Jones v. Internal Revenue Service et al

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; granting 4 Motion to Dismiss for Lack of Jurisdiction; finding as moot 10 Motion for Summary Judgment; finding as moot 11 Motion for Leave to File; adopting Findings and Recommendations re 15 Findings and Recommendations. Signed by Judge Dana L. Christensen on 10/26/2012. (CRM, ) Modified on 10/26/2012 to indicate copy mailed to Stanley R. Jones - P.O. Box 6202- 234 E. Babcock St. - Bozeman, Mt. 59771 (CRM, ).

IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF MONTANA

OCT 262012

BUTTE DIVISION

u.s Dtstrk:I Court

District Of Montana

Missoula

Cieri<,

STANLEY R. JONES,
Plaintiff,
vs.
INTERNAL REVENUE SERVICE,
et aI.,
Defendants.

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CV 12-00022-BU-DLC
ORDER

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Plaintiff Stanley R. Jones filed a Complaint on March 27, 2012, challenging
Internal Revenue Service ("IRS") levies to collect delinquent income taxes. (Doc.
15 at I,) The IRS's Motion to Dismiss for Lack of Jurisdiction is pending. (Doc.
4.) United States Magistrate Judge Carolyn Ostby entered Findings and
Recommendations on August 1,2012. (Doc. 15.) Judge Ostby recommended the
IRS's Motion to Dismiss be granted, Jones's Motion for Summary Judgment and
Motion to Exceed Word Limit for Brief be denied as moot, Jones's Complaint be
dismissed, and judgment in favor of Defendant be entered. (Doc. 15 at 5.)
Jones timely objected and is therefore entitled to de novo review of the
specified findings or recommendations to which he objects. 28 U.S.C. § 636(b)(I).
The portions of the Findings and Recommendations not specifically objected to

will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the reasons stated below,
this Court adopts Judge Ostby's Findings and Recommendations in full. Because
the parties are familiar with the procedural and factual background of this case, it
will not be restated here.
Jones's claims are barred by the doctrine of sovereign immunity. Jones's
arguments that he is not a taxpayer and that income should be narrowly defined are
frivolous and meritless.

1.

Sovereign Immunity

Jones fails to demonstrate any waiver of sovereign immunity made by the
IRS. Instead, he argues that the doctrine of sovereign immunity is unconstitutional
and that Congress waived most of the federal government's sovereign immunity
under the Federal Tort Claims Act. (Doc. 16 at 16.) He cites no authority to
support these arguments.
The United States is immune from suit unless it consents to be sued.

u.s. v.

Sherwood, 312 U.S. 584, 586 (1941). The Federal Tort Claims Act ("FTCA") only
waives sovereign immunity in claims "based on death, personal injury, or damage
to, or loss of, property caused by negligent or wrongful acts or omissions by the
United States or its employees acting within the scope of their employment." 32
C.F.R. § 536.84(a). The FTCA is inapplicable here. Because there has been no
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waiver of sovereign immunity, this Court does not have jurisdiction over Jones's
claims.
II.

Plaintiff as a Taxpayer

The argument that Jones is not a taxpayer is unsupported by legal authority.
Jones misreads 26 U.S.C. § I, which clearly establishes groups subject to tax,
including not only partnerships but married individuals, heads of households, and
unmarried individuals. 26 U.S.C. § 1(a)-(c). In Economy Plumbing and Heating
Co. v. United States, 470 F.2d 585 (Ct. Cl. 1972), on which Jones relies for his

broad contention that "some parties are not 'taxpayers'" (doc. 16 at 10), the court
determined the plaintiffs were "not taxpayers in this case with respect to these
funds," not that they were not taxpayers with regard to any funds. 470 F.2d at
585.
Despite Jones's arguments to the contrary, the Tax Court would have had
jurisdiction over his claims (26 U.S.C. § 6330(d», and he would have received due
process had he filed in that court since he is a taxpayer.
Jones's arguments are without merit and are frivolous. U.S. v. Studley, 783
F.2d 934, 937 (9th Cir. 1986). An individual, including Jones, "is a 'person' under
the Internal Revenue Code" and is subject to Title 26. [d.

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III.

Definition of Income

Jones's reliance on Eisner v. Macomber and Brushaber v. Union Pacific

Railroad Co. is misplaced. The Supreme Court has abandoned "the attempt at an
all-inclusive definition of income which it had undertaken in Eisner." Prescott v.

Commr., 561 F.2d 1287, 1293 (8th Cir. 1977). The Supreme Court has stated the
Eisner definition "was not meant to provide a touchstone to all future gross income
questions." Commr. v. Glenshaw Glass Co., 348 U.S. 426, 430-431 (1955). Gross
income is broadly defined as "all income from whatever source derived." 26
U.S.C. § 61. Jones's argument to the contrary is meritless. The Ninth Circuit
cases cited by Judge Ostby are consistent with this definition of income.
In Brushaber, the Supreme Court noted "the 'whole purpose' of the
Sixteenth Amendment. .. was 'to relieve all income taxes when imposed from
apportionment from a consideration of the source whence the income was
derived.'" Sortillon v. Commr., 38 T.C.M. (CCH) 1097 (1979), citing Brushaber

v. Union Pacific Railroad Co., 240 U.S. 1, 18 (1916). Since the ratification of the
Sixteenth Amendment, whether an income tax is a direct or indirect tax is
immaterial. Id.
Jones's claims are barred by the doctrine of sovereign immunity. Jones's
frivolous and meritless arguments fail to address this underlying issue of
jurisdiction.
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There is no clear error in Judge Ostby's remaining analysis. Accordingly,
IT IS HEREBY ORDERED:
1.

Judge Ostby's Findings and Recommendations (doc. 15) are adopted

in full.
2.

Defendant's Motion to Dismiss for Lack ofJurisdiction (doc. 4) is

granted.
3.

Jones's Motion for Summary Judgment (doc. 10) and Motion to

Exceed Word Limit for Brief (doc. 11) are denied as moot.
4.

Jones's Complaint (doc. 1) is dismissed with prejudice. The Clerk of

Court is directed to close this matter and enter judgment in favor of the
Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure.

DATED this

Lb

+h
day of October 2012.

oan~~/h!itftfl.JUdg,

United States District Court

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