Lunnon et al v. United States of America
Filing
276
ORDER ADOPTING 272 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez GRANTING 247 Motion for Partial Summary Judgment filed by United States of America; DENYING 251 Motion for Summary Judgment filed by Michael Lunnon. See order for specifics. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL LUNNON,
Plaintiff,
vs.
Civ. No. 16-1152 MV/JFR
UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTIONS
AND ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on United States’ Motion for Partial Summary
Judgment on the Section 6213 Action, filed January 19, 2021. Doc. 247. This matter is also
before the Court on Plaintiff’s Motion for Summary Judgment Against the United States, filed
January 21, 2021. Doc. 251. In his Proposed Findings and Recommended Disposition
(“PFRD”), filed July 8, 2021, United States Magistrate Judge John F. Robbenhaar recommended
that the Court grant the United States’ Motion for Partial Summary Judgment, and deny
Plaintiff’s Motion for Summary Judgment. Doc. 272. On July 20, 2021, Plaintiff timely filed
Plaintiff’s Objections to the PFRD (“Objections”) which are now before the Court. Doc. 273.
District courts may refer dispositive motions to a magistrate judge for a recommended
disposition pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1). “Within 14 days after being served with a copy of the
[magistrate judge’s] recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); 28 U.S.C.
§ 636(b)(1). When resolving objections to a magistrate judge’s proposal, “[t]he district judge
must determine de novo any part of the magistrate judge’s disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).
“[A] party’s objections to the magistrate judge’s report and recommendation must be
both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). Further, “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996);
see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit,
theories raised for the first time in objections to the magistrate judge’s report are deemed
waived.”).
The Court has considered the motions, responses, replies, and Plaintiff’s Objections in
light of the foregoing standards, and has conducted a de novo review. Based on this review and
for the reasons discussed below, the Court finds that Plaintiff’s Objections to the Magistrate
Judge’s PFRD are unfounded and thus are overruled.
A.
United States’ Motion for Partial Summary Judgment
The United States moved for summary judgment on what remained of Count II of
Plaintiff’s Amended Complaint in which Plaintiff alleged that
17. Prior to defendant issuing its Notice of Levy, no district director or service
center director had issued any Notice(s) of Deficiency to plaintiff regarding the
claims made, as required under 26 U.S.C. §6212 and 26 C.F.R. § 301.6212-1. Its
forced, levy collection action was in violation of 26 U.S.C. § 6213(a) (no
assessment or collection action allowed absent valid notice of deficiency).
Doc. 104 at 4-5. Plaintiff further alleged in the absence of proper notice that
2
18. 26 U.S.C. § 6213(a) expressly provides for automatic refunds of monies
collected in violation of the statute (“and a refund may be ordered by such court of
any amount collected within the period during which the Secretary is prohibited
from collection by levy . . . under the provisions of this subsection.”)
....
20. Pursuant to 26 U.S.C. § 6213(a), plaintiffs [sic] seek an automatic refund of all
funds taken by defendant, plus any statutory interest. As of the date of this
Complaint, defendant has collected $70,538.80 (on a levy notice which alleged only
$44,528.81 was purportedly due).
Doc. 104 at 4-5.
In the PFRD, the Magistrate Judge began his analysis by determining whether the IRS
provided sufficient evidence that notices of deficiency for the tax years 1998, 1999, and 2005
existed and were properly mailed to Plaintiff as required by 26 U.S.C. § 6212. Doc. 272 at 10.
Having found that the IRS met its burden and that Plaintiff had offered no evidence in rebuttal,
the Magistrate Judge found that no reasonable factfinder could find that Plaintiff had carried his
burden of proving that the IRS collected funds in violation of the provisions of 26 U.S.C.
§ 6213(a). Id. at 17-25. Because Plaintiff was not entitled to a refund, the Magistrate Judge did
not address whether Plaintiff had legal standing to seek a refund of the funds that he alleged were
improperly levied from his alter ego LG Kendrick.
Plaintiff objects to the Magistrate Judge’s findings that the IRS met its burden of
establishing both the existence and proper mailing of notices of deficiency for the tax years 1998,
1999, and 2005. Doc. 272 at 1-4. Plaintiff argues that controlling Tenth Circuit authority,
Cropper v. Comm’r of Internal Revenue, 826 F.3d 1280 (10th Cir. 2016), mandates that the IRS
is only entitled to a rebuttable presumption of proper mailing when it (1) establishes the
existence of a notice of deficiency and (2) produces a properly completed PS Form 3877
certified mail log. Id. Plaintiff further argues that when the government fails to meet the
3
requirements of this rebuttable presumption, the court’s reliance on “otherwise sufficient”
evidence is only applicable in the face of a deficient, as opposed to missing, PS Form 3877. Id.
