Mamedova v. United States of America

Filing 13

MEMORANDUM AND ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Chief Judge William E. Smith on 11/30/2017. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
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SAIDA E. MAMEDOVA,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

C.A. No. 17-188-WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendant United States of America’s
Motion to Dismiss.

(ECF No. 8.)

Plaintiff, Saida E. Mamedova,

brought a wrongful levy action, pursuant to 26 U.S.C. § 7426(a)(1),
against

Defendant

after

the

Internal

Revenue

placed a levy on her property for unpaid taxes.

Service

(“IRS”)

For the reasons

set forth below, Defendant’s motion is GRANTED.
I. Background
On May 2, 2011 and June 18, 2012, the IRS made income tax
assessments for unpaid taxes 1 against Plaintiff and her husband,
Vadym Huzenko, for the 2009 and 2010 tax years in the amounts of

1

In her Complaint, Plaintiff alleges that she did not file
joint tax returns with her husband for the 2009 and 2010 tax years,
and further, that the IRS determined she did not sign the returns
and she was not required to file returns for those years. (Am.
Compl. 2, ECF No. 6.)

$234,651.75 and $32,124.02, respectively.

(Am. Compl. 1; Account

Tr. Ex. A, ECF No. 8-2; Account Tr. Ex. B, ECF No. 8-2.)

Plaintiff

requested Innocent Spouse Relief from the IRS for the 2009 tax
year, which was denied on July 21, 2014.

She petitioned the United

States Tax Court (“Tax Court”) for a redetermination on October
21, 2014.

(Pet. 1 Ex. B, ECF No. 12-2.)

On December 7, 2015, the

Tax Court denied Plaintiff’s petition (the “Decision”).

Mamedova

v. Comm’r, No. 25022-14, slip op. at 1 (T.C. Dec. 7, 2015); (Tax
Court Decision Ex. C, ECF No. 12-3).

The Decision stated that

“[p]ursuant to the agreement of the parties in this case, it is
ORDERED AND DECIDED: That [Plaintiff] is not entitled to relief
under I.R.C. § 6015(f) with respect to her income tax liability
for the taxable year 2009.”

Mamedova, No. 25022-14 at 1-2.

With the 2009 and 2010 taxes still unpaid, the IRS issued
Plaintiff and her husband a Notice of Federal Tax Lien Filing on
March 28, 2017.

(Am. Compl. Ex. B.)

On April 17, 2017, the IRS

issued a levy against Plaintiff and her husband for unpaid taxes
for the years 2009 and 2010 on their property located at Florida
Community Bank in Immokalee, Florida. (Am. Compl. Ex. A.) Seeking
relief from the levy, Plaintiff brought this wrongful levy action
pursuant to 26 U.S.C. § 7426(a)(1).

2

II. Discussion
A. Sovereign Immunity
Defendant has moved to dismiss for lack of jurisdiction,
arguing that Defendant has not waived sovereign immunity for
Plaintiff’s claim.

(United States’ Mot. To Dismiss 1, ECF No. 8.)

“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”

F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554
(1988); Fed. Hous. Admin. v. Burr, 309 U.S. 242, 244 (1940)).
“Sovereign immunity is jurisdictional in nature.

Indeed, the

‘terms of [the United States’] consent to be sued in any court
define that court’s jurisdiction to entertain the suit.’”

Id.

(alteration in original) (quoting United States v. Sherwood, 312
U.S. 584, 586 (1941)).

“It is axiomatic that the United States

may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.”

Id. (quoting United

States v. Mitchell, 463 U.S. 206, 212 (1983)).
Government’s

sovereign

immunity,

‘unequivocally expressed.’”

to

be

“Waivers of the

effective,

must

be

United States v. Nordic Vill. Inc.,

503 U.S. 30, 33 (1992) (quoting Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 95 (1990)).

“[T]he Government’s consent to be sued

‘must be “construed strictly in favor of the sovereign,” and not
“enlarge[d] . . . beyond what the language requires[.]”’”

3

Id. at

34

(second

alteration

and

omission

in

original)

(citations

omitted).
Plaintiff’s wrongful levy claim is brought pursuant to 26
U.S.C. § 7426(a)(1).

Section 7426(a)(1) states: “[i]f a levy has

been made on property . . . any person (other than the person
against whom is assessed the tax out of which such levy arose) who
claims an interest in or lien on such property and that such
property was wrongfully levied upon may bring a civil action
against the United States in a district court of the United
States.”

