UNITED STATES DISTRICT COURT 
                                 FOR THE DISTRICT OF KANSAS 
                                 
Marian M.                     ) 
        Plaintiff             ) 
                              )    CASE NO: ________________ 
   v.                         ) 
                              ) 
UNITED STATES OF AMERICA      )
       Defendant              ) 
______________________________) 
 

COMPLAINT FOR DAMAGES PURSUANT TO 26 USC §7433

1. I am filing this lawsuit pursuant to 26 USC §7433 due to unauthorized Internal Revenue Service (IRS) levy on my Social Security benefits (hereinafter “benefits”). The IRS negligence and recklessness has caused me actual, direct economic damages. I am seeking a judgment from this Honorable Court for the return of money illegally taken from me, plus interest, and any other relief the Court deems appropriate. I am an inhabitant of Wichita, Kansas.

I. THE FACTS

2. I am an inhabitant of Wichita, Kansas.

3. From June 2007 through November 2007, my monthly benefits were $1,072. The levy was $342.80 per month. From December 2007 until the present, the monthly benefits are $1,096.66 per month. The levy has been $249.80 per month. For tax year 2000, the amount of tax allegedly due was approximately $486. The IRS continued its collection beyond that amount. I did not request a collection due process hearing (CDPH) for that year.

4. For tax years 2001 and 2002, I filed a timely CDP hearing request pursuant to IRC §6330. This section prohibits any levy until the end of the CDPH case. No levies for years 2001 and 2002 should have been allowed until my hearing has been resolved. My CDPH request is an active, pending case. I wrote several letters to IRS offices in this area concerning the failure to honor my CDPH request and the automatic stay of collections.

5. For year 2002, the U.S. Tax Court ruled “That the determination set forth in the Notice of Determination Concerning Collection Action for the taxable year 2002 upon which this case is based is not sustained.” (Docket No. 17066-07L) The IRS was required to abate the balance of my income tax liability for 2002. I won this CDPH case and therefore a levy is prohibited for this tax year.

II. JURISDICTION

6. The U.S. District Court has original jurisdiction of: “Any civil action against the United States for the recovery of any income tax alleged to have been erroneously or illegally….collected, or in any manner wrongfully collected under the internal-revenue laws.” See 28 U.S.C. § 1346(a)(1). Moreover, 26 USC 7433 permits anyone to seek civil damages for certain unauthorized collection actions.

III. STANDARD OF REVIEW

7. The Court should treat the complaint's factual allegations - including mixed questions of law and fact - as true and draw all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003);Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003).

8. 26 U.S.C. § 7433(a) specifically provides a remedy in a United States district court. It says: “If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service 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.”

9. To win her case, Plaintiff should 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). One violation alone is sufficient for this Court to issue a judgment in favor of Plaintiff – and restore to Plaintiff her rights as soon as possible.

IV. ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED

10. On October 17, 2008, I filed an Administrative Claim for Unauthorized Collection Actions under IRC 7433 & 26 CFR 301.7433-1. (Exhibit A). This claim for which is hereby incorporated by reference, has the details, facts and particulars for this lawsuit. On June 16, 2009 Plaintiff filed her Administrative Claim for Unauthorized Collection Actions under IRC 7433 & 26 CFR 301.7433-1 (Exhibit B). The IRS denied these claims on June 2, 2009 (Exhibit D) and August 12, 2009 (Exhibit C).

I filed a number of other administrative claims which were very similar to the attached claims. However I sent them Compliance Technical Support Managers at different addresses on different dates. These additional Administrative claims were sent to the following addresses on the following dates:

The IRS has not responded to the above administrative claims which are listed in the table and the waiting period has expired. Therefore I have satisfied the requirement of exhaustion of administrative remedy for these.

These additional claim letters will be filed with this court separately soon in my List of Exhibits.

V. THIS LAWSUIT IS FILED WITHIN THE PERIOD FOR BRINGING ACTION

11. Considering the dates of submitting the administrative claims as the date of accrual is supported by Nordbrock v. U.S., 96 F.Supp.2d 944 at 946 (D.Ariz.,2000); Snyder v. U.S., 260 Fed.Appx. 488 at 493, (C.A.3 (Del.), 2008); and the United States’ arguments in Tenpenny v. U.S., 490 F.Supp.2d 852 at 858-859 (N.D.Ohio, 2007). Another consideration is the date the IRS responded unfavorably to a plaintiff’s administrative claims. Gottlieb v. I.R.S., 4 Fed.Appx. 355, C.A.9 (Cal.), 2001.

