Dourlain v. United States/Internal Revenue Service

Filing 16

DECISION AND ORDER granting # 8 Defendant's Motion to Dismiss the Complaint. Signed by Chief Judge Glenn T. Suddaby on 11/18/16. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
WILLIAM H. DOURLAIN,
Plaintiff,
5:16-CV-0245 (GTS/DEP)
v.
UNITED STATES/INTERNAL REVENUE
SERVICE,
Defendant.
_________________________________________
APPEARANCES:

OF COUNSEL:

WILLIAM H. DOURLAIN
Plaintiff, Pro Se
8048 Cazenovia Road
Manlius, New York 13104
U.S. DEPARTMENT OF JUSTICE
Counsel for Defendant
P.O. Box 55
Ben Franklin Station
Washington, DC 20044

JAMES M. STRANDJORD, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by William H. Dourlain (“Plaintiff”)
against the “United States/Internal Revenue Service” (“Defendant”) challenging the validity of
Notices of Federal Tax Liens, is Defendant’s motion to dismiss Plaintiff’s Complaint for failure
to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6), and for
lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. No. 8.) For the
reasons set forth below, Defendant’s motion is granted.

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Defendant has filed four Notices of Federal Tax Liens (“Notices”) against Plaintiff, dated
November 26, 2012, June 19, 2013, October 29, 2015, and February 25, 2016. (Dkt. No. 1, at
29, 31, 33-34 [Pl.’s Compl.]; Dkt. No. 1, Attach. 2, at 1-2 [Ex. to Pl.’s Compl.].) Generally,
liberally construed, Plaintiff’s Complaint alleges that the Notices are invalid for the following
eleven reasons: (1) there is no authority for filing the Notices against Plaintiff under the
Administrative Procedures Act, 5 U.S.C. §§ 551-559; (2) pursuant to 26 U.S.C. § 7601, no
Executive Orders currently exist to establish internal revenue districts for the collection and
enforcement of Subtitle A income taxes; (3) the regulations used by the Internal Revenue Service
(“IRS”) for its assessment authority under 26 C.F.R. § 301.620 and its method of assessment
under 26 C.F.R. 301.6203 are not enforceable because they are not published in the Federal
Register; (4) the authorized assessment of taxes under 26 U.S.C. § 6201, which is derived from
section 3182 of the Revised Statutes of 1874, applies only to tobacco and distilled spirits and,
therefore, the liens are invalid to the extent that they are based upon a non-alcohol or nontobacco tax; (5) the authority to lien for taxes under 26 U.S.C. § 6321, which is derived from
section 3186 of the Revised Statutes of 1874, applies only to cotton and distilled spirits and,
therefore, the liens are invalid to the extent that they are based upon a non-alcohol or non-cotton
tax; (6) the wages paid to private sector employees are not taxable; (7) the term “Gross Income”
does not include wages paid to private sector employees; (8) the regulation used by the IRS to
define “Gross Income” under 26 C.F.R. § 1.61-1 is not published in the Federal Register and,
therefore, the IRS’ claim that Plaintiff had gross income under an unpublished regulation is

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invalid; (9) the law does not authorize collections against Plaintiff because 26 C.F.R. §
301.6301-1, which is the regulation used by the IRS for its collection authority, is not published
in the Federal Register; (10) regulations for assessment, liens, levy, and collection cannot be
enforced against Plaintiff because they are not published in the Federal Register; and (11) the
Notices are inchoate because they were not perfected by obtaining a court order and/or judgment
as required by the Federal Debt Collections Procedure Act. (Dkt. No. 1, ¶¶ 1-11 [Pl.’s Compl.].)
B.

Parties’ Briefing on Defendant’s Motion to Dismiss
1.

