United States of America v. Smith

Filing 19

ORDER denying 14 Defendant's Motion to Dismiss. Signed by Judge David G Campbell on 3/22/11.(LSP)

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United States of America v. Smith Doc. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Robert F. Smith, Sr., Defendant. ) ) ) ) ) ) ) ) ) ) No. CV10-2358 PHX DGC ORDER Pro se Defendant Robert F. Smith, Sr. moves to dismiss Plaintiff United States' claim for a tax judgment. Doc. 14. Plaintiff opposes (Docs. 15, 16), and Defendant has not filed a reply. The motion is ripe, and the parties have not requested oral argument. For the reasons below, the Court will deny the motion. Defendant argues that this action was commenced in violation of 26 U.S.C. 7401 and 7403 because the requisite approval of the Secretary of the Treasury and the Attorney General or his delegate does not or may not exist. See Doc. 14. To the extent the procedural requirements of 7401 and 7403 are jurisdictional, the action may be dismissed if a defendant brings "evidence to counter the normal presumption of regularity that attaches to the actions of public officers." See Palmer v. U.S. Internal Revenue Serv., 116 F.3d 1309, 1311 (9th Cir. 1997). Defendant proffers that he sent letters to six government officials and agencies requesting proof of authorization, and that no one has responded. Doc. 14 at 3-6. Such silence certainly does not satisfy Defendant's burden of producing evidence to counter the presumption of regularity in this case. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, Plaintiff has presented a letter from the Department of the Treasury to the Department of Justice stating that action to collect against Defendant's debt should proceed, and that although Defendant does not possess significant assets he is "currently involved in a wrongful death lawsuit and may recover damages sufficient to pay off" his debt to the United States. Doc. 15-2. Plaintiff also presented an affidavit from Plaintiff's counsel asserting that Department of Justice files contain a letter "indicating that the Attorney General has directed the action to be commenced" (Doc. 15-1 at 2) and has attached the letter as an exhibit (Doc. 15-7). Defendant has not filed a reply and proffers no evidence to rebut the government's exhibits. Defendant has failed to meet his burden of rebutting the presumption of regularity surrounding the commencement of this action. IT IS ORDERED that Defendant's motion to dismiss (Doc. 14) is denied. DATED this 22nd day of March, 2011. -2-

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