I am timely filing this complaint within two years from filing my administrative claims (Exhibits A and B) and from receiving an unfavorable response from the IRS (Exhibits C and D).

VI. REASONS FOR IRS DENIAL OF CLAIMS IS NOT SUPPORTED BY STATUTE

12. According to IRS letter in Exhibit C, the IRS denied my claim because I “had more than one source of income while the levy was enforced which was more than the exempt amount. The wrongful levy claim is invalid because the claim has to be requested by a person other than the taxpayer who owes the tax.” The IRS letter in Exhibit D repeats similar assertions.

13. The standard levy: When the IRS levies a wage or pension; they send the company a large group of similar forms with NCR carbons. The company keeps one form, fills out one and returns it to the IRS and then sends one copy to the taxpayer. The taxpayer returns to the employer the taxpayer’s form listing his dependents. The employer, using the IRS instructions, determines the exempt amount. Then the employer takes out of the check all of the pay except the exempt amount. The pension admistrator operates the same as an employer.

14. The exempt amount per person is approximately $200 per week in cases of weekly payroll, or approximately $800 per individual if paid monthly. The tax victim also can claim in his form (as explained above) dependents. For each dependent, the taxpayer receives a greater exempt amount of half of his original exempt amount. In this case, I was entitled to the exempt amount of $800 and $400 for my dependent husband. Under federal law, my exempt amount is about $1200 per month and the IRS cannot touch that.

15. Under the collection statute, from the monthly levy on my SS benefit I am allowed to receive the $1200 exemption amount and the IRS collects the rest. That is a very small amount.

16. The IRS claims that the standard levy as explained above is one of their two options. Actually, the tax law provides that the IRS can only use the Treasury Offset Program (TOP) which is 15% of my benefit. The IRS did not choose that option and therefore the IRS is entitled to approximately nothing. Therefore almost all of the levy amount is illegal and should therefore be returned with interest and damages.

17. After many years and thousands and thousands of levies under the standard levy procedure, the SS Administration is finally sending to the tax victims the form and instructions for them to claim their exempt amounts. Due to bureaucratic confusion, millions of honest, law abiding Americans have had half or all of their SS checks stolen by the tax collectors. This administrative agency should be held responsible for their wrong-doing.

18. Firstly, in this case the IRS did not send the exempt form for me to know and claim the exempt amount the IRS was referring to in their denial letter. The tax collectors were supposed to send the levy forms to the Social Security Administration who would then forward my portion of the packet. For years the SS/IRS did not inform the tax victims of the existence of the standard levy procedure or the fact that the IRS was ignoring the TOP law.

19. Secondly, these IRS letters did not explain the statutory basis for the standard levy. The tax collectors as usual operated in secret and created mass confusion for SS beneficiaries. The IRS letters did not present the statutorily-based criteria that were followed for the IRS to reach such a conclusion – so that I could verify whether or not the criteria for the levy had been met.

20. Denial of my due process consists of being accused of certain things or to have my property taken away, without specifically being informed under what statutory provision the IRS is acting. By reviewing legal precedent, one can see that two types of levies could be made pursuant to 26 USC 6331 – either pursuant to 6331(a) or 6331(h). The IRS did not explain in its letter if it is acting under 6331(a), (h) or any other provision.

VII. COLLECTION VIOLATIONS

21. The IRS is in violation of 26 USC §6301. The IRS has no authority to collect more than what it is authorized to collect. As a matter of fact, the IRS does not have an authority to collect any of my benefits because Social Security benefits may not be levied as per 42 U.S.C. 407(a) [1]– unless another law provides otherwise:

22. The IRS is in violation of 26 USC §6330. For the tax years in question, my collection due process hearing (CDPH) has not ended. IRC §6330 states that I am entitled to a conclusion of that before collections are initiated. Levies are prohibited until the conclusion of the CDPH process.

23. The IRS is in violation of 26 USC §6331. There is no proper notice to levy the additional amounts that have been levied. The IRS has no authority to levy any of my social security benefits since they are not “specified payments” subject to a levy. The IRS is in violation of 26 USC §6343. Property or money wrongfully taken from Plaintiff must be returned to Plaintiff with interest. The IRS denied my administrative claim and has refused to return the money wrongfully taken from me, or cease the taking of additional money from me.

VIII. DAMAGES

24. The injuries for this claim include severe and unnecessary hardship to my family, my aged husband, and me. The IRS’s unauthorized taking of my retirement benefits caused us anxiety, emotional distress, and mental anguish.

