UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PLAINTIFF				]
Dr. Tom					]
St. Cloud, Florida 34772		]       CIVIL CASE NO:_____________
V. 					)
DEFENDANTS				)       COMPLAINT FOR CIVIL DAMAGES 
UNITED SATES OF AMERICA 		)       UNDER 26 USC §7433
INTERNAL REVENUE SERVICE		)       (Jury Trial Requested)
1111 Constitution Avenue, NW		)
Washington, DC 20224			)
COMPLAINT
  1. Plaintiff Dr. Tom complains of Defendants United States of America and Internal Revenue Service and seeks damages for Illegal Tax Collections under 26 U.S.C. 7433.

    INTRODUCTION
  2. This complaint is being filed under FRCP 4. 4.
  3. Plaintiffs request trial by jury, pursuant to FRCP 38.
  4. This is an action brought under 26 U.S.C. 7433.
  5. Defendant is a federal agency, and Plaintiff is a citizen and resident of Osceola County, Florida.
  6. This Court has jurisdiction pursuant to 28 U.S.C. Section 1331 as this action involves federal statutes and Defendant Internal Revenue Service is a federal agency.
  7. Defendant is liable to the plaintiff for damages in an amount equal to the lesser of $1,000,000 ($100,000, in the case of negligence) or the sum of (1) actual, direct economic damages sustained by the Plaintiff as a proximate result of the reckless or intentional or negligent actions of the officer or employee, and (2) the costs of the action – for illegal Internal Revenue Service levies on plaintiff’s assets, return of monies illegally taken plus interest. 26 U.S.C.A. § 7433(b) and § 301.7433-1.
  8. This complaint is an action brought under 26 U.S.C. 7433 and CFR 301.7433 (e)(2) for civil damages plus fees and cost for illegal Internal Revenue Service levy on Plaintiff’s Social Security checks, professional compensation, and investments. The facts and the law will clearly show that Defendant interfered with Plaintiff’s use of his money while Defendant failed to pursue proper procedures in the collection of allegedly owed income tax. No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made. 26 USC 6330(a)(1)
  9. IRC section 6330, enacted as part of the IRS Restructuring and Reform Act of 1998, provides taxpayers with due process prior to the exercise of a tax levy. Congress intended that the IRS and the taxpayer would engage in a meaningful hearing – known as Collection Due Process Hearings (CDPH).

    REQUEST FOR INJUNCTIVE RELIEF
  10. Plaintiff has had no opportunity to be heard. The IRS did not extend to Plaintiff an opportunity for a hearing, as stated in 26 USC §6330.
  11. Defendant’s actions are in violation of the Equal Protection and Due Process Clauses.
  12. Plaintiff urgently requests from this Court to issue an injunction to prohibit Defendant from taking any collection measures against Plaintiff until this Court declares otherwise. In particular, Plaintiff asks this Court to immediately halt Defendant’s continuous and illegal collection of $1,230 taken monthly from Plaintiff’s Social Security check.

    FACTS
  13. Defendant pursued illegal collection measures against Plaintiff – including the garnishment of his pay check, some of his investments, and a large percentage of his Social Security retirement benefit under TOP. These illegal measures caused severe and unnecessary hardship to Plaintiff, his family, and his handicapped son
  14. From October 2006 to March 2007, the IRS had illegally levied $1,100 from Plaintiff’s social security retirement benefit check of $1,746.00. This illegal garnishment was repeated at least six times during that period.
  15. In January 2008, $1,192 was deducted from Plaintiff’s Social Security check. In addition, Plaintiff received a correspondence stating that as of February 2008 the Social Security Administration will be deducting $1,230 monthly. This $1,230 monthly deduction is continuing until today. These SS levies were done by way of the Treasury Offset Program [TOP] for an alleged tax debt for the tax years 1998 to 2003 and other years.
  16. In addition to the Social Security levy, the IRS garnished (on May 1, 2007) Plaintiff’s professional proceeds or compensation in the amount of $13,700 from Osceola Anesthesia Associates by levy which was unauthorized or illegal.
  17. Also in May 2007, the IRS levied Plaintiff’s 444 shares of MetLife, Inc. held for him by Mellon Investor Services worth about $30,000. The IRS told Mellon to liquidate Plaintiff’s shares, and Mellon sold theses shares on the market for about $30,000 (Exhibit A on the List of Exhibits to be filed separately). From the proceeds of the forced sale of Plaintiff’s stocks, Mellon sent $8,468 to Defendant and $21,775.10 to Plaintiff. On June 14, 2007, Mellon asked Plaintiff for the return of the funds (Exhibit B on the List of Exhibits). Plaintiff had incurred fees and costs pertaining to the sale and loss of value due to the early sale.