Plaintiff contends that the United States failed to produce copies of notices of deficiency or PS
Forms 3877 for the tax years 1998 and 1999, and failed to produce a PS Form 3877 for the tax
year 2005.1 2 Id. In the absence of this specific evidence, therefore, Plaintiff asserts that the
In a footnote, Plaintiff asserts that Cropper also addressed whether the “last known address”
was used in any deficiency notice and that here there is no evidence regarding what mailing
address may have been used for the years 1998 or 1999, or that the address used on the 2005
notice was his “last known address.” Doc. 273 at 3 n.1. In Cropper, the Tenth Circuit noted that
the IRS must send a deficiency notice to the taxpayer's “last known address” by certified mail or
registered mail before it assesses liability for unpaid taxes. 826 F.3d at 1285 (citing 26 U.S.C. §
6212(a), (b)(1)). The court further noted that the IRS satisfies this obligation if it mails the
notice “to the taxpayer’s last known address, even if the taxpayer does not actually receive the
notice.” Id. (citing Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir. 1992); see also Tatum v.
Comm’r, 85 T.C.M. (CCH) 1200, 2003 WL 1918914, at *3 n.4 (2003) (noting that IRS satisfies
§ 6212’s mailing requirement by sending notice to taxpayer’s last known address “regardless of
receipt or nonreceipt”)); Mabbett v. Comm’r, 610 F. App’x 760, 763 (quoting Gryorgy v.
Comm’r, 779 F.3d 466, 473 (7th Cir. 2015) (The last known address rule “gives the IRS a safe
harbor by permitting constructive notice where, for instance, the taxpayer has failed to inform the
[IRS] of a change of address. Congress was concerned that requiring actual notice in such cases
would impose an almost impossible burden on the IRS to keep track of every taxpayer’s
whereabouts.”). The Magistrate Judge’s PFRD addressed this issue (Doc. 272 at 19-23) and the
Court finds no fault with his findings. As explained therein, Plaintiff has provided no evidence
whatsoever of what should have been considered his “last known address” within the meaning of
the regulations. See 26 C.F.R. § 301.6212-2(a) (a taxpayer’s last known address is the address
that appears on the taxpayer’s most recently filed federal tax return unless the IRS is given clear
and concise notification of a different address). Moreover, the burden is on Plaintiff to provide
evidence to overcome the presumption that the IRS acted properly under the statute by
complying with the requirement to mail the notices to his last known address. See United States
v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976) (quoting United States v. Chemical Found., Inc.,
272 U.S. 1, 14–15 (1926)) (as a general rule the United States is entitled to “the presumption of
official regularity,” which is that “‘in the absence of clear evidence to the contrary, courts
presume that [public officers] have properly discharged their official duties.’”). Plaintiff has not
done so here. Plaintiff’s argument, therefore, is unfounded and his Objections on this basis to
the Magistrate Judge’s findings are overruled.
1
In a footnote, Plaintiff reargues, without more, that the United States’ inability to retrieve
notices of deficiency for 1998 and 1999 should create an inference that they do not exist. Doc.
273 at 3-4 n.2. The Magistrate Judge’s PFRD addressed this argument and the Court finds no
2
4
Magistrate Judge improperly relied on “otherwise sufficient” evidence to determine that the
United States had met its burden of establishing the existence and proper mailing of notices of
deficiency for the tax years at issue.3 Id.
fault with his findings. See Doc. 272 at 19 n.8. Plaintiff’s argument, therefore, is unfounded and
his Objections on this basis to the Magistrate Judge’s findings are overruled.
In the same footnote, Plaintiff also reargues, without more, that in his Declaration attached to his
Motion for Summary Judgment, he declared that he had not received notices of deficiency of
certified mailing records for the tax years at issue here as part of the United States Rule 26(a)
disclosures, and that under Rule 37(c), the lack of disclosure would bar any attempt to use the
undisclosed deficiency notices (if any actually exist), without substantial justification for the lack
of disclosure. Id. In its Motion for Summary Judgment, however, the United States did not rely
on undisclosed notices of deficiency or certified mailing records for the tax years 1998 and 1999.
