Blanchette v. Department of the Treasury et al

Filing 27

Judge Richard G. Stearns: ORDER entered granting 24 Motion for Summary Judgment (Zierk, Marsha) (Main Document 27 replaced on 10/8/2014) (Flaherty, Elaine).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-10341 -RGS
DENNIS A. BLANCHETTE
v.
UNITED STATES OF AMERICA
MEMORANDUM ON DEFENDANT UNITED STATES’ MOTION FOR
SUMMARY JUDGMENT
October 8, 2014
STEARNS, J.
Plaintiff Dennis Blanchette sued the United States1 alleging that,
between 2009-2012, the United States, through the Department of
Treasury, Internal Revenue Service (IRS), confiscated all of his monthly
Social Security Administration (SSA) benefits, and roughly one half of his
retirement pension, causing him dire financial hardship.

He seeks

$12,000,000 in damages from the United States Government.2 The United
States maintains that the IRS assessed and collected federal income tax due

Blanchette refers to defendant in the caption of the Complaint as
“Department of the Treasury; Internal Revenue Service, Frank Enaire, IRS
Revenue Officer; Collectively, United States, a Fiction-At-Law.”
1

Blanchette previously filed a related case against the SSA, seeking
$3,000,000 in damages, that was dismissed for, among other reasons, lack
of subject matter jurisdiction. See case no. 13-12655-RGS (D. Mass. 2014),
Dkt. #16.
2

and owing from Blanchette in a manner permitted by the Internal Revenue
Code, and that his claims are barred by the Doctrine of Sovereign
Immunity.
On August 29, 2014, the United States filed a motion for summary
judgment3 together with sworn declarations from IRS employees Frank
Enaire, John Carroll, and Donna Czelowalnik, along with transcripts of
assessment and copies of correspondence between the IRS and Blanchette.
The United States alleges that the IRS complied with all applicable statutes
and regulations in assessing Blanchette’s federal income tax liability for the
tax years 1998-2003 and 2005-2011, after Blanchette failed to file tax
returns or pay any tax for those years despite earning substantial income
(as evidenced by third-party information returns such as 1099’s), and after
Blanchette refused to respond to years of IRS demand notices. The United

Since Blanchette filed the Complaint on February 18, 2014, both
parties have requested multiple extensions of the dispositive motions
deadline (originally set for July 15, 2014). On August 22, 2014, the court
granted a final extension to August 29, 2014, noting that it would not
entertain any further motions for extension without good cause. On August
29, 2014, the United States filed a motion for summary judgment. Dkt.
#24. The court denied Blanchette’s subsequent motion for a thirty day
extension of time to obtain counsel, noting the lack of any explanation for
Blanchette’s failure to retain counsel previously. It has been over thirty
days since the United States’ motion for summary judgment was filed, and
Blanchette has failed to respond to the motion.
3

2 

States also asserts that the IRS has complied with all applicable statutes
and regulations in initiating the forced collection of the amounts owing.4
As a sovereign entity, the United States may not be sued in the state
or federal courts absent a waiver of immunity. Any claim of waiver will be
strictly construed in favor of the United States. Cascone v. United States,
370 F.3d 95, 102 (1st Cir. 2004). Blanchette in his Complaint neither
invokes a statutory waiver, nor alleges facts that might be construed to
create one by implication. The only statute that operates to waive the
immunity of the United States in suits seeking damages for improper tax
collection is 26 U.S.C. § 7433.5 See id. at § 7433(a) (“Except [for a failure to
release a recorded lien], [a section 7433] action shall be the exclusive
remedy for recovering damages resulting from [certain unauthorized
collection actions].”). Blanchette does not aver that the IRS levied for
liabilities that he did not legally owe, nor does the Complaint contain any
specific facts from which one could reasonably infer the elements of a

The United States notes that the IRS complied with 26 U.S.C. 6334
in calculating the amount of Blanchette’s monthly retirement income that is
exempt from administrative levy. The United States further notes that the
levy was instituted only after years of serving Blanchette with demands for
payment and notices of intent to levy, in accordance with 26 U.S.C. § 6331,
in addition to telephoning and visiting Blanchette’s home in an attempt to
resolve his tax debts through means other than forced collection.
4

Blanchette is aware of this statute as he referenced it in the case that
he brought against the SSA.
5

3 

plausible claim that an unauthorized collection action took place. Further,
Blanchette has not pled facts that could, even charitably, be construed as
meeting the elements of section 7433 (which includes an exhaustion of
administrative

remedies

requirement

(section

7433(d)(1))

and

a

requirement that the action be brought within two years from the date the
right of action accrued (section 7433(d)(3)).
ORDER
For the foregoing reasons, the United States’ motion for summary
judgment is ALLOWED. The Clerk will enter judgment for the United
States and close the case.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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