Simmons v. United States

Ed? h[ f, F I!

!{rrr"E;u'ru

llntl:,e@nittD $itstts @ourt of felersl @tsims

No. 15-14827 FILED

(Filed: June 27,2016)

JUN 2 i 2016

:t ** :i ** :f * 1. ** {. :t *,1. :t * {. * * * * * * * * * * * :1. :i t*****

U.S, COURT OF

JOHN W. SIMMONS, FEDERAL CI-AIMS

Plaintiff, Tucker Act; 28 U.S.C $ 1491; Pro Se

Plaintiff: Motion to Dismiss; RCFC

12(bX1); Tax Retund Claim; Full

Payment Rule; Wrongful Lery Claim;

THE TINITED STATES, 26U.5.C. Q 7426

Defendant.

*** *' :* 1. ***** :t * *'1. *'+ ******** *'1. *** 1. *'1. ** :1. *

John W. Simmons, Philadelphia, PA, prS-Sg.

Blaine G. Saito, United States Department of Justice, Washinglon, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Before the court is defendant's motion to dismiss the complaint, filed pursuant to Rule

12(bX1) of the Rules of the United States Court of Federal Claims C'RCFC)' Although not

specifically pled as such, the p1q5e plaintiff in this case appears to seek a federal income tax

refund as a result ofthe Intemal Revenue Service's ("lRS") denial of claimed deductions for (1)

ordinary and necessary business expenses, (2) expenses related to continuing medical education,

and (3) charitable contributions. For the reasons stated below, the court grants defendant's

motion for lack of subject matter jurisdiction.

I, BACKGROUND

On December 7,2015, plaintiff John W. Simmons, M'D., a "Disability Physician

Specialist II for the [Pennsylvania Department ofLabor and Industry] and Social security

Administration,"' filed his complaint in this court seeking a federal income tax refund.2 Compl.

1 . The complaint consists of three IRS "Request for Appeals Review" forms bearing plaintiff s

handwritten nanative disputing the IRS's determinations for tax years 2009, 2012, and 2013.r Id.

at I, 3, 5. Attached to each of these forms is a corresponding 'Notice of intent to seize ("leq"')

your state tax refund or other property" ("Lely Notice"),4 all of which are dated November 9,

2015. Id.at2,4,6. TheLerryNoticesseek(1)$33,905.92fortaxyear2009;(2)$14,051.78for

tax yeer 2012; and (3) $19,261.68 fortaxyear20l3. Id. Although plaintiff s handwritten claims

are difficult to read, it appears that his objections relate to the IRS's denial of claimed deductions

for ordinary and necessary business expenses, for expenses related to continuing medical

education, and for charitable contributions. Id. at I , 3. In addition, plaintiff claims the IRS ened

by considering a "False 1099" form, which pertains to income received from stocks and bonds,

submitted for tax year 2009. Id. at 5. According to plaintiff, he has "never been involved with

stocks & bonds." Id.

The genesis of plaintiff s dispute with the IRS occuned in June 2014, when, according to

'

plaintiff, he appeared for an IRS audit of his 2013 tax retum' Pl.'s Resp. I As a result of the

IRS's review ofthat retum, the IRS expanded the scope of its audit to include tax years 2009 and

2012. See Def.'s Ex. A2-3, A5-6, A8-9. The expanded audit revealed that plaintiff failed to file

a retum for tax year 2009. Id. at A2-3. As a result, the IRS prepared a "Substitute for Retum"

form on December 15, 2014. ld. at A2. The following year, on October 19' 2015, the IRS

assessed additional tax, interest, and penalties totaling $65,213.45. Id. According to the IRS's

"Certificate of Assessments, Payments and Other Specified Matters" ("Certificate of

Assessments and Payments") form, also referred to as a "transcript" or "Form 4340,"5 issued for

'Plaintiff describes his occupation as "a Disability Specialist Physician II for the

Pennsylvania Department of Labor and Industry, Bureau of Disability Determination" in his

April 12,2016 response to defendant's motion to dismiss. Pl.'s Resp. 1.

2 The facts are derived from the complaint ("Compl.") and the exhibits appended to

defendant's motion to dismiss ("Def.'s Ex.").

