United States of America v. Wicks et al
ORDER denying 10 Motion to Dismiss. Signed by U. S. District Judge Jeffrey L. Viken on 11/21/11. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
DENNIS R. WICKS;
FRANK C. OZAK, and
M. DEAN JORGENSEN, as trustees
of FREDA JOHNSON TRUST,
The government filed a civil complaint against defendants to
(1) reduce to judgment federal tax assessments against Dennis R. Wicks;
(2) obtain a judicial determination that Dennis Wicks has an ownership
interest in and to foreclose federal tax liens against two real properties in
Custer County, South Dakota; (3) set aside fraudulent conveyances made by
defendant Wicks; and (4) have the proceeds from the foreclosure sales
distributed as directed by the court. (Docket 1). Defendant Wicks filed a
motion to dismiss the complaint. (Docket 10). Briefing is complete and the
motion is ripe for resolution.
In lieu of filing an answer, Defendant Wicks filed a motion to dismiss
for lack of subject matter jurisdiction. (Docket 10, p. 1). The motion was
filed in propria persona.1 Id. Defendants Frank C. Ozak and M. Dean
Jorgensen, as trustees of Freda Johnson Trust, have neither filed an answer
nor joined in Mr. Wick’s motion.
As a preliminary matter, the court must address the issue of Mr.
Wicks’ relationship to the other defendants. It is unclear from Mr. Wicks’
motion whether he perceives the motion to be filed on behalf of the other
defendants. The law is clear that Mr. Wicks, as a non-lawyer, may not do
so. 28 U.S.C. § 1654 provides:
In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules
of such courts, respectively, are permitted to manage and conduct
Without variance, every federal appeals court allows an individual, as a
defendant, to proceed pro se under § 1654. “As a general matter of federal
law, an individual proceeding in federal court has the right to present his
case pro se . . . .” Leftridge v. Connecticut State Trooper Officer No. 1283,
640 F.3d 62, 67 (2d Cir. 2011) (referencing 28 U.S.C. § 1654). However, it is
undisputed law “for the better part of two centuries . . . that a corporation
may appear in the federal courts only through licensed counsel.” Rowland
In propria persona is “a procedure in which, under former rules, one
challenging the jurisdiction of a court represent[s] himself because an attorney
was an officer of the court and was presumed to have obtained leave of court in
order to plead which admitted jurisdiction.” United States v. Schiefen, 926 F.
Supp. 877, 879 n. 3 (D.S.D. 1995) (citing Black’s Law Dictionary, 792 (6th ed.
v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02
(1993). Courts have uniformly held “that 28 U.S.C. § 1654 . . . does not
allow corporations, partnerships, or associations to appear in federal court
otherwise than through a licensed attorney.” Id. at 202. A non-lawyer may
not represent a corporation in federal court. Steele v. City of Bemidji, 257
F.3d 902, 905 (8th Cir. 2001). See Knoefler v. United Bank of Bismarck, 20
F.3d 347, 348 (8th Cir. 1994) (“A nonlawyer, such as these purported
‘trustee(s) pro se’ has no right to represent another entity, i.e., a trust, in a
court of the United States.”); Joshua Building Trust v. Clementi, 78 F.3d
588 (8th Cir. 1996) (Table) (“A non-lawyer trustee may not represent a trust
pro se in federal court.”). See also Lattanzio v. COMTA, 481 F.3d 137,
139-40 (2d Cir. 2007) (“[A] layperson may not represent a separate legal
entity such as a corporation. . . . We have extended this reasoning to
partnerships and single shareholder corporations, as well as to shareholders
who file derivative suits. . . .” (citing Rowland, 506 U.S. at 202 (other
internal citations omitted); United States v. 9.19 Acres of Land, More or
Less, in Marquette County, Michigan, 416 F.2d 1244, 1245 (6th Cir. 1969)
(“The United States District Court was clearly correct in ruling that a
corporate president may not represent his corporation before a federal
court. 28 U.S.C. § 1654 . . . .”); Turner v. American Bar Ass’n, 407 F. Supp.
451 (N.D. Tex. 1975), aff’d, 539 F.2d 715 (Table), aff’d, 542 F.2d 56 (Table)
(corporations and partnerships must be represented by licensed counsel).
While Mr. Wicks is entitled to represent himself, he is not permitted to
represent the other defendants. As trustees of a trust, these defendants
may only make an appearance in federal district court through a licensed
attorney admitted to practice in this court. Knoefler, 20 F.3d at 348;
Joshua Building Trust, 78 F.3d at 588. For these reasons, the court will
only consider Mr. Wicks’ motion as personal to him.