To the contrary, the United States conceded that they could not be found. Doc. 272 at 19.
Instead, the United States produced Forms 4340 and provided declaration testimony as evidence
of the existence and proper mailing of the notices of deficiency for 1998 and 1999. Id. at 19-22.
Further, the notice of deficiency for 2005 attached to the United States’ Motion for Summary
Judgment has been part of the record in this case since October 6, 2017 (see Doc. 68-1).
Moreover, the United States did not rely solely on the 2005 notice of deficiency as evidence, but
also provided a Form 4340 and declaration testimony as evidence of the existence and proper
mailing of the notice of deficiency for 2005. Id. at 22-23. As such, any argument regarding the
nondisclosure of the 2005 notice of deficiency pursuant to Rule 26(a) is irrelevant in the face of
otherwise sufficient evidence. Plaintiff’s argument, therefore, is unfounded and his Objections
to the Magistrate Judge’s findings on this basis are overruled.
In a footnote, Plaintiff, without more, reasserts his objections to the declarations that the United
States provided in support of its Motion for Summary Judgment. Doc. 273 at 4 n.3. The
Magistrate Judge’s PFRD fully addressed Plaintiff’s Objections to the Fourth Declaration of
Brenda Garcia and the Attached Exhibits, and the Court finds no fault with his findings. See
Doc. 272 at 12-16. Plaintiff’s argument, therefore, is unfounded and his Objections on this basis
to the Magistrate Judge’s findings are overruled.
3
In the same footnote, Plaintiff argues that the United States provided no argument that the
Certificate of Assessments “are made in violation of the federal Privacy Act (5 U.S.C.
§ 552a(e)(4)), and because of this they cannot be considered any sort of ‘official record.’” Id.
However, Plaintiff raised this issue for the first time in his Reply. See Doc. 264 at 3-5. As such,
it is waived. “The general rule in this circuit is that a party waives issues and arguments raised
for the first time in a reply brief.” See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)
(quoting M.D. Mark, Inc. v. Kerr–McGee Corp., 565 F.3d 753, 768 n. 7 (10th Cir. 2009)).
5
Plaintiff’s narrow interpretation of “otherwise sufficient” evidence is not supported by
Cropper or any other relevant case law. In Cropper, the taxpayer sought judicial review in Tax
Court after disagreeing with the IRS’s Office of Appeals’ determination that notices of tax
deficiency had been properly mailed and that the IRS had met all applicable requirements to
proceed with a levy action. 826 F.3d at 1283-84. The Tax Court sustained the Office of
Appeals’ determination and the taxpayer appealed to the Tenth Circuit. Id. at 1284-85. The
taxpayer argued, inter alia, that the IRS failed to prove that it mailed the deficiency notices as
required by 26 U.S.C. § 6212(a). Id. at 1285. More specifically, the issue was whether a
defective PS Form 3877 precluded a presumption of proper mailing. Id. at 1285-86. The Tenth
Circuit, citing Welch v. United States, 678 F.3d 1371 (Fed. Cir. 2012), explained that even when
the IRS is not entitled to a presumption of mailing due to a defective PS Form 3877, it “may
meet its burden [of proof] with evidence that is ‘otherwise sufficient.’” Cropper, 826 F.3d at
1286 (citing Welch, 678 F.3d at 1377 (quoting O’Rourke v. United States, 587 F.3d 537, 541 (2d
Cir. 2009)). The Tenth Circuit found that the defects in the PS Form 3877 were minor and,
similar to the court’s holding in Welch, explained that the IRS had come forward with other
evidence that the mailing procedures were followed.4 Cropper, 826 F.3d at 1286-87. The Tenth
4
The Tenth Circuit noted:
Specifically, the settlement officer reviewed Cropper’s IRS account transcripts to
verify that the IRS issued deficiency notices before assessing tax liabilities against
Cropper. The officer also confirmed that the IRS used Cropper’s Norwood
address – the address on file with the IRS since 2003 – not only for mailing the
deficiency notices, but also to mail the lien notice, the levy notice, and all
correspondence relating to the CDP hearing. And the officer noted that Cropper’s
IRS account transcripts didn’t reflect that the Postal Service returned as
undeliverable any correspondence mailed to the Norwood address.
826 F.3d at 1286. The court further noted that the administrative record included Forms 4340.
Id. at 1287.