' An IRS "Request for Appeals Review" form is identified as "Form 12203'" Compl. 1,

a Each Ler,y Notice is identifred as "Notice CP504.' Compl.2, 4,6.

r "The IRS's administrative files . . . are presumed to be true, accurate' and conect "

Hanis v. United States,44 Fed. C\.678,682 (1999) (internal citations omitted); accord Dallin ex

rel. Esrare of Young v. united states,62Fed. cl. 589, 600 (2004) ("It is well established that a

certified copy of the taxpayer's Form 4340 triggers the presumption ofconectness in favor ofthe

govemment . . . ." (intemal citations and quotation marks omitted)); Perez v. United States, 312

F.3d 191, 195 (5th Cir.2002) ("lRS Form 4340 constitutes valid evidence ofa taxpayer's

assessed liabilities and the IRS's notice thereof."). Furthermore, "this court and others have

a

tax year 2009, plaintiffs account status reflected a balance due of$33,847.45. Id. at .{3.

On April 15,2013, plaintifffited an income tax retum for tax year 2012. Id'atA5 The

IRS's examination of the 2012 return resulted in its assessment, on October 19,2015,of

additional tax, interest, and penalties totaling $14,027.55. Id. On November 9, 2015, the IRS

issued a Lerry Notice. !!.; Compl. 4. According to the corresponding Certificate of Assessments

and Payments issued for tax year 2012, plaintiff s account had a balance due of $ | 3,323.47.

Def.'s Ex. .46.

One year later, on April 15,2014, plaintiff filed an income tax retum for tax year2013.

Id. at A8. On October 19,2015,the IRS assessed additional tax, interest, and penalties totaling

919,228.46. Id. On November 9,2015, the IRS issued a Lery Notice. Id. According to the

corresponding Certificate of Assessments and Payments issued for the tax year 2013, plaintiff s

account had a balance due of $19,228.46. Id.atA9.

On February 5, 2016, defendant filed a motion to dismiss the complaint for lack of

jurisdiction. In his response, filed on April 12,2016, plaintiff describes the June 2014 audit and

expresses his frustration at not being able to arrange a face-to-face meeting with an IRS

supervrsor:

I appeared for an audit ofmy 2013 tax retum in June 2014

. . . . After an intense review by [the IRS, the IRS extended its] tax

review [ofl previous years 2009,2012. [The IRS] noticed that the

U.S. Treasury owed me money from 2007 ,2008 lery, lien and

salary.

I requested a meeting to discuss [the IRS's] findings . . . at

the Philadelphia IRS office.

I have waited months for a personal face to face discussion

[with the IRS] to no avail. Therefore, I wanted to be heard in court

to discuss the re[a]son for denial ofmy tax expenses. I have see[n]

in person only one IRS staff in 2 years. I only receive a collection

notice with no discussion ofverbal nature.

During 2007 and 2008, the IRS offices of the Treasury in

Cincinnati, OH [illegible] $160,000 from 4 [of my] checking and

savingsaccounts....

In addition[,] my salary & bonus were taken from 2007,

routinely considered Form 4340 under the public records exception to the hearsay rule." Ebeyer

v. United States, I l4 Fed. Cl. 538, 548 (2014).

-J-

2008 for [a total amount ofl $300,000. I have received no refund

from the IRS for the [illegible] funds taken for an alleged debt of

[$]200,000 for tu< yer 2002.

I felt the court system would look at the total picture.

Pl.'s Resp. l-2. Defendant filed its reply on April 28,2016. The case is ripe for decision and the

court deems oral argument unnecessary.

II. LEGALSTANDARDS

A. The Tucker Act

The United States Court ofFederal Claims ("Court ofFederal Claims") is a court of

limited jurisdiction. Jentoft v. United States, 450 F.3d 1342, 1349 (Fed. Cir. 2006) (citing

United States v. King, 395 U.S. 1,3 (1969). The scope of this court's jurisdiction to entertain

claims and grant reliefdepends upon the extent to which the United States has waived its

sovereign immunity. King, 395 U.S. at 4. In "construing a statute waiving the sovereign

immunity of the United States, great care must be taken not to expand liability beyond that which

was explicitly consented to by Congress." Fid. Constr. Co. v. United States,700 F,2d 1379,

1387 (Fed. Cir. 1983). A waiver of sovereign immunity "cannot be implied but must be

unequivocally expressed." King, 395 U.S. at 4. Unless Congress consents to a cause ofaction

against the United States, "there is no jurisdiction in the Court of Claims more than in any other

court to entertain suits against the United States." United States v. Sherwood, 312 U.S. 584,

s87-88 (1941).