Mr. Wicks argues that since “the office of the Secretary [of the
Department of the Treasury]” failed to respond to Mr. Wicks’ written
demands for proof of the tax assessments and other information, the court
lacks subject matter jurisdiction. (Docket 10, pp. 1-6). He argues “in the
absence of a record that any assessment was ‘made by recording the
assessment in the office of the Secretary,’ in accordance with 26 U.S.C.
§ 6203, ‘in the District of Columbia, and not elsewhere,’ in accordance with
4 U.S.C. § 72, there is no assessment.” Id. at p. 7 (emphasis in original).
“The lack of any record made in accordance with 44 U.S.C. § 3101, of any
‘assessment’ purported to have been made in accordance with 26 U.S.C.
§ 6203, and 4 U.S.C. § 72, deprives this Court of subject-matter jurisdiction
. . . and this case must be dismissed with prejudice.” Id. at p. 9 (emphasis
The premise of his argument is 26 U.S.C. § 7801(a)(1) places “the
administration and enforcement of [the Internal Revenue Code] . . . under
the supervision of the Secretary of the Treasury.” (Docket 10, ¶ 2). Mr.
Wicks fails to acknowledge or recognize the enforcement of the Internal
Revenue Code rests with the Attorney General of the United States. See
26 U.S.C. § 7801(a)(2).
Mr. Wicks is entitled to copies of his tax returns and the assessments.
26 U.S.C. §§ 6103 and 6203. Without supporting proof or legal authority,
Mr. Wicks claims enforcement of the collection provisions of the Internal
Revenue Code is prohibited because the “Secretary” never provided him with
copies of his tax assessments. (Docket 10, pp. 5-6). Mr. Wicks claims an
alleged failure of the Secretary of the Department of the Treasury to
personally produce documents in response to his 2010 Freedom of
Information Act (“FOIA”) request, deprives the court of subject matter
jurisdiction. Id. at pp. 8-9. Mr. Wicks suggests a regional or local IRS office
production of his records fails as a matter of law. This is a disingenuous
and frivolous argument.
Dismissal for lack of subject matter jurisdiction is governed by the
Federal Rules of Civil Procedure. “[A] party may assert the following
defenses by motion: (1) lack of subject-matter jurisdiction . . . .” Fed. R. Civ.
P. 12(b)(1). “The existence of subject-matter jurisdiction is a question of law
. . . .” ABF Freight System, Inc. v. International Brotherhood of Teamsters,
645 F.3d 954, 958 (8th Cir. 2011).
“A court deciding a motion under Rule 12(b)(1) must distinguish
between a ‘facial attack’ and a ‘factual attack.’ ” Osborn v. United States,
918 F.2d 724, 729 n. 6 (8th Cir. 1990) (citing Menchaca v. Chrysler Credit
Corporation, 613 F.2d 507, 511 (5th Cir. 1980); Mortensen v. First Federal
Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977)).
In a facial attack, “the court restricts itself to the face of the pleadings
. . . and the non-moving party receives the same protections as it would
defending against a motion brought under Rule 12(b)(6).” Id. (internal
citations omitted). “The general rule is that a complaint should not be
dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.’ ” Id. (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (additional internal citation
“In a factual attack, the court considers matters outside the pleadings
. . . and the non-moving party does not have the benefit of 12(b)(6)
safeguards.” Id. (internal citation omitted). “When a district court engages
in a factual review, it inquires into and resolves factual disputes.” Faibisch
v. University of Minnesota, 304 F.3d 797, 801 (8th Cir. 2002). “Any findings
of fact made by the district court are reviewed for clear error.” Id. “Because
at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction–its very
power to hear the case–there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case.” Osborn, 918 F.2d at 730. “In short, no presumptive
truthfulness attaches to the plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims. Moreover, the plaintiff will have the
burden of proof that jurisdiction does in fact exist.” Id. “If the defendant
thinks the court lacks jurisdiction, the proper course is to request an
evidentiary hearing on the issue. [Defendant’s] motion may be supported
with affidavits or other documents.” Id. (internal citation omitted).
The complaint asserts jurisdiction under 28 U.S.C. §§ 1340 and 1345,
and 26 U.S.C. §§ 7402 and 7403 of the Internal Revenue Code. (Docket 1,
p. 1). Those sections provide in pertinent part, the following:
The district courts shall have original jurisdiction of any civil
action arising under any Act of Congress providing for internal
revenue . . . . [28 U.S.C. § 1340];
Except as otherwise provided by Act of Congress, the district
courts shall have original jurisdiction of all civil actions, suits or
proceedings commenced by the United States, or by any agency or
officer thereof expressly authorized to sue by Act of Congress.
[28 U.S.C. § 1345];
The district courts of the United States at the instance of the
United States shall have such jurisdiction to make and issue in
civil actions, . . . and to render such judgments and decrees as
may be necessary or appropriate for the enforcement of the
internal revenue laws. The remedies hereby provided are in
addition to and not exclusive of any and all other remedies of the
United States in such courts or otherwise to enforce such laws.