6
Circuit, therefore, affirmed the IRS Office of Appeals’ determination that the IRS had properly
mailed notices of tax deficiency to the taxpayer’s last known address. Id.
The Cropper court’s reliance on the standards set forth in Welch for determining whether
the evidence submitted by the IRS is sufficient to demonstrate timely mailing of a notice of
deficiency is significant and relevant to the facts at issue here. In Welch, the taxpayers
contended that the IRS failed to present evidence that it timely mailed notices of deficiency and,
in particular, that the IRS’s failure to produce a PS Form 3877 or the information contained on
PS Form 3877 in a different format was dispositive. 678 F.3d at 1376. The IRS argued that a PS
Form 3877 was not necessary in all circumstances and that its production of date-stamped
notices of deficiency, certified mail return-receipt cards, and a computer-generated control card
matching the amounts listed on the Forms 4340 was otherwise sufficient to support its contention
that notices of deficiency had been mailed to the appellants. Id. at 1377. The court in Welch
ultimately determined that because the government possessed copies of the notice of deficiency
to demonstrate timely mailing, the government need only produce a completed PS Form 3877 or
otherwise sufficient documentation of certified mailing. Id. at 1379-80. The court determined
that the evidence the IRS submitted in the absence of the PS Form 3877 was “otherwise
sufficient.” Id.
In reaching that determination, and important for our purposes here, the Welch court
discussed other courts’ analyses of the sufficiency of the evidence presented to establish timely
mailing of a notice of deficiency. Id. at 1377-78. Using those decisions for general guidance,
the court structured standards for determining whether evidence submitted by the IRS was
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sufficient to demonstrate the existence and timely mailing of a notice of deficiency. The court
explained:
First, we find that the government bears the burden of proving proper mailing of a
notice of deficiency by competent and persuasive evidence. Butti [v. Comm’r], 95
T.C.M. (CCH) 1321, 2008 WL 898822 at *3 [(2008)]; Coleman [v. Comm’r], 94
T.C. [82] at 90 [(1990)]. Next, where the IRS has (1) established the existence of
a notice of deficiency and (2) produced a properly completed PS Form 3877
certified mail log it is entitled to a presumption of mailing, and the burden shifts to
the taxpayer to rebut that presumption by clear and convincing evidence. See, e.g.,
[United States v.] Ahrens, 530 F.2d [781,] 784-85 [(5th Cir. 1976)]. In the absence
of a properly completed PS Form 3877, where the existence of a notice of
deficiency is not in dispute, the government must come forward with evidence
corroborating an actual timely mailing of the notice of deficiency. The
evidence presented to prove timely mailing may include documentary evidence
as well as evidence of mailing practices corroborated by direct testimony. See
e.g., Byk v. Comm’r, 46 T.C.M. (CCH) 1189 (1983) (explaining that, when a Form
3877 is not available, mailing of a deficiency notice in compliance with I.R.C.
§ 6212(b) may be established “as any other pertinent fact by other competent
evidence such as the testimony of [the IRS’s] agents”). See also Butti, 95 T.C.M.
(CCH) 1321, 2008 WL 898882 at *2; Coleman, 94 T.C. at 90. But that evidence
must directly corroborate the mailing of the specific notice of deficiency at issue
on a date certain.
Where the parties dispute the existence of the notice of deficiency itself, the
government bears the burden of establishing both the existence of the notice
itself, as well as timely mailing of that specific notice. See, e.g., [United States
v.] Zolla, 724 F.2d [808], 810 [(9th Cir. 1984)]; Ahrens, 530 F.2d at 784-86.
Evidence of a mere mailing absent corroboration that the notice of deficiency was
actually created is insufficient to meet the government’s burden. Pietanza [v.
Comm’r], 92 T.C. 729 [(T.C. 1989)]; Butti, 95 T.C.M. (CCH) 1321.
Id. at 1378-79 (emphasis added). Applying these standards here, as the Tenth Circuit did in
Cropper, the Court finds no error in the Magistrate Judge’s PFRD.