    LEGAL ARGUMENT
  18. To prove a claim for improper collection practices, the taxpayer must demonstrate that the IRS did not follow the prescribed methods of acquiring assets. 28 U.S.C.A. § 2410; Brewer v. C.I.R., 430 F. Supp. 2d 1254, 1260 (S.D. Ala. 2006).
  19. The Treasury Offset Program law only allows a TOP of 15 % to be removed from Plaintiff’s social security check. The Tax Payer Relief Act of 1997 (Public Law 105-34) authorizes the IRS to levy “up to 15 percent of each monthly payment…” The 15% from Plaintiff’s check amounts to $262. However, the tax collectors took about sixty-three per cent of Plaintiff’s check, or $1,100. This is obviously excessive, an illegal collection measure, and the SSA is permitting such a measure against the law. The six illegal tax collections were excessive for at least $6,600.
  20. In addition to the Social Security levy, the IRS garnished Plaintiff’s professional compensation from Osceola Anesthesia Associates and caused a forced liquidation of Plaintiff’s MetLife shares held for him by Mellon Investor Services.
  21. All these levies were unauthorized or illegal and harmed Plaintiff in many ways. They are invalid simply because Defendant failed to act according to law. Based on 26 USC 6330(a)(1), no levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made.
  22. IRC section 6330, enacted as part of the IRS Restructuring and Reform Act of 1998, provides taxpayers with due process prior to the exercise of a tax levy. Congress believed that taxpayers should be entitled to protections against the IRS that they would normally have with other creditors. Moreover, Congress intended that the IRS and the taxpayer would engage in a meaningful hearing on an administrative level, with adequate notice of collection, to increase fairness to taxpayers. These hearings have become known as Collection Due Process (CDP) hearings. Under IRC section 6330(c)(2), in the course of the proceedings, taxpayers can challenge the appropriateness of the collection action.
  23. By enacting "Taxpayer Bill of Rights," Congress recognized that certain injuries caused by intentional or reckless violation of tax laws by Internal Revenue Service (IRS) employees should be compensable, but limited scope of compensable claims to injuries sustained during collection. Arnett v. U.S., D.Kan.1995, 889 F.Supp. 1424, motion to amend denied 910 F.Supp. 515. Internal Revenue 4915
  24. For the tax years in question, the levy was wrongful because the tax collectors did not send Plaintiff a notice for a collection due process hearing (CDPH), as mandated by IRC § 6630. The legal process has not been carried out properly. No levies should be allowed until that notice is sent and the taxpayer fails to take advantage of his rights under the law.
  25. Congress, when enacting IRC section 6330, sought to mend relations between taxpayers and the IRS by providing an opportunity for both sides to reach an agreement before the taxpayer’s property was annexed. In this case, Defendant did not present Plaintiff with an opportunity to take advantage of a hearing as Congress intended for a taxpayer in Plaintiff’s position.
  26. Language borrowed from the United States Supreme Court in another tax case – which illuminates the duty owed by Defendant – is: “If that which the sovereign retains was unjustly taken in violation of its own statute, the withholding is wrongful. Restitution is owed the taxpayer….. [T]he unjust retention is immoral and amounts in law to a fraud on the taxpayer's rights.” Bull v. United States, 55 S.Ct. 695 at 700.
  27. It is clear that Defendant is not following the prescribed methods in acquiring Plaintiff’s assets. Therefore, Plaintiff must be compensated for the improper tax collection practice taken against him.

