to

Dismiss the Amended Complaint [Dkt. #27]. An appropriate Order will issue with this

Memorandum Opinion.




                                                 United States District Judge




plaintiff's conclusory allegations are entirely unsupported and would still merit dismissal
if actionable.


                                             9