As for the 2005 tax year, it is undisputed that the United States produced a copy of the
Notice of Deficiency. Doc. 68 at 2, ¶ 4 (Ex. 1.) Where, as here, the existence of a notice is not
in dispute, and in the absence of a properly completed PS Form 3877, the government must come
forward with evidence corroborating an actual timely mailing of the notice of deficiency. Welch,
678 F.2d at 1278. The evidence presented to prove timely mailing may include documentary
8
evidence as well as evidence of mailing practices corroborated by direct testimony. Id. Here, as
noted in the Magistrate Judge’s PFRD, the IRS produced a Form 4340 for the 2005 tax year,
which is probative evidence in and of itself and “in the absence of contrary evidence, [is]
sufficient to establish that notices and assessments were properly made.” United States v. Meyer,
120 A.F.T.R.2d 2017-5217, 2017 WL 3016761, *4 (2017) (quoting Hansen v. United States, 7
F.3d 137, 138 (9th Cir. 1993) and citing Laeger v. United States, No. 08-1549, 2010 WL
1542173, at *5 (W.D. La. Apr. 12, 2010) (holding that Form 4340 is valid evidence that
government mailed a notice of deficiency)); see also United States v. Stevenson, No. 09-3034,
2010 WL 2490756 (E.D. Pa. June 15, 2010) (finding that the government was able to satisfy its
burden of proper mailing through a Form 4340 that stated “[a]dditional tax assessed by
examination audit deficiency per default of 90 day letter” and through testimony from an IRS
Technical Service Advisor that the Form 4340 shows that each notice of deficiency was sent
more than 90 days prior to the dates of assessment); U.S. v. O’Callaghan, 500 F. App’x 843, 848
(11th Cir. 2012) (explaining that with the submission of a copy of the notice of deficiency in
addition to declaration of an IRS officer explaining the absence of PS Form 3877, the
presumption of regularity controls).
Here, the Form 4340 that the United States produced for 2005 specifically states:
“Additional tax assessed by examination audit deficiency, 90 day letter undeliverable.”5 Doc.
248-2 at 29. In addition, the IRS provided the Declaration of IRS Agent Brenda Garcia, who
declared that the notice of deficiency was mailed by certified mail (Doc. 68 at 2, ¶ 4), and that
according to the Form 4340, “the IRS sent Mr. Lunnon a [Statutory Notice of Deficiency] for the
“The IRS satisfies its obligation to mail a notice of deficiency if the notice is sent to the
taxpayer’s last known address, even if the taxpayer does not actually receive the notice.”
Guthrie v. Sawyer, 970 F.3d 733, 737 (10th Cir. 1992).
5
9
tax year 2005, even though the SNOD was undeliverable.” Doc. 248-2 at 3, ¶¶ 6, 10. The
Magistrate Judge found that the evidence that the United States produced amounted to
“otherwise sufficient” evidence, and that the burden therefore shifted to Plaintiff to show that the
notice of deficiency for 2005 was not mailed. Doc. 272 at 22-23. The Magistrate Judge also
found that Plaintiff presented no evidence to the contrary. Id.
As for the 1998 and 1999 tax years, because the existence of the notices of deficiency are
in dispute, and the United States did not produce PS Forms 3877, the United States bears the
burden of establishing both the existence of the notice itself, as well as timely mailing of that
specific notice. Welch, 678 F.3d at 1379. Here, as noted in the Magistrate Judge’s PFRD, the
United States produced Forms 4340 for both years, in which they indicate that “[a]dditional tax
assessed by examination audit deficiency per default of 90 day letter.” Doc. 248-2 at 5, 17. The
Tenth Circuit recognizes that a Form 4340 is “presumptive[] proof of a valid assessment.”
Cropper, 826 F.3d at 1287 (quoting Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir. 1992)); see
also United States v. Meyer, 914 F.3d 592, 594-95 (5th Cir. 2019) (explaining that there is
“substantial precedent” that Form 4340 is an “appropriate source[] evidencing the IRS’s
assessment and notice of tax arrears.”) (collecting cases)); Rivas v. Comm’r, 113 T.C.M. (CCH)
1268, T.C.M. (RIA) 2017-056, 2017 RIA TC Memo 2017-056 (explaining that Form 4340
satisfies requirement to verify that a valid notice of deficiency was issued to a taxpayer).
Additionally, the United States produced the declaration of IRS Agency Brenda Garcia, who
declared that IRS Integrated Data Retrieval System reports, which were attached, verified that
notices of deficiency for 1998 and 1999 were issued and mailed to Plaintiff. Doc. 68 at 2-3,
¶¶ 5-8. Ms. Garcia further declared that it is standard practice at the IRS that notices of
deficiency are mailed by certified mail to a taxpayer’s last known address. Id.