    EXHAUST ADMINISTRATIVE REMEDIES
  28. Under IRC 7433(d)(1) and CFR 301.7433-1(d), Plaintiff is required to exhaust his administrative remedies.
  29. Since the time of the wrongful IRS actions, Plaintiff had written Defendant many times about the illegal levies, the excessive TOP, and asked Defendant to stop the unauthorized garnishments. Plaintiff had also reminded Defendant of its failure to send the mandatory CDPH notice. In addition to the IRS, Plaintiff had also written the Social Security Administration regarding the illegal garnishment of his social security benefits. As of yet, Plaintiff has not received a meaningful response to his inquiries.
  30. Plaintiff has clearly exhausted his administrative remedies by filing about twenty or more administrative claims. Please refer to the List of Exhibits to be filed separately.

    DAMAGES
  31. According to 26 U.S.C. §7433, “defendant shall be liable to the plaintiff in an amount equal to the lesser of $1,000,000 ($100,000, in the case of negligence) or the sum of— (1) actual, direct economic damages sustained by the plaintiff as a proximate result of the reckless or intentional or negligent actions of the officer or employee, and (2) the costs of the action”
  32. Plaintiff suffered a number of damages due to the reckless, intentional, or negligent actions committed by Defendant or its officer, employee, or agent.
  33. Plaintiff is the sole supporter of himself and his family. The illegal IRS actions caused immense financial hardship to them.
  34. Further, Plaintiff was forced to hire and retain tax professionals to assist him, to write letters and explain avenues of contesting some IRS illegal measures against him.
  35. Plaintiff experienced immense costs and expended a vast amount of time and resources in contesting these invalid levies.
  36. The illegal collection measures taken against Plaintiff – including the garnishment of his pay check, some of his investments, and a large percentage of his Social Security retirement benefit under TOP – caused severe and unnecessary financial hardship to Plaintiff, his family, and his handicapped son. They were denied some necessities of life, had to incur debt and not pay bills, and suffered anxiety, emotional distress, mental anguish, and health problems.
  37. Plaintiff lost use of his money, plus reasonable interest.
  38. Plaintiff was unable to pay loans and other debts.
  39. Plaintiff’s damages include:
    1. $8,468 taken from the proceeds of the forced sale of Plaintiff’s stocks with Mellon. In addition, Plaintiff incurred fees and costs pertaining to the sale and loss of value due to the forced early sale caused by Defendant;
    2. $13,700 plus were levied from Plaintiff’s professional compensation from Osceola Anesthesia Associates;
    3. Funds collected illegally from Plaintiff’s Social Security paycheck since year 2006 until the present. Currently, an illegal collection of $1,230 is being taken monthly from Plaintiff’s Social Security checks;
    4. $5,646.00 sent to the IRS in January 2008;
    5. Damages permitted under Section 7433, including interest, and other relief the Court deems appropriate;
    6. Loss of use of Plaintiff’s money, plus reasonable interest;
    7. Attorney’s fees and costs associated with contesting Defendant’s actions.
  40. The robbery of Plaintiff’s pay, stocks, and Social Security funds – plus the resulting damage to his handicapped son – caused Plaintiff anxiety, emotional distress, mental anguish, physiological injury, severe health problems, etc.
  41. Plaintiff requests that damages permitted under Sections 7433 be multiplied by the number of counts against Defendant or by the number of IRS violations against Plaintiff.
  42. Plaintiff has exhausted his administrative remedies. This Court should grant Plaintiff the damages he seeks and other relief authorized by law and/or this Court deems appropriate.
  43. The Court should grant Plaintiff all amounts taken from Plaintiff’s social security plus damages for such illegal tax collection.

    CONCLUSION
  44. The Congress of the United States enacted the Unauthorized Tax Collection Act as part of the Taxpayer Bill of Rights II. The elected representatives of the people passed remedial legislation governing the conduct of IRS agents in collecting taxes. In order to encourage citizens like plaintiff who were aggrieved, Congress made this a self-help enactment with ample provisions for attorney fees and damages, similar to other federal bounty hunter statutes.
  45. This Court should encourage government attorneys to expediently resolve and settle cases, instead of fighting them while knowing that the IRS is at fault. To encourage quick settlement, judicial economy, and fairness to common citizens, this court should maximize damages against Defendant.

WHEREFORE Plaintiff requests that this Honorable Court do grant the relief herein requested, along with fees, costs, and other relief the Court deems appropriate.

___________________________

P. Lawyer, Esq. Arlington, VA 22209-2004

Date: May 29, 2008