Delgado-Resto v. Internal Revenue Service
Filing
36
OPINION AND ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction. Final judgment shall be thus issued. Signed by Judge Juan M Perez-Gimenez on 7/12/2012. (PMA)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
David Delgado Resto.
Plaintiff,
v.
CIV. NO. 11-1350 (PG)
Internal Revenue Service.
Defendant,
OPINION AND ORDER
Before this Court is Defendant’s motion to dismiss wherein the
Defendant requests that the complaint be dismissed for lack of subject
matter jurisdiction, failure to state a claim upon which relief may be
granted, or in the alternative, for improper service. See Docket No. 13.
Also, Defendant asserts that the relief Plaintiff seeks is explicitly
barred by the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a). After careful
review, this Court GRANTS Defendant’s motion to dismiss. As a result, the
above-captioned petition is DISMISSED WITH PREJUDICE pursuant to Federal
Rule of Civil Procedure 12(b)(1).
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2011, David Delgado Resto (hereinafter “Plaintiff”),
filed the above-captioned complaint against the Internal Revenue Service
(hereinafter
“IRS”
or
“Defendant”),
wherein
Plaintiff
requested
this
Court grant an injunction against the IRS. See Docket No. 2. On August 5,
2011, summons was issued for the IRS. See Docket No. 5. This Court
granted Plaintiff’s motion for appointment of counsel on May 18, 2011,
and on October 17, 2011, he was notified of said appointment. See Dockets
No. 4, 8. Plaintiff then filed a motion requesting enlargement of no less
than sixty (60) days to amend the complaint and serve Defendant. See
Civil No. 11-1350
(PG)
Page 2
Docket No. 10. The aforementioned motion was granted by this Court on
November 4, 2011, and Plaintiff was given until January 16, 2012 to amend
his pleadings. See Docket No. 11. However, the Plaintiff failed to comply
with
this
deadline,
and
now
the
Defendant
requests
that
this
Court
dismiss the above-captioned complaint. See Docket No. 13.
In its response, Plaintiff asserts that 26 U.S.C. § 7421(a) does
not apply to the case at hand inasmuch as the Servicemembers Civil Relief
Act (hereinafter “SCRA”) was activated once Plaintiff notified the IRS
that he was in “military service.” Additionally, Plaintiff argues that
this Court has jurisdiction insofar as he is a citizen of the United
States and a federal question has been presented before this Court. See
Docket No. 21.
Subsequently, the IRS filed a reply brief in support of its motion
to dismiss. See Docket No. 29. In the same, the IRS further stresses its
original arguments while asserting that no provision of law was brought
by Plaintiff to sustain the claim that the SCRA prevails over the AntiInjunction Act. Accordingly, the IRS alleges that the Anti-Injunction Act
contains a list of exceptions to its general prohibition and the SCRA is
not among them. See Docket No. 29. Also, the IRS asserts that while the
SCRA protects service members during their period of “military service,”
the Plaintiff has been released from service since March 27, 2008. See
Docket No. 29.
For the reasons stated below, this Court GRANTS Defendant’s motion
to dismiss.
II. STANDARD OF REVIEW
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6)
are subject to the same standard of review. See Negrón-Gaztambide v.
Civil No. 11-1350
(PG)
Page 3
Hernández-Torres, 35 F.3d 25, 27 (1st Cir. 1994). Firstly, when ruling on
a motion to dismiss for failure to state a claim, a district court “must
accept as true the well-pleaded factual allegations of the complaint,
draw all reasonable inferences therefrom in the plaintiff’s favor, and
determine whether the complaint,
so read, limns facts sufficient to
justify recovery on any cognizable theory.” Rivera v. Centro Médico de
Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing LaChapelle v.
Berkshire
Life
Ins.
Co.,
142
F.3d
507,
508
(1st
Cir.
1998)).
Additionally, courts “may augment the facts in the complaint by reference
to (i) documents annexed to the complaint or fairly incorporated into it,
and (ii) matters susceptible to judicial notice.” Gagliardi v. Sullivan,
513 F.3d 301, 306 (1st Cir. 2008) (internal citations and quotation marks
omitted).
In
determining
whether
dismissal
of
a
complaint
is
appropriate
pursuant to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that
“[t]he general rules of pleading require a short and plain statement of
the claim showing that the pleader is entitled to relief… this short and
plain statement need only give the defendant fair notice of what the…
claim is and the grounds upon which it rests.” Gargano v. Liberty Intern.
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (internal citations
and
quotation
marks
omitted).
Nevertheless,
“even
under
the
liberal
pleading standard of Federal Rule of Civil Procedure 8, the Supreme Court
has… held that to survive a motion to dismiss, a complaint must allege ‘a
plausible entitlement to relief.’” Rodríguez-Ortiz v. Margo Caribe, Inc.,
490 F.3d 92, 95 (1st Cir. 2007) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 559 (2007)). “A claim has facial plausibility when the
plaintiff
pleads
factual
content
that
allows
the
court
to
draw
the
Civil No. 11-1350
(PG)
Page 4
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level… on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and
quotation
marks
omitted).