The Tucker Act confers upon the Court ofFederal Claims jurisdiction to "render

judgment upon any claim against the United States founded either upon the Constitution, or any

Act ofCongress or any regulation ofan executive department, or upon any express or implied

contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort." 28 U.S.C. $ la91(a)(1) (2012). Although the Tucker Act waives the sovereign

immunity of the United States for claims for money damages, it "itself does not create a

substantive cause ofaction; in order to come within the jurisdictional reach and the waiver ofthe

Tucker Act, a plaintiff must identifr a separate source of substantive law that creates the right to

money damages." Fisher v. United States , 402 F.3d 1167 , 11.72 (Fed. Cir. 2005). The separate

source of substantive law must constitute a "money-mandating constitutional provision, statute or

regulation that has been violated, or an express or implied contract with the United States,"

Loveladies Harbor. Inc. v. United States,27 F.3d 1545,1554 (Fed. Cir. 1994) (en banc). "[l]n

order for a claim against the United States founded on statute or regulation to be successful, the

provisions relied upon must contain language which could fairly be interpreted as mandating

recovery of compensation from the govemment." Cumminss v. United States,17 Cl. CL.475,

479 (1989) (intemal citations omitted); see also United States v. Testan, 424 U.S. 392,398

(1976) (stating that a "grant ofa right ofaction must be made with specificity").

-4-

The Court of Federal Claims "may not entertain claims outside this specific jurisdictional

authority." Adams v. United States,20 Cl. Ct. 132, 135 (1990). Thus, with the exception of

limited situations not relevant in this case, see 28 U.S.C. $ 1a91(a\2), (b)(2), the Court of

Federal Claims lacks jurisdiction to award declaratory or injunctive relief Bowen v.

Massachusetts, 487 U.S. 879,905 & n.40 (1988); accord Brown v. United States, 105 F.3d 621,

624 (Fed. Cir. 1997) ("The Tucker Act does not provide independent jurisdiction over . . . claims

for equitable relief."). Moreover, subject to limited exceptions, federal courts are prohibited

from awarding declaratory or injunctive reliefby the Anti-Injunction Act. See 26 U.S.C.

$ 7a21(a) (2012) ("fNlo suit for the purpose ofrestraining the assessment or collection ofany tax

shall be maintained in any court by any person . . . ."). Specifically, section 7421(a) "provides

that once a tax has been assessed, a taxpayer is powerless to prevent the [IRS] from collecting

that tax." Stiles v. United States , 47 Fed. Cl. 1, 2 (2000). Nevertheless, Congress granted this

court the authority to entertain tax refund suits, Sge 28 U.S.C. $ 1346(a)(l), provided that the

taxpayer plaintiff has made full payment.

B. Pro Se Plaintiffs

The Court of Federal Claims holds pleadings of a p1q 5e plaintiffto less stringent

standards than litigants represented by counsel. Haines v. Kemer, 404 U.S. 519,520 (1972).

Courts have "strained [their] proper role in adversary proceedings to the limit, searching ' . . to

see if plaintiff has a cause of action somewhere displayed." Ruderer v. United States , 412 F .2d

1285,1292 (Ct. Cl. 1969). Although plaintiff s pleadings are held to a less stringent standard,

such leniency "with respect to mere formalities does not relieve the burden to meet jurisdictional

requirements." Minehan v. United States, 75 Fed. C|.249,253 (2007); see also Kellev v. Sec'y.

U.S. Den't of Labor ,812 F.2d 1378, 13 80 (Fed. Cir. 1987) (.'[A] court may not similarly take a

liberal view of that jurisdictional requirement and set a different rule for plQ-sg litigants only.");

Bemard v. United States, 59 Fed. Cl. 497, 499 (2004) (noting that p19-ge plaintiffs are not

excused from satis$ing jurisdictional requirements). As explained in Demes v. United States,

"[w]hile a court should be receptive to pro se plaintiffs and assist them, justice is ill-served when

ajurist crosses the line from finder of fact to advocate." 52 Fed. Cl' 365,369 (2002).

C. Motions to Dismiss Pursuant to RCFC l2(bxl)

When resolving a motion to dismiss for lack of subject matter jurisdiction pursuant to

RCFC l2(bX1), the court "must accept as true all undisputed facts asserted in the plaintiff s

complaint and draw all reasonable inferences in favor of the plaintiff." Trusted Inte$ation. Inc.

v. United States, 659 F.3d I 159, 1163 (Fed. Cir. 201 l) (citing Henke v. United States, 60 F'3d

795,797 (Fed. Cir. 1995)). If the court determines that the factual allegations set forth in the

complaint are insufficient to resolve the jurisdictional dispute, then it may consider relevant

evidence beyond the pleadings. See Fisher, 402 F.3d at 1181-83.

Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). "Without jurisdiction the

-5-

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause." Ex oarte McCardle,74 U.S. (7 Wall.) 506,514 (1868). The parties, or

the court sua sponte, may challenge the existence of subject matter jurisdiction at any time.

Arbaugh v. Y & H Com., 546 U.S. 500, 506 (2006). When ajurisdictional challenge is raised,

the plaintiffbears the burden ofproving, by a preponderance ofthe evidence, that the court

possesses subject matter jurisdiction. Lujan v. Defenders of Wildlife,504 U.S. 555,561 (1992);

McNutt v. Gen. Motors Acceptance Com., 298 U.S. 178, 189 (1936); Brandt v. United States,

710 F.3d 1369,1373 (Fed. Cir.2013); Reynolds v. Army & Air Force Exch. Serv.,846F.2d746,

748 (Fed. Cir. 1988). The plaintiff cannot rely solely on allegations in the complaint, but must

bring forth relevant, adequate proofto establish jurisdiction. See McNutt,298 U.S. at 189.

Ultimately, if the court finds that it lacks subject matter jurisdiction, then it must dismiss the

claim. RCFC 1 2(h)(3); Matthews v. United States, 72 F ed. Cl. 27 4, 27 8 (2006),

III. DISCUSSION

A. The Court Lacks Subject Matter Jurisdiction Over Plaintiff s Tax Refund Claim

It is "undisputed" that the Court ofFederal Claims possesses the authority to adjudicate

tax refund claims. CNG Transmission Mgmt. VEBA v. United States, 84 Fed. Cl.327,328

(2008); accord Radioshack Corp. v. United States, 82 Fed. Cl. 155, 158 (2008); see also Artuso

v. United States, 80 Fed. Cl. 336, 338 (2008) ("A tax refund claim, with very few exceptions, is

the only type of tax dispute over which this court has jurisdiction."). "A taxpayer seeking a

refund oftaxes enoneously or unlawfully assessed or collected may bring an action against the

Govemment either in United States district court or in the United States Court of Federal

Claims." United States v. Clintwood Elkhom Mining Co., 553 U.S. 1, 4 (2008) (citing 28 U.S.C.

$ 1346(aXt)). Section 1346of title28of the United States Code provides, in relevant part:

(a) The district courts shall have original jurisdiction, concurrent

with the United States Court of Federal Claims, of:

(I )

Any civil action against the United States for the

recovery of any intemal-revenue tax alleged to have been

erroneously or illegally assessed or collected without

authority or any sum alleged to have been excessive or in

any manner wrongfully collected . . .

28 U.S.C. $ 13a6(a)(l). In order for the court to assert jurisdiction over such a claim, however, a

plaintiff must (l ) satisfu the full payment rule, and (2) file a tax refund claim with the IRS.

Artuso,80 Fed. Cl. at 338. In this case, plaintiff failed to do either, thus depriving this court of

iurisdiction.

-6-

1. Plaintiff Failed to Satisfy the Full Payment Rule

Under the full payment rule, a court's jurisdiction over tax refund claims is limited to

only those claims where the taxpayer has fully paid all taxes assessed for the ta,r year at issue

prior to the initiation of the claim. Flora v. United States, 357 U.S. 63, 75 (1958). The United

States Court of Claims, the predecessor ofthe United States Court ofAppeals for the Federal

Circuit, "consistently applied the full payment rule with regard to the principal tax deficiency.

Where the principal tax deficiency [w]as not . . . paid in full, such tax refund claims [were]

dismissed . . . ." Shore v. United States , 9 F .3d 1524, 1526 (Fed. Cir. 1993) (citing Tonasket v.

United States,590 F.2d 343 (Ct. Cl. 1978)); accord Rocovich v. United States ,933 F.2d,991,

993-94 (Fed. Cir. 1991). In other words, "payment of the assessed taxes in full is a prerequisite

to bringing a refund claim." Ledford v. United States ,297 F.3d 1378, 1382 (Fed. Cir. 2002);

accord Artuso, 80 Fed. Cl. at 338 ("A refund suit is exactly what the descriptive term implies.