Defendant’s Memorandum of Law

Defendant asserts five arguments in support of its motion to dismiss. (Dkt. No. 8 [Def.’s
Mem. of Law].) First, Defendant argues that the United States has not waived its sovereign
immunity from suit for claims challenging the existence or extent of substantive tax liability.
(Id. at 4-5.) Although a judicially created waiver of sovereign immunity exists under 28 U.S.C.
§ 2410 for claims that contest a lien by challenging procedural irregularities in the assessment
process, Defendant argues that the Complaint does not allege any procedural irregularities.1
(Id. at 5-6.) Rather, Defendant argues that a taxpayer who seeks to challenge the existence or
extent of substantive liability, such as Plaintiff, must either (a) file a petition with the United
States Tax Court within 90 days of receiving a notice of deficiency, or (b) pay the tax liability in
full and file a claim in United States District Court for a refund. (Id.) Defendant argues that the
latter requirement is equally applicable in instances where the taxpayer seeks to challenge
federal tax liens on non-procedural grounds. (Id. at 6.)

1

Defendant argues that the validity of this judicially created waiver is now
questionable because 26 U.S.C. §§ 6320 and 6330 have subsequently been enacted, which create
a judicial review of procedural challenges in the United States Tax Court. (Dkt. No. 8, Attach. 1,
at 5 n.3 [Def.’s Mem. of Law].)
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Second, Defendant argues that the Complaint’s allegations could state a claim under 26
U.S.C. § 7433, which allows a taxpayer to bring a civil action for damages where, inter alia, an
IRS employee recklessly, intentionally, or negligently disregards any provision of the Internal
Revenue Code in relation to the collection of federal tax from a taxpayer. (Id.) However,
Defendant argues that such a claim is futile in this instance because 26 U.S.C. § 7433 merely
provides for a civil action for damages and Plaintiff’s Complaint instead seeks “[t]he
condemning of the Attached Notice of Federal Tax Liens pursuant to 28 U.S.C. [§] 2410.” (Id.)
In addition, Defendant argues that the United States has not consented to suit under 26 U.S.C. §
7433, which seeks to quiet title to property encumbered by federal tax liens. (Id. at 7.)
Third, Defendant argues that the Complaint does not allege a procedural challenge to the
assessment process and, instead, challenges the IRS’ authority to assess and collect taxes from
Plaintiff, which is barred by sovereign immunity, for the following seven reasons: (1) the first
paragraph in Plaintiff’s Complaint alleges that there is no legal basis for the collection of taxes
from him and, therefore, is not a procedural challenge; (2) the second paragraph in Plaintiff’s
Complaint alleges that “no internal revenue districts exist for the collection and enforcement of
Subtitle A Income taxes” and, therefore, is not a challenge to a procedural irregularity; (3) the
third paragraph in Plaintiff’s Complaint alleges that the regulations relied upon by the IRS for its
assessment authority and method of assessment are not published in the Federal Register, which
challenges the IRS’ authority; (4) the fourth and fifth paragraphs in Plaintiff’s Complaint allege
that the IRS Code of 1939 and 1954 authorized taxation of only alcohol, cotton, and tobacco and,
therefore, the taxes assessed against Plaintiff are invalid; (5) the sixth, seventh, and eighth
paragraphs in Plaintiff’s Complaint are not related to a procedural challenge because they allege

