|GEORGE and DEBORAH TUCCIO,
UNITED STATES OF AMERICA COMMISSIONER OF INTERNAL REVENUE SERVICE
No. 90 Civ. 0501 (MGC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1990 U.S. Dist.
July 26, 1990, Decided
July 27, 1990, Filed
OPINION AND ORDER
This action was brought pro se by George and Deborah Tuccio, a married couple, against the United States of America, the Commissioner of the Internal Revenue Service, and Revenue Agent Peter M. O'Keefe. The Tuccios seek (1) an injunction preventing the defendants from proceeding with an audit of their 1987 personal income taxes, and (2) damages in the amount of $ 15,000 to cover legal, accounting, administrative and court costs, as well as business losses. The defendants have moved to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons discussed below, defendants' motion to dismiss is granted.
Plaintiffs filed this action pursuant to 26 U.S.C. § 7430 and the Omnibus Taxpayer Bill of Rights. Omnibus Taxpayer Bill of Rights, Pub.L. No. 100-647, § 6226 et seq., 102 Stat. 3342, 3730-52 (1988). For the purpose [*2] of ruling on defendants' motion to dismiss, the allegations of the complaint must be accepted as true. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Complaint pertains to an audit of plaintiffs' 1987 personal income tax return which was commenced on November 30, 1988 by Revenue Agent Peter M. O'Keefe. On January 22, 1990, when the Complaint was filed, the audit had not yet been completed.
According to plaintiffs, at their first meeting with Agent O'Keefe, O'Keefe failed to "convey information concerning the rights of the taxpayer, administrative and judicial appellate procedures, refund and complaint procedures, including IRS audit and related matters," as required by the Omnibus Taxpayer Bill of Rights. n1 Complaint, para. 4.
n1 26 U.S.C. § 7521(b), part of the Omnibus Taxpayer Bill of Rights, provides in relevant part:
(1) Explanations of Processes.-- An officer or employee of the Internal Revenue Service shall before or at an initial interview provide to the taxpayer --
I. Plaintiffs' Claim for an Injunction
[N]o 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.
n2 The statutory exceptions to the Anti-Injunction Act are 26 U.S.C. § § 6212(a) and (c), 6213(a), 6672(b), 6694(c), 7426(a) and (b)(1), and 7429(b), and do not apply in this case.
n3 26 U.S.C. § § 6212, 6213. While this option still requires an assessment of taxes to be made first, it does allow the taxpayer too "litigate first and pay, if necessary, later." See Laino v. United States, 633 F.2d 626, 629 (2d Cir. 1980).
n4 26 U.S.C. § 7422; 28 U.S.C. § 1346(a)(1).
n5 28 U.S.C. § 1491.
II. Plaintiffs' Claim for Damages
In addition to an injunction, the Tuccios seek damages in the amount
of $ 15,000. They appear to believe that 26 U.S.C. section 7430 empowers
this Court to award reasonable litigation costs in any civil proceeding
brought against the United States under the Internal Revenue Code.
The Tuccios also appear to claim that, in a case in which the IRS has caused a taxpayer hardship, the Omnibus Taxpayer Bill of Rights creates a cause of action in federal court for the recovery of money. The portion of the Omnibus Taxpayer Bill of Rights that refers to taxpayer hardship is codified at 26 U.S.C. section 7811. That provision states that taxpayers who are "suffering or [are] about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered," may apply for a Taxpayer Assistance Order through the Office of Ombudsman.
While section 7811(a) does allow taxpayers facing "significant hardship" as a result of IRS activities to apply for relief, that provision does not authorize a suit for damages. Accordingly, plaintiffs' claim for damages also fails.
For all the foregoing reasons, defendants' motion to dismiss pursuant [*7] to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) is granted.