Under the 'full payment rule' a plaintiff must have fully paid the tax, penalties, and interest at

issue.").

"A Certificate of Assessments and Payments is routinely used to prove that a tax

assessment has in fact been made." Rocovich,933F.2d at 994; accord Young,62Fed. Cl. at 601

(stating that a Certificate of Assessments and Payments is "'generally regarded as being

sufficient proof, in the absence ofevidence to the contrary, of the adequacy and propriety of

notices and assessments that have been made"'(quoting Long v. United States,972F.2d1174,

llSl (1OthCir.1992))); UnitedStatesv.Chila,STlF.2d 1015, 1018(1 lthCir. 1989)

(recognizing that a Certificate of Assessments and Payments is "presumptive proofofa valid

assessment" (intemal quotation marks omitted)). The Certificate of Assessments and Payments

for plaintiff s 2009,2012, and 2013 tax years reflect that plaintiffhas not fully paid his income

tax liability for those years. Thus, to the extent that plaintiff seeks a refund of amounts that were

collected pursuant to the Lely Notices and applied thereafter to his tax liabilities for tax years

2009,2012, and 2013, the court lacks jurisdiction to entertain these claims. Simply put, plaintiff

fails to allege, much less demonstrate, that he has fully paid his outstanding tax liabilities for

these three tax years. See Def.'s Ex. A2-3, 45-6, A8-9 (containing certificates of Assessments

and Payments indicating that payments for tax years 2009,2012, and 2013 remain outstanding).

2. Plaintiff Failed to File a Tax Refund Claim

In addition to satisfuing the full payment rule, a plaintiff must also have filed a claim for a

refund with the IRS for the amount of tax at issue, in compliance with 26 U.S.C. $ 7 a22@).

Artuso, 80 Fed. Cl. at 338. Section 7422(a), which waives the federal govemment's soverergn

immunity from tax refund suits, Chi. Milwaukee Com. v. United States,40 F.3d 373, 375 (Fed.

Cir.1994), provides:

No suit or proceeding shall be maintained in any court for the

recovery ofany intemal revenue tax alleged to have been

enoneously or illegally assessed or collected, or of any penalty

-7-

claimed to have been collected without authority, or of any sum

alleged to have been excessive or in any manner wrongfully

collected, until a claim for refund or credit has been duly filed with

the Secretary, according to the provisions oflaw in that regard, and

the regulations of the Secretary established in pursuance thereof.

26 U.S.C. $ 7422(a). By requiring that a plaintiff first file a refund claim with the IRS, section

7422(a) creates ajurisdictional prerequisite to filing a refund suit in this court. Chi. Milwaukee

Corp., 40 F.3d at 374 (citing Burlinston N.. Inc. v. United States , 684 F .2d 866, 868 (Ct. Cl.

1982)); see also Clintwood Elkhorn Mining Co., 553 U.S. at 7 (noting that Congress must have

intended section 7 422(a) to have an expansive reach given its inclusion offive "any's" in one

sentence). In this case, plaintiff has not alleged, nor is there any evidence, that he filed a refund

claim with the IRS for tax years 2009, 2012, and,2013.

3. Plaintiff Failed to Properly Plead a Tax Refund Claim

Finally, the court notes that, although not jurisdictionally fatal standing in isolation,

plaintiff has not complied with the requirements set forth in RCFC 9 for pleading a tax refund

claim. The requirements of subdivision (m) of that rule embody the jurisdictional prerequisites

for maintaining such a suit in this court:

(-) Tax Refund Claim. In pleading a claim for a tax refund, a

party must include:

(1) a copy ofthe claim for refund, and

(2) a statement identifuing:

(A) the tax year(s) for which a refund is sought;

(B) the amount, date, and place ofeach payment

to be refundedl

(C) the date and place the retum was filed, if

any;

(D) the name, address, and identification number

(under seal) ofthe taxpayer(s) appearing on

the retum;

(E) the date and place the claim for refund was

filedl and

(F) the identification number (under

seal) of each plaintiff, if different

from the identification number of the

taxpayer.

RCFC 9(m). In this case, plaintiff has neither asserted that he filed a tax refund claim with the

IRS, nor filed a copy ofany such claim along with a statement that includes the information

listed in subdivisions (A) through (F). As a consequence, the court lacks jurisdiction to entertain

-8-

plaintiffs tax refund claims for tax years 2009, 2012, and2013.