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that (a) wages paid to private sector employees are not taxable, (b) gross income does not
include wages paid to private sector employees, and (c) the regulations that define gross income
are invalid; (6) the ninth and tenth paragraphs in Plaintiff’s Complaint challenge the IRS’
authority to collect taxes and enforce the laws of the United States because they allege that the
law does not authorize collections against Plaintiff due to certain regulations not being published
in the Federal Register; and (7) the eleventh paragraph in Plaintiff’s Complaint challenges the
validity of 26 U.S.C. § 6322, which dictates that a lien arises at the time that an assessment is
made, and not a procedural irregularity. (Id. at 7-11.)
Fourth, Defendant argues that Plaintiff’s requested relief is prohibited by the AntiInjunction Act, 26 U.S.C. § 7421, which removes jurisdiction from federal and state courts to
entertain suits seeking injunctions that prohibit the collection of federal taxes. (Id. at 11-12.)
More specifically, Defendant argues that, although the Complaint states that “[t]his is not a suit
for an injunction or restraint,” the only relief requested is “[t]he condemning of the Attached
Notice of Federal Tax Liens pursuant to 28 U.S.C. [§] 2410.” (Id. at 12.) Therefore, Defendant
argues that the Complaint seeks, in effect, to preclude the Government from collecting against
Plaintiff’s property and is barred by the Anti-Injunction Act. (Id.) Although there is an
exception to 26 U.S.C. § 7421, Defendant argues that the Complaint fails to allege facts
plausibly suggesting entitlement to this exception because (a) it does not allege that Plaintiff
would suffer irreparable injury if collection were effected, and (b) Plaintiff has an adequate
remedy at law to challenge the filing of a notice of federal tax lien by requesting a hearing with
the IRS that is reviewable by the United States Tax Court and not the United States District
Court. (Id. at 12-13.)

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Fifth, and finally, Defendant argues that the Complaint fails to state a plausible claim for
relief because the allegations relate entirely to unsubstantiated and frivolous legal conclusions.
(Id.)
2.

Plaintiff’s Opposition Memorandum of Law

Plaintiff makes the following two arguments in opposition to Defendant’s motion. (Dkt.
No. 14 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that Defendant did not follow correct
procedure before filing the Notices of Federal Tax Liens with the local county clerk’s office
because they were not certified by the Secretary of the United States Treasury as required by 26
C.F.R. § 301.6323(f)-1 and N.Y. Lien Law § 244. (Id. at 1-3, 5-6.)
Second, Plaintiff argues that Defendant has failed to provide a clear tax liability pursuant
to 26 C.F.R. § 301.6323(f)-1(d)(2) because the Notices of Federal Tax Liens list “1040” under
the column for “Kind of Tax.” (Id. at 3-6.) Plaintiff argues that this makes the Notices defective
because 1040 does not impose any tax liability. (Id. at 5.)
3.

Defendant’s Reply Memorandum of Law

Generally, Defendant asserts the following four arguments in reply to Plaintiff’s
opposition memorandum of law. (Dkt. No. 15 [Def.’s Reply Mem. of Law].)
First, Defendant reiterates its argument that Plaintiff’s challenges to the underlying
assessment of taxes against him do not implicate a waiver of sovereign immunity to this action.
(Id. at 3-4.) Furthermore, Defendant argues that Plaintiff’s contention that Section 1040 does not
impose a tax liability against him is nothing more than a challenge to the merits of his tax
assessment rather than a challenge to a procedural irregularity. (Id.) Similarly, Defendant
argues that, while Plaintiff’s contention that the Notices of Federal Tax Liens were not properly

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recorded potentially implicates a procedural irregularity (and waiver of sovereign immunity),
this contention does not open the door to a challenge to the merits of the tax liability alleged in
the Complaint. (Id. [citing Follum v. U.S., 199 F.3d 1322 (2d Cir. 1999)].)
Second, Defendant argues that the Notice of Federal Tax Lien need not be certified by
the Secretary of the United States Treasury because state law requirements regarding the form or
content to record a Notice of Federal Tax Lien do not affect the validity of the underlying federal
tax lien. (Id. at 6-7 [citing Matthies v. Nave, 02-CV-0107, 2002 WL 31689437, at *2 [D. Mont.
Oct. 16, 2002].)
Third, Defendant argues that it is well settled that a Notice of Federal Tax Lien is not
invalid because it lists “104” as the “Kind of Tax” from which the taxpayer’s liability arises, and
that a contrary contention has been consistently rejected as frivolous by federal courts. (Id. at 7.)
Fourth, and finally, Defendant argues that, to the extent that Plaintiff relies on Tandy
Leather Co. v. United States, 347 F.2d 693 (5th Cir. 1965), for the proposition that there is no
statute that imposes an income tax upon him, that reliance is misplaced because it is well settled
that 26 U.S.C. § 1(c) imposes an income tax upon individuals and is constitutionally valid. (Id.
at 8.)
II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions to Dismiss for Failure to State a Claim

