IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
HAROLD Patriot; )
SHERRIE Patriot, ) Civil No. 1:08-CV-xxx
Plaintiffs, )
)
v. )
) MOTION TO DISMISS
UNITED STATES OF AMERICA; et al, )
Defendants. )
MOTION TO DISMISS
The United States of America and the Internal Revenue Service move to dismiss
the Internal Revenue Service as a party to this action because the only proper party
defendant is the United States, and to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(6). As grounds for this motion, the United States and the Internal Revenue
Service assert that the Service may not be sued eo nomine, and that the statute of
limitations for plaintiffs’ claims, which are based on 26 U.S.C. §§ 7332 and 7433, have
expired. The relief sought is that plaintiffs’ complaint be dismissed in full.
A memorandum of law in support of this motion and proposed order are filed
herewith.
Date: July 9, 2008.
Respectfully submitted,
/s/ Benjamin J. Weir
BENJAMIN J. WEIR (D.C. Bar No. 494045)
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 227
Ben Franklin Station
Washington, D.C. 20044
Telephone: (202) 307-0855
Fax: (202) 514-6866
benjamin.j.weir@usdoj.gov
Counsel for Internal Revenue Service
OF COUNSEL:
JEFFREY A. TAYLOR
United States Attorney
________________________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
HAROLD Partriot; )
SHERRIE Patriot, ) Civil No. 1:08-CV-xxx
Plaintiffs, )
)
v. ) MEMORANDUM IN SUPPORT OF
) DEFENDANTS MOTION TO DISMISS
UNITED STATES OF AMERICA; et al, )
Defendants. )
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
This case concerns Harold Patriot and Sherrie Patriot’s complaint that asserts
claims pursuant to 26 U.S.C. §§ 7432 and 7433. Plaintiffs claim that the defendant’s: (1)
failed to remove invalid notices of federal tax lien; and (2) Internal Revenue Service’s
employees engaged in unauthorized collection activities. The complaint is deficient and
must be dismissed. First, the Internal Revenue Service may not be sued eo nomine and
must be dismissed as a party to this case. Second, plaintiffs’ claims are barred by the
statutes of limitations contained in sections 7432 and 7433.
I. The United States is the only proper party defendant
The Internal Revenue Service is not authorized to sue or be sued eo nomine, and
therefore, the Court lacks jurisdiction over the person of the Internal Revenue Service.
See Enax v. United States, Case No. 8:05cv2124, 2006 U.S. Dist. LEXIS 46023 at *4 (M.D.
Fla. July 7, 2006)(dismissing the Service as a named defendant because Congress has not
waived sovereign immunity and authorized it be sued eo nomine); Fairchild v. Internal
Revenue Service, 450 F. Supp. 2d 654, 657 (M.D. La. 2006)(dismissing the Service as a
party and noting that a 28 U.S.C. §2410 claim may only be brought against the United
States). The only proper party respondent in this matter is the United States of
America. Murphy v. United States, 493 F.3d 170, 173-74 (D.C. Cir. 2007). The Internal
Revenue Service should, therefore, be dismissed as a party in this action.
II. The statutes of limitation have expired for plaintiffs’ claims
Plaintiffs’ complaint asserts claims pursuant to 26 U.S.C. §§ 7432 and 7433.
Sections 7432(d)(3) and 7433(d)(3) each provide that an action “under this section. . .
may be brought only within 2 years after the date the right of action accrues.” Under
sections 7432 and 7433, a “right of action accrues” “when the taxpayer has had a
reasonable opportunity to discover all essential elements of a possible cause of action.”
26 C.F.R. §§ 301.7432-1, 301.7433-1. “[A]n affirmative defense may be raised by preanswer
motion under Rule 12(b) when the facts that give rise to the defense are clear
from the face of the complaint.” Smith-Haynie v. District of Columbia, 155 F.3d 575, 578
(D.C. Cir. 1998).
Plaintiffs’ complaint alleges that on November 30, 2004, they “were told by an
attorney” of the Internal Revenue Service’s “five Notices of Liens”. (Compl. ¶¶ 13-14.)
Their right of action accrued, therefore, no later than November 30, 2004. See 26 U.S.C.
§§ 7432 and 7433; 26 C.F.R. §§ 301.7432-1, 301.7433-1; see also Delvecchio v. Smith, 101
A.F.T.R.2d 2008-2011, at *2008-2015 (S.D. Fla. 2008) (holding that plaintiffs’ right of
action accrued pursuant to section 7433 “when they were notified that a tax lien had
been placed upon their home.”). Plaintiffs’ complaint was not filed until May 16, 2008 -
nearly three and a half years after their right of action accrued. The complaint is,
therefore, barred by the statute of limitations and must be dismissed in full. Smith-
Haynie, 155 F.3d at 578; 26 U.S.C. §§ 7432 and 7433; 26 C.F.R. §§ 301.7432-1, 301.7433-1.
Conclusion
Plaintiffs’ complaint must be dismissed for two reasons. First, the Internal
Revenue Service may not be sued eo nomine, therefore, the only proper party defendant
is the United States. Second, plaintiffs have admitted that they did not file their
complaint until three and a half years after their right of action had accrued. Therefore,
their complaint is barred by the statute of limitations.
Date: July 9, 2008.
Respectfully submitted,
/s/ Benjamin J. Weir
BENJAMIN J. WEIR (D.C. Bar No. 494045)
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 227
Ben Franklin Station
Washington, D.C. 20044
Telephone: (202) 307-0855
Fax: (202) 514-6866
benjamin.j.weir@usdoj.gov
Counsel for Internal Revenue Service
OF COUNSEL:
JEFFREY A. TAYLOR
United States Attorney
CERTIFICATE OF SERVICE
I, Benjamin J. Weir, certify that on July 9, 2008, a true and correct copy of the
foregoing motion and memorandum of law were served upon the following via the
Court’s ECF filing protocol:
Lawyer Patriot
Arlington, VA 22209-2004
/s/ Benjamin J. Weir
BENJAMIN J. WEIR