B. To the Extent Plaintiff Seeks to Stay the Garnishment of His Wages or Enjoin

Enforcement of the Tax Levies, the Court Lacks Subject Matter Jurisdiction

Although not specifically requested by plaintiff, to the extent he seeks a stay ofthe

ongoing garnishment ofhis wages by the IRS, see Pl.'s Resp. 2 ("ln addition[,] my salary &

bonus were taken from 2007 ,2008 for [a total amount ofl $300,000. I have received no refund

from the IRS for the [illegible] funds taken for an alleged debt of [$]200,000 for tax year 2002."),

the court lacks the power to do so. The court can only award equitable relief that is "incidental to

and collateral to a claim for money damages." Bobula v. U.S. Dep't of Justice,970 F.2d 854,

858-59 (Fed. Cir.1992); accord Simanonok v. Simanonok, 918 F.2d 947,952 (Fed. Cir. 1990)

(stating that claims for injunctive reliefare "not cognizable in a. . . Tucker Act case, absent a

concurrent colorable claim for monetary recovery" (citing Richardson v. Morris,409U.S.464,

465-66 (1973) (per curiam))). Although plaintiff seeks monetary relief in the form of a tax

refund, the court lacks subject matter jurisdiction over the claim because, as stated above,

plaintiff failed to (1) satisfu the tull payment rule, (2) file a tax refund claim, and (3) properly

plead a tax refund claim. Thus, to the extent plaintiff seeks a stay of the ongoing gamishment of

his wages, because such a request is not incidental or collateral to a claim for money damages, it

is not properly before this court.

The same is true to the extent plaintiffseeks to enjoin enforcement ofthe tax levies.

"Absent a'concurrent claim for monetary recovery,' this court lacks jurisdiction over the

plaintiffs' claims for equitable relief. In addition, the Anti-lnjunction Act prohibits a 'suit for the

purposeofrestraining...thecollectionofanytax....'26U.S.C.$7421(a)."Cherbanaeffv.

United States, 77 Fed. cI.490,505 (2007); accord Russell v. United States, 7g Fed. cl.2gl,2gg

(2007); Betz v. United States,40 Fed. CL.286,29t (1998); see also 26 U.S.C. g7 2I@) (,,Except

as provided in [various] sections . . . no suit for the purpose ofrestraining the assessment or

collection ofany tax shall be maintained in any court by any person, whether or not such person

is the person against whom such tax was assessed.); Lonsdale v. United States,glg F.2d 1440,

1442 (10th Cir.l990) ("The [plaintiffs'] complaint states that it seeks injunctive and declaratory

relief as well as a refund of amounts collected pursuant to the levies in question. But their

complaint is essentially an attempt to prevent the collection ofassessed taxes by challenging the

underlying tax assessments. That challenge violates the Antilnjunction Act on its face.").

c. To the Extent Plaintiff Alleges a wrongful Levy claim, the court Lacks subject Matter

Jurisdiction

Finally, to the extent plaintiff, by attaching copies of the three Levy Notices to his

complaint, see Compl. 2, 4, 6, challenges their validity, the court lacks subject matter jurisdiction

to entertain the claim. Section 7426(a) of the Intemal Revenue Code provides, in part:

-9-

(l) Wrongful levy, If a lely has been made on property or

property has been sold pursuant to a levy, any person (other

than the person against whom is assessed the tax out of

which such levy arose) who claims an interest in or lien on

such property and that such property was wrongfully levied

upon may bring a civil action against the United States in a

district court ofthe United States.

26 U.S.C. $ 7a26(aXl). In other words, section7426(a) states that the right to initiate a wrongful

levy action against the government belongs to a third party, not "the person against whom is

assessed the tax out of which such levy arose." Id.; see also EC Term of Years Trust v. United

States, 550 U.S. 429, 433 (2007). Plaintiff, however, is not a third party. Therefore, he is not

"within the class ofplaintiffs entitled to recover under tlre statute . . . ." Greenlee Countv. Ariz.,

487 F.3d at 876.

IV. CONCLUSION

For the reasons stated above, the court lacks jurisdiction over plaintiffs complaint.

Accordingly, defendant's motion to dismiss the complaint is GRANTED. The Clerk of court is

directed to DISMISS plaintiff s complaint WITHOUT PREJUDICE and to enter judgment

accordingly. No costs.

IT IS SO ORDERED,

-10-