[26 U.S.C. § 7402(a)]; and
In any case where there has been a refusal or neglect to pay any
tax, or to discharge any liability in respect thereof, whether or not
levy has been made, the Attorney General or his delegate, at the
request of the Secretary, may direct a civil action to be filed in a
district court of the United States to enforce the lien of the United
States under this title with respect to such tax or liability or to
subject any property, of whatever nature, of the delinquent, or in
which he has any right, title, or interest, to the payment of such
tax or liability. [26 U.S.C. § 7403(a)].
“The district court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1340 (original jurisdiction of civil action arising under any Act of
Congress provision for the Internal Revenue), 1345 (original jurisdiction of
all civil actions, suits, or proceedings commenced by the United States), and
26 U.S.C. § 7402 (action to reduce to judgment tax assessments and
foreclose tax liens against property).” United States v. Scherping, 187 F.3d
796, 798 (8th Cir. 1999).
If defendant Wicks’ attack on subject matter jurisdiction is a facial
attack, the complaint should not be dismissed, because the court cannot
conclude “beyond doubt that the plaintiff can prove no set of facts in
support of [its] claim which would entitle [it] to relief.” Osborn, 918 F.2d at
729 n. 6 (internal citation omitted). If defendant Wicks’ attack on subject
matter jurisdiction is a factual attack, the court must review the record and
determine whether the facts support subject matter jurisdiction. “Because
jurisdiction is a threshold question, the court may look outside the
pleadings in order to determine whether subject matter jurisdiction exists.”
Riley v. United States, 486 F.3d 1030, 1032 (8th Cir. 2007) (internal citation
and quotation marks omitted).
Based on the record, the court makes the following limited factual
determinations. First, Mr. Wicks offered only his FOIA request letter as
evidence to support the motion. See Docket 10-1. Second, Mr. Wicks did
not request a hearing, nor does he suggest what additional evidence would
be presented if a hearing on the motion to dismiss were held. Third, the
government presented the certificates of official records as certifications of
assessments and payments for the tax years ending December 31, 2001,
and December 31, 2002. (Docket 11-1).
Certificates of an official record of an agency of the United States
qualify as a public record under Fed. R. Evid. 1005. “The contents of an
official record . . . including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in accordance with
[R]ule 902 . . . .” Fed. R. of Evid. 1005. These certificates qualify as selfauthenticating domestic public documents because they “bear a seal . . . of
the United States . . . and [contain] a signature purporting to be an
attestation.” Fed. R. of Evid. 902(1).
“Certificates of Assessments and Payments submitted by the
government . . . are sufficient to establish the validity of the assessments.”
United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993). Defendant
Wicks’ argument the Treasury certificates are not proper evidence for
consideration by the court is without merit.
Without determining whether these particular certificates are valid for
purposes of converting them to a money judgment in favor of the
government, since Mr. Wicks had not yet filed an answer and the court has
not yet been requested to resolve any dispute regarding them, the
certificates provide a proper basis for subject matter jurisdiction. Fed. R.
Evid. 1005; 26 U.S.C. §§ 7402(a) and 7403(a). “The Commissioner’s
determination of a tax deficiency is presumptively correct, and the taxpayer
bears the burden of proving that the determination is arbitrary or
erroneous.” Day v. Commissioner of the Internal Revenue Service, 975 F.2d
534, 537 (8th Cir. 1992) (citing United States v. Janis, 428 U.S. 433, 440-41
(1976); Mattingly v. United States, 924 F.2d 785 (8th Cir.1991)). See also
Caulfield v. Commissioner of the Internal Revenue Service, 33 F.3d 991, 993
(8th Cir. 1994) (“A presumption of correctness normally attaches to the
Commissioner’s assessment of a tax deficiency.”).
Even if the court accepts Mr. Wicks’ factual assertion as true that the
Secretary did not properly respond to his FOIA request, that fact would not
defeat the court’s subject matter jurisdiction. This collateral fact would be
irrelevant and immaterial to the court’s authority to exercise subject matter
jurisdiction over the government’s request for a money judgment and
enforcement of its tax liens. 26 U.S.C. §§ 7402(a) and 7403(a).
Based on the above analysis, it is hereby
ORDERED that defendant Dennis R. Wick’s motion to dismiss (Docket
10) is denied.
IT IS FURTHER ORDERED that defendant Wicks must file his answer
to the complaint within seventeen days after his notice of entry of this
Dated November 21, 2011.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
Fed. R. Civ. P. 12(a)(4)(A) requires the responsive pleading to be filed
within fourteen days after denial of a motion to dismiss. The court is allowing
an additional three days for mailing and receipt of a copy of this order by Mr.