Hodges v. United States of America Internal Revenue Service et al

Filing 10

ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Clay D. Land on 04/10/2013.(aaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
LEVI HODGES,

*

Plaintiff,

*

vs.

*
CASE NO. 3:12-CV-150 (CDL)

UNITED STATES
KELLY TAYLOR,

OF

AMERICA

and *
*

Defendants.
*
O R D E R
This action arises from

a

levy

by the Internal Revenue

Service (“IRS”) in 2011 on property owned by Plaintiff

Levi

Hodges (“Hodges”) in Lavonia, Georgia for taxes that were due
for the years 2001 through 2007.

Based on the allegations in

Hodges’s pro se Complaint and the exhibits filed with it, it is
undisputed

for purposes of this action

that Hodges

owed the

taxes upon which the levy was based and that he received the
required notices of the intent to levy.

Nevertheless, Hodges

filed a Complaint asserting claims against the United States of
America (“the Government”) and Kelly Taylor, a tax collection
agent,

contending

that

the

IRS

engaged

in

unauthorized

procedurally improper tax collection activities.
filed

a

Motion

to

Dismiss

response to this motion,

the

Complaint

Hodges abandoned

(ECF

and

The Government
No.

all of

3).

In

his claims

except for those against the Government relating directly to the

alleged

procedural

deficiencies

of

the

IRS’s

collection

activities.

For the following reasons, the Court grants the

Government’s

motion

to

dismiss

Hodges’s

remaining

claims

pursuant to Federal Rule of Civil Procedure 12(b)(6).
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must

accept

complaint

as

and

true

all

facts

limit

its

consideration

exhibits attached thereto.

set

forth
to

in

the

the

plaintiff’s

pleadings

and

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959

(11th

Cir.

2009).

“To

survive

a

motion

to

dismiss,

a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly,

550

U.S.

at

570).

The

complaint

must

include

sufficient factual allegations “to raise a right to relief above
the

speculative

level.”

Twombly,

550

U.S.

at

555.

“[A]

formulaic recitation of the elements of a cause of action will
not do[.]”

Id.

Although the complaint must contain factual

allegations that “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims, id. at 556,
“Rule

12(b)(6)

does

not

permit

dismissal

of

a

well-pleaded

complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,

2

495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
DISCUSSION
A

taxpayer

failure

to

follow

intent to levy.
(11th

Cir.

waiver

can

of

sue

the

proper

Government

procedures

in

based

on

issuing

a

the

IRS’s

notice

of

See Stoecklin v. United States, 943 F.2d 42, 43

1991)

(stating

sovereign

that

immunity,

pursuant
“a

to

taxpayer

the
may

Government’s
challenge

the

procedural validity of a federal tax lien under [28 U.S.C.] §
2410.”).
lawsuit

Significantly, however, a taxpayer may not bring a
to

assessment.

challenge
Id.

To

the
the

validity
extent

of

the

Hodges’s

underlying
remaining

tax

claims

purport to assert claims challenging the validity of the tax
assessments against him, those claims are dismissed for lack of
subject matter jurisdiction.
Hodges’s remaining claims attack the IRS’s alleged failure
to follow proper procedures in issuing notices of intent to levy
and collecting the taxes he owed.
No. 1.

Compl. ¶¶ 54-56, 64, 66, ECF

Hodges argues that the IRS had no legal authority to

institute collection and levy proceedings against him because he
is not a person subject to collection under the Internal Revenue
Code,

26 U.S.C.

§

6331,

Compl.

¶ 54; he is not subject to

collection proceedings because he is not under contract with the
Government, id. ¶ 56; and, the IRS does not have authority to

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collect

unpaid

income

taxes

from

him,

id.

¶

66.

Hodges’s

arguments are frivolous.
Section 6331 authorizes the IRS to collect taxes from “any
person liable to pay any tax.”

See 26 U.S.C. § 6331(a) (“If any

person liable to pay any tax neglects or refuses to pay the same
. . . it shall be lawful for the Secretary to collect such tax .
. . by levy upon all property and rights to property . . .
belonging to such person”); 26 U.S.C. § 7701(a)(11)(B), (12)
(defining “Secretary” as a delegate of
Treasury,

including

authorized

the Secretary of the

agencies

such

as

the

IRS).

Hodges is clearly subject to collection by IRS levy for failure
to pay taxes due.

Hodges’s Complaint and its exhibits establish

that Hodges owed taxes, that he received notice of the intent to
levy, and that the levy was carried out within the requirements
of the law.

His general allegation that the IRS misapplied the

law

is

to

him

simply

wrong.

Moreover,

he

has

alleged

no

specific facts to support his conclusory allegation that the law
was misapplied.
rights

were

Finally, Hodges’s argument that his due process

violated

because

he

did

not

receive

a

civil

complaint, a probable cause hearing, or an order or judgment
from

a

court

before

Compl. ¶¶ 30, 32-33.

the

IRS

made

the

levies

is

meritless.

The IRS did not institute a civil action

to collect Hodges’s unpaid taxes.

Instead, the IRS collected

the taxes by levy as authorized under 26 U.S.C. § 6331.

4

Hodges

has simply failed to state any claim upon which relief may be
granted, and consequently, the remaining claims that he did not
abandon must be dismissed.
CONCLUSION
For the reasons explained in this Order, the Court grants
the Government’s Motion to Dismiss (ECF No. 3) and dismisses
Hodges’s Complaint in its entirety.
IT IS SO ORDERED, this 10th day of April, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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