It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d

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204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d

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ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se
plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil

2

See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
cases).
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rights plaintiffs must follow.3 Stated more simply, when a plaintiff is proceeding pro se, “all
normal rules of pleading are not absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28
[citations omitted].4
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.5

3

See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
4

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
5

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-11-

Moreover, in the Second Circuit, a pro se plaintiff’s papers in response to a defendant’s motion
to dismiss for failure to state a claim may be considered as effectively amending the allegations
of his complaint–to the extent those papers are consistent with the allegations in the complaint.6

573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
6

See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) (per
curiam) (“[W]e deem Drake's complaint to include the facts contained in his memorandum of
law filed in response to Delta's 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d
Cir. 1987) (“In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts
that Mooney's actions amounted to deliberate and willful indifference. Liberally construed under
pro se pleading standards, Gill's allegations against Mooney involve more than ordinary lack of
due care for the prisoner's interests or safety, . . . and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted);
Donhauser v.Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.) (“[I]n cases where a
pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider
materials outside of the complaint to the extent they “are consistent with the allegations in the
complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160
(N.D.N.Y. 2004) (Hurd, J.).
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B.

Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction

“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a
court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
III.

ANALYSIS
After carefully considering the matter, the Court finds that Plaintiff’s Complaint should

be dismissed for all the reasons stated in Defendant’s memoranda of law. See, supra, Parts I.B.1.
and I.B.3. of this Decision and Order. To those reasons, the Court would add only that,
ordinarily, pro se plaintiffs, such as Plaintiff in this case, should be afforded an opportunity to
amend his/her complaint prior to its dismissal. However, the Court finds that any amendments to
Plaintiff’s Complaint would be futile for the reasons stated in Defendant’s reply memorandum of
law. (Dkt. No. 15, at 3-8 [Def.’s Reply Mem. of Law].) More specifically, Defendant correctly
argues that the United States enjoys sovereign immunity from suit but that the Second Circuit
has construed 28 U.S.C. § 2410 to waive immunity where a party “challenge[s] procedural
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irregularities in the assessment process.” Johnson v. United States, 990 F.2d 41, 42 (2d Cir.
1993). In opposition to Defendant’s motion, Plaintiff raises new claims that were not included in
his Complaint in an attempt to invoke this exception. However, the Court agrees with Defendant
that Plaintiff’s claims raise substantive challenges rather than procedural ones. In other words,
Plaintiff seeks to “invalidate the underlying tax assessments completely, and permanently to free
himself of liability for the taxes owed, rather than to dispute issues like the mere timing of the
assessment,” and, therefore, “his claim must be characterized as substantive.” Follum v. United
States, No. 99-4049, 1999 WL 1012454, at *1 (2d Cir. Oct. 15, 1999). Accordingly, Plaintiff
“cannot evade the requirement that he ‘pay first and litigate later’ by invoking § 2410.” Follum,
1999 WL 1012454, at *1. Alternatively, the arguments and/or new claims raised in Plaintiff’s
opposition memorandum of law fail for the additional reasons stated in Defendant’s reply
memorandum of law and because they are contrary to well-settled case precedent. (Dkt. No. 15,
at 6-8 [Def.’s Reply Mem. of Law].) For all of the foregoing reasons, Plaintiff’s Complaint is
dismissed.
ACCORDINGLY, it is
ORDERED that Defendant’s motion to dismiss the Complaint (Dkt. No. 8) is
GRANTED. The Clerk of the Court is directed to enter judgment in favor of the Defendant and
close this case.
Dated: November 18, 2016
Syracuse, New York

_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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