United States of America v. Weathers et al

Filing 40

ORDER granting 39 Motion to Dismiss Counterclaims Four and Five. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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THE UNITED STATES OF AMERICA,

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Plaintiff,
v.
THOMAS WEATHERS, et al.,
Defendants.

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CASE NO. 3:18-cv-05189-RJB
ORDER ON PLAINTIFF THE
UNITED STATES’ MOTION TO
DISMISS COUNTERCLAIMS
FOUR AND FIVE OF PRECISION
PROPERTY MANAGEMENT
CORPORATION, TKW LIMITED
PARTNERSHIP AND T&K
WEATHERS LIMITED

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THIS MATTER comes before the Court on Plaintiff The United States’ Motion to

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Dismiss Counterclaims Four and Five of Precision Property Management Corporation, TKW

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Limited Partnership and T&K Weathers Limited. Dkt. 39. Defendants did not respond to the

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motion. The Court has considered the motion and the remainder of the file herein.

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Plaintiff brings this action to reduce tax assessments to judgment and foreclose federal

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tax liens. Dkt. 1 at 1. It is alleged that Defendant Thomas Weathers and Defendant Kathy

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Weathers and/or several nominee, alter ego, or shell corporations named as defendants have

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evaded federal taxes by fraudulently transferring assets. Id. at 2. Cowlitz County and several

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other co-defendants are also named because of their possible interest in real property subject to

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the Plaintiff’s alleged tax lien. See generally, id.

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ORDER ON PLAINTIFF THE UNITED STATES’ MOTION TO DISMISS COUNTERCLAIMS FOUR AND
FIVE OF PRECISION PROPERTY MANAGEMENT CORPORATION, TKW LIMITED PARTNERSHIP AND
T&K WEATHERS LIMITED - 1

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Defendants TKW Limited Partnership, T&K Weathers Limited, T&K Weathers Limited,

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and Precision Partnership (hereinafter, “Defendants”) jointly filed an Answer, Counterclaims and

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Affirmative Defenses. Dkt. 33. Counterclaim Four (“Damages 27 U.S.C. § 7432”) and

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Counterclaim Five (“Damages, 26 U.S.C. § 7433”) are the subject of Plaintiff’