                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2005

Tecchio v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2532




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                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 04-2532
                               ________________

                          VINCENT GERARD TECCHIO,
                                       Appellant

                                           v.

                        UNITED STATES OF AMERICA;
                       LINDA MEOLA; MRS. E. YOUNG;
                              MR. RODRIGUES;
                           ANNETTE BRINKMEIER;
                       JOHN/JANE DOES NUMBERS 1-10
                   ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civ. No. 03-cv-01529)
                  District Judge: Honorable Stanley R. Chesler
                 _______________________________________


                   Submitted Under Third Circuit LAR 34.1(a)
                              AUGUST 8, 2005

           Before: ROTH, MCKEE AND ALDISERT, Circuit Judges.

                            (Filed November 3, 2005)


                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    Vincent Gerard Tecchio appeals from the order of the District Court granting the
Defendants’ motion to dismiss and denying his motion for summary judgment. He also

appeals from the denial of several post-judgment motions. For the reasons discussed

below, we will affirm.

       Tecchio’s second amended complaint1 alleges that several Internal Revenue

Service (“IRS”) employees exceeded their authority when they created a substitute 1040

tax return and then demanded payment for tax liability based thereon. Tecchio claims the

IRS and its employees violated his Constitutional rights to due process, equal protection,

and privacy and that he suffered emotional distress. He seeks to prohibit the IRS from

using the “created records;” he also requests damages, including punitive damages.

       The Defendants filed a motion to dismiss, which was granted by order entered on

January 26, 2004. On February 5, 2004, Tecchio filed a motion to alter or amend the

judgment pursuant to Fed. R. Civ. P. 59(e). Shortly thereafter, he filed another post-

judgment motion citing newly discovered evidence, which the District Court properly

treated as filed pursuant to Fed. R. Civ. P. 60(b). Both motions were denied. Tecchio

filed two motions seeking to alter or amend those orders; both motions were denied.

Tecchio then filed this appeal.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We can affirm “a



   1
     Tecchio’s original complaint was filed in April 2003; he amended the complaint
once as of right, prior to the filing of a responsive pleading. Shortly thereafter, the United
States filed a motion to dismiss, which the District Court granted without prejudice to
Tecchio’s filing a second amended complaint. Tecchio filed the second amended
complaint in October 2003.

                                              2
result reached by the district court on different reasons, as long as the record supports the

judgment.” Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983)

(citations omitted).

        We first review the District Court’s order granting the Defendants’ motion to

dismiss.2 See Fed. R. App. P. 4(a)(4)(A). An order granting a motion to dismiss is

subject to plenary review. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We will

affirm a dismissal for failure to state a claim if we can “‘say with assurance that under the

allegations of the pro se complaint, which we hold to less stringent standards than formal

pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief.’” McDowell v. Del.

State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519,

520-21 (1972)).

        Tecchio is seeking to enjoin the United States from using a substitute 1040 return

to impose tax liability. The Anti-Injunction Act, 26 U.S.C. § 7421(a), states that with

limited exceptions,3 “no suit for the purpose of restraining the assessment or collection of

any tax shall be maintained in any court by any person, whether or not such person is the

person against whom such tax was assessed.” The purpose of the Act is to permit the




   2
    Tecchio’s first post-judgment motion tolled the time to file a notice of appeal,
because the motion was filed within the 10-day period prescribed by Rule 59(e). See Fed.
R. App. P. 4(a)(4)(A)(iv).
   3
       Tecchio does not allege that these exceptions apply.

                                              3
government to assess and collect taxes it determines to be owed, without judicial

intervention. See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7

(1962). Section 7421 applies not only the assessment and collection of the actual tax, but

to activities relating to the assessment or collection of taxes. See Linn v. Chivatero, 714

F.2d 1278, 1282 (5th Cir. 1983). Tecchio claims that § 7421 does not apply because he

was not seeking relief based on the tax assessment but on the use of a substitute return

that was created without authorization. This, however, is a distinction without a

difference. The use of the “created” return directly relates to the tax assessment and is

certainly an activity that resulted in the imposition of the tax liability.

       Tecchio also seeks to recover damages pursuant to 26 U.S.C. § 7433. He fails to

allege any conduct that falls within § 7433(a); the Defendants were statutorily authorized,

pursuant to 26 U.S.C. § 6020(b), to prepare a substitute return. Furthermore, § 7433(d)

requires the taxpayer to exhaust administrative remedies before a judgment for damages

can be awarded; Tecchio failed to provide any evidence that he exhausted these remedies.

       We review an order denying a motion to alter or amend a judgment filed pursuant

to Fed. R. Civ. P. 59(e) for abuse of discretion. Adams v. Gould Inc., 739 F.2d 858, 864

(3d Cir. 1984). The denial of a Rule 60(b) motion also is reviewed for abuse of

discretion. Reform Party of Allegheny County v. Allegheny County Dept. of Elections,

174 F.3d 305, 311 (3d Cir. 1999).

       Upon careful review of the record, we have concluded that the District Court did



                                                4
not abuse its discretion in denying Tecchio’s post-judgment motions. 4 Tecchio failed to

provide the District Court any basis for granting relief under the Rules of Civil Procedure.

       For the foregoing reasons, we will affirm the District Court’s orders granting the

Defendants’ motion to dismiss and denying Tecchio’s motions for relief pursuant to Rules

59(e) and 60(b).




   4
      Tecchio filed four post-judgment motions in this matter. The first motion, filed on
February 5, 2004, was timely filed pursuant to Rule 59(e) and tolled the time to appeal the
final order. The second, filed on March 10, 2004, was properly treated as filed pursuant
to Rule 60(b). The third, filed on April 2, 2004, sought reconsideration of the order that
denied the first motion; although the motion did not toll the time to appeal that order, see
Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984), the notice of appeal nevertheless was
timely as to the order denying relief under Rule 59(e) because it was filed within sixty
days after entry of that order. The fourth, filed on April 8, 2004, was a timely motion to
alter or amend the order that denied Rule 60(b) relief.


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