“Determining
whether
a
complaint
states
a
plausible claim for relief will… be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 129 S.Ct. at 1950.
“In resolving a motion to dismiss, a court should employ a two
pronged
approach.
It
should
begin
by
identifying
and
disregarding
statements in the complaint that merely offer legal conclusions couched
as fact or threadbare recitals of the elements of a cause of action.”
Ocasio-Hernández
v.
Fortuño-Burset,
640
F.3d
1,
12
(1st
Cir.
2011)
(citing Twombly, 550 U.S. at 555) (internal quotation marks omitted).
Although a complaint attacked by a motion to dismiss pursuant to Federal
Rule
of
Civil
Procedure
12(b)(6)
“does
not
need
detailed
allegations… a plaintiff’s obligation to provide the
factual
grounds of his
entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.”
Twombly,
550
U.S.
at
555
(internal
citations
and
quotation
marks
omitted). That is, the court “need not accept as true legal conclusions
from
the
complaint
or
naked
assertions
devoid
of
further
factual
enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009)
(citing Iqbal, 129 S.Ct. at 1960). “Non-conclusory factual allegations in
the
complaint
must
then
be
treated
as
true,
even
if
seemingly
Civil No. 11-1350
(PG)
Page 5
incredible.” Ocasio-Hernández, 640 F.3d at 9 (citing Iqbal, 129 S.Ct. at
1951).
When evaluating the plausibility of a legal claim, a court may not
“attempt to forecast a plaintiff’s likelihood of success on the merits; a
well-pleaded complaint may proceed even if… a recovery is very remote and
unlikely.” Ocasio-Hernández, 640 F.3d at 12-13 (citing Twombly, 550 U.S.
at 556). Thus, “[t]he relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the court to draw
from the facts alleged in the complaint.” Ocasio-Hernández, 640 F.3d at
13.
III. DISCUSSION
In its motion, Defendant argues that this Court lacks jurisdiction
because the United States has not waived its sovereign immunity for suits
such as the above-captioned. Moreover, Defendant claims that any such
complaints as the one now before this Court is barred by 26 U.S.C. §
7421(a). See Docket No. 13.
The statute titled Prohibition of Suits to Restrain Assessment or
Collection, also known as the “Anti-Injunction Act”, states that:
[e]xcept as provided in sections 6015 (e), 6212 (a)
and (c), 6213 (a), 6225 (b), 6246 (b), 6330 (e)(1),
6331 (i), 6672 (c), 6694 (c), and 7426 (a) and
(b)(1), 7429 (b), and 7436, no suit for the purpose
of restraining the assessment or collection of any
tax shall be maintained in any court by any person,
whether or not such person is the person against
whom such tax was assessed.
26 U.S.C. § 7421(a).
“The manifest purpose of § 7421(a) is to permit the United States
to
assess
and
collect
taxes
alleged
to
be
due
without
judicial
intervention… In this manner the United States is assured of prompt
collection of its lawful revenue.” Enochs v. Williams Packing and
Civil No. 11-1350
(PG)
Page 6
Navigation Co, 370 U.S. 1 (1962). In addition, the courts have
held that “[i]f a taxpayer fails to establish that his suit falls within
one of the statutory or judicially created exceptions to the Act, the
district court lacks subject matter jurisdiction and must dismiss the
complaint.” Jensen v. IRS, 835 F.2d 196, 198 (9th Cir. 1987). Once a
taxpayer satisfies one of the exceptions to the Act, he is no longer
jurisdictionally
barred
from
seeking
an
injunction.
See
Perlowin
v.
Sassi, 711 F.2d 910, 911 (9th Cir.1983). After carefully reviewing the
exceptions
listed
in
the
statute,
this
Court
finds
that
none
is
applicable to the case at hand. In addition, Plaintiff failed to make the
required showing in his response. Thus, this Court lacks jurisdiction on
the matter asserted by Plaintiff in his complaint.
Also, this Court finds that the SCRA is inapplicable to the case at
hand inasmuch as it only protects servicemembers during their period of
military service, which, according to the statute refers to: “the period
beginning on the date on which a servicemember enters military service
and ending on the date on which the servicemember is released from
military service or dies while in military service.” 50 U.S.C. App. §
511(3). To the extent the Plaintiff is no longer in military service, as
he was permanently retired on March 27, 2008 (Docket No. 21-1 at page 9),
the protection he seeks is inapposite to his case. As such, Plaintiff’s
claims must be DISMISSED.
IV. CONCLUSION
In light of the foregoing, this Court GRANTS Defendant’s motion
(Docket No. 12), and it is hereby ordered that the Plaintiff’s petition
be DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure
12(b)(1). Final judgment shall be thus entered.
Civil No. 11-1350
(PG)
Page 7
SO ORDERED.
In San Juan, Puerto Rico, July 12, 2012.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE
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