(Emphasis added.)

The IRS assessed and issued a levy

against Plaintiff for unpaid taxes for the 2009 and 2010 tax years,
as evidenced by Plaintiff’s name appearing alongside her husband’s
name on the IRS account transcripts for the 2009 and 2010 tax
years.

(Account Tr. Ex. A; Account Tr. Ex. B.)

Thus, Plaintiff

is undoubtedly “the person against whom is assessed the tax out of
which such levy arose” and outside the statutory waiver.

See 26

U.S.C. § 7426(a)(1); see also Komlo v. United States, 657 F. App’x
85, 88 (3d Cir. 2016) (affirming district court’s dismissal on the
basis of sovereign immunity for plaintiff’s wrongful levy claim
where

plaintiff

“lack[ed]

recourse

under

the

statute

because

[plaintiff] [was] the ‘person against whom’ the IRS ‘assessed the
tax’ giving rise to the levy at issue”) (quoting § 7426(a)).
Plaintiff argues that she is not the person against whom the
tax is assessed as she reached an agreement with the IRS that she
4

did not jointly file tax returns with her husband in 2009 and 2010,
and she argues that she did not otherwise have any income in those
years.

(Mem. in Supp. of the Pl.’s Resp. to the United States

Mot. To Dismiss 1, ECF No. 10.)

Plaintiff cites only the Decision

of the Tax Court on Plaintiff’s petition to receive Innocent Spouse
Relief for the 2009 tax year as evidence of this agreement.

(Id.)

While the Decision states that Plaintiff and the IRS reached an
agreement,

the

Decision

does

not

state

the

agreement.

substance

of

the

See Mamedova, No. 25022-14 at 1–2.

However, the agreement noted in the Decision is beside the
point

because,

even

accepting

Plaintiff’s

argument

about

her

agreement with the IRS as true, Plaintiff is attempting to show
that

the

tax

assessment

against

impermissible under § 7426.

her

is

invalid,

which

is

See Shannon v. United States, 521

F.2d 56, 59 (9th Cir. 1975) (“one who sues under [section] 7426
cannot challenge the validity of the assessment”).

In § 7426

actions, the tax assessment is “conclusively presumed to be valid.”
See 26 U.S.C. § 7426(c) (“For purposes of an adjudication under
this section, the assessment of tax upon which the interest or
lien of the United States is based shall be conclusively presumed
to

be

valid.”).

Thus,

§

7426(c)

prohibits

Plaintiff

from

challenging the validity of the tax assessment made against her
and requires the Court to accept the tax assessments as valid.
See Shannon, 521 F.2d at 59 n.9 (“once the assessment is made, the
5

individual assessed is barred from challenging the validity of the
assessment”);

see

also

Komlo,

657

F.

App’x

at

88

(rejecting

plaintiff’s argument that plaintiff was not a person assessed a
tax by the IRS by allegedly paying outstanding deficiencies after
an assessment was entered against the plaintiff because “in the
adjudication of a wrongful levy claim, the underlying assessment
‘shall be conclusively presumed to be valid’” (citing 26 U.S.C.
§

7426(c))).

Therefore,

the

Court

has

to

accept

the

tax

assessments made against Plaintiff as presumptively valid pursuant
to § 7426(c).
Accepting the tax assessments against Plaintiff as valid
pursuant to § 7426(c), Plaintiff is clearly a person against whom
the tax is assessed out of which the levy arose, and, as discussed
above, Defendant has not waived sovereign immunity for this claim.
Thus, this Court lacks jurisdiction to hear Plaintiff’s wrongful
levy action pursuant to 26 U.S.C. § 7426(a)(1).
B. Anti-Injunction Act
Defendant argues that Plaintiff’s claim is barred by the AntiInjunction Act, 26 U.S.C. § 7421(a), which states: “[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),

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
6

against whom such tax was assessed.”

(Mem. in Supp. of United

States’ Mot. To Dismiss 3-4, ECF No. 8-1 (quoting 26 U.S.C.
§ 7421(a)).) Because the Court holds it does not have jurisdiction
to consider this claim, it does not reach this issue.
III. Conclusion
For

the

reasons

discussed

Dismiss (ECF No. 8) is GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 30, 2017

7

above,

Defendant’s

Motion

to