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In light of the foregoing, the Magistrate Judge found that the evidence produced by the
United States amounted to “otherwise sufficient” evidence to prove the existence and proper
mailing of the notices of deficiency for 1998 and 1999, and that the burden therefore shifted to
Plaintiff to show that the notices of deficiency did not exist and were not mailed. Doc. 272 at
19-22. The Magistrate Judge also found that Plaintiff presented no such evidence to the
contrary. Id. The Court finds no fault with these findings. As such, Plaintiff’s Objections based
on his argument that Tenth Circuit case law mandates the production of a PS Form 3877 before
the Court may consider “otherwise sufficient” evidence to find that notices of deficiency existed
and were properly mailed is not supported. Plaintiff’s Objections, therefore, are overruled.
B.
Plaintiff’s Motion for Summary Judgment
In his Motion for Summary Judgment, Plaintiff sought summary judgment against the
United States on (1) Count II in the Amended Complaint, which seeks a refund under 26 U.S.C.
§ 6213(a); and (2) Count III, which seeks a return for surplus proceeds under 26 U.S.C. 6343 and
6342(b). Doc. 251 at 1.
In his Objections, Plaintiff argues that the Magistrate Judge’s PFRD failed to determine
his right to claim a refund pursuant to § 6213(a), and that he has standing to make the refund
claim. Doc. 273 at 5. Plaintiff also argues that the Magistrate Judge failed to determine what
amounts were taken under the March 2011 Levy and whether the amounts levied were properly
applied, and argues that the March 2011 Levy was continuous and never released once satisfied,
as required. Id. at 5-8.
Plaintiff’s objections are unfounded. Having found that the United States carried its
burden of producing “otherwise sufficient” evidence that notices of deficiency for the tax years
1998, 1999 and 2005 existed and were properly mailed, and that Plaintiff failed to present any
11
evidence to the contrary, the Magistrate Judge found that the IRS did not violate the provisions
of Section 6213(a) when it levied and collected funds pursuant to the March 2011 Levy. Doc.
272 at 26-27. In the absence of any statutory violation as alleged, the Magistrate Judge found
that no reasonable factfinder could find that Plaintiff had carried his burden of proving that the
IRS collected funds in violation of the provisions of 6213(a). Id. Thus, contrary to Plaintiff’s
Objections, the Magistrate Judge found that Plaintiff was not entitled to claim a refund. Id. As
such, there was no need for the Magistrate Judge to address whether Plaintiff had standing to
make a refund claim because any such argument was moot.
As to Plaintiff’s Objections regarding the amount, application of, and allegedly
continuous nature of the March 2011 Levy, the Magistrate Judge explained that on January 29,
2020, and January 22, 2021, respectively, the Court addressed and disposed of Plaintiff’s
arguments in Count III of his Amended Complaint related to his alleged unauthorized collection
pursuant to 26 U.S.C. § 7433, and addressed Plaintiff’s arguments based on 26 U.S.C. §§
6342(b) and 6343. Doc. 272 at 25 (citing Docs. 139, 143, 241, 253). The Magistrate Judge
specifically noted that in the December 18, 2020, PFRD (Doc. 241), which the Court adopted on
January 22, 2021 (Doc. 253), the Magistrate Judge found that Plaintiff had failed to present any
evidence to support his allegation that the IRS collected excess funds based on the March 2011
Levy or that Plaintiff had suffered “actual, direct economic damages” as a result of the IRS’s
alleged failure to release the March 2011 Levy. Id. at 26, n. 11 (citing Doc. 241 at 25-30).
Notably, Plaintiff did not seek relief from either of the Court’s Orders adopting the Magistrate
Judge’s findings. Thus, the Magistrate Judge correctly found that Plaintiff’s attempt to relitigate
or raise new arguments related to Count III by way of his Motion for Summary Judgment was
12
improper. The Court finds no fault with the Magistrate Judge’s findings. Plaintiff’s Objections
are thus overruled.
CONCLUSION
In sum, following its de novo review and having addressed Plaintiff’s Objections, the
Court finds no fault with the Magistrate Judge’s PFRD.
IT IS THEREFORE ORDERED that Plaintiff’s Objections are OVERRULED and the
Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc. 272) are
ADOPTED;
IT IS FURTHER ORDERED that the United States’ Motion for Partial Summary
Judgment on the Section 6213 Action, filed January 19, 2021 (Doc. 247), is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment Against
the United States, filed January 21, 2021 (Doc. 251), is DENIED.
______________________________
MARTHA VAZQUEZ
United States District Judge
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