25. The dollar amount of my claims includes, but not limited to:

• Ÿ $2,056.80 (taken by the IRS from June 2007 through November 2007 at $342.80 per month);
• Ÿ $5,495.60 (taken by the IRS from December 2007 until September 2009 at $249.80 per month);
• Ÿ Reasonable interest on money taken;
• Ÿ Reimbursement for court costs in filing this lawsuit and cost of the Administrative Claim; and
• Ÿ Compensation for my pain and suffering.

26. Since the levy, I have developed new physical problems. I have developed a nervous "twitch", better known as the Kathryn Hepburn syndrome, where my head twitches. I have always been exceptionally healthy before this tax situation arose. I was very proud that I only used three sick days during the 35 plus years when I was working full time. This condition is now controlled most of the time by my physician's recommended supplement that I take three times daily. If I do not take it, the "twitches" return every few seconds. Also I have gained 30lbs. That is a problem since I am only 4 ft. 11 and 3/4" tall. I have tried numerous diets, exercise etc., but cannot lose it. The excess weight leaves me vulnerable to be at serious risk to develop numerous other more serious health problems.

27. Several courts have found that pain and suffering can be sought for violations of federal laws when the damages provisions of hose laws permit the recovery of “actual damages.” Johnstone v. Bank of America, N.A., 173 F. Supp. 2d 809, (N.D. Ill. 2001) (justifies mental anguish in a RESPA claim by looking at other federal laws); Hrubec v. Nat’l R.R. Pass Corp., 829 F. Supp. 1502 (N.D. Ill 1993). Therefore, my “mental anguish, anxiety, and emotional distress” are permitted awards under Section 7433 which allows for “actual, direct economic damages.”

28. I have suffered enough because of the IRS in negligence caused infliction of emotional distress from its breach of duty to act in good faith and fair dealing. I have an intangible right to receive honest services.

29. Congressional Intent: The United States Congress studied bureaucratic misconduct in governmental agencies, such as the IRS, and decided to authorize statutory damages (such as those listed in 26 U.S.C. §7433) to give the bureaucracies incentive to obey the law. Further, the elected representatives of the people want the courts to award maximum damages to give incentives to the people to file complaints in federal courts and to enforce the laws that Congress wants enforced.

30. Our elected representatives, after careful deliberation, have decided that the best remedy for the tendency of government agencies to make errors or actual wrongdoing is remedial litigation in the form of citizens’ self-help statutes. Congress passed many “Private Attorney General Statutes” authorizing private citizens to file suit in federal courts, and upon prevailing collect their fees and costs.

31. If the Judiciary holds the IRS accountable, IRS supervisors would be motivated to better obey the law and supervise their employees. A large damage award would cause the IRS to stop pursuing certain illegal tactics and activities.

Plaintiff is entitled to maximum damages due to IRS illegal collection activities outlined herein. The facts and the law show that Defendant did pursue illegal and improper collection activities.

32. Such mistreatment of the citizen and waste of taxpayer dollars must be stopped. Strong action by one federal judge will cause Defendant to be more responsive to taxpayers and have more respect for citizens’ suffering due to IRS wrongdoings. Therefore the people will have greater respect for the tax agency and the IRS would actually collect more money.

As it is explained herein and as this Court well knows, a remedy to this problem exists.

IX. CONCLUSION

33. I respectfully move this Honorable Court to grant damages according to 26 U.S.C. §7433 and other relief the Court deems appropriate. The people of this country would support the government and its tax collectors more if they perceived that the law was fair, just and honest.

__________________________      Date: ____________ 
Marian M. 
Wichita, KS 67211-3865 

                                 UNITED STATES DISTRICT COURT 
                                 FOR THE DISTRICT OF KANSAS 
                                 
Marian M.                     ) 
        Plaintiff             ) 
                              )    CASE NO: ________________ 
   v.                         ) 
                              )     Summons in a Civil Action 
UNITED STATES OF AMERICA      )
       Defendant              ) 
______________________________) 
 

TO: Name and address of the Defendants:

The United States c/o The US Attorney 1200 Epic Center, 301 N. Main, Wichita, KS 67202
The US Attorney General, 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
IRS, C/O Commissioner of Internal Revenue, 111 Constitution Ave, N.W., Washington, DC 20224

YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon Plaintiff pro se:

_____________
Marian M.
Wichita, KS 67211-3865

an answer to the complaint which is herewith served upon you, within 60 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

___________________________________             ____________________ 
Clerk                                           Date 
____________________________________ 
By Deputy Clerk 

[1]The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter [such as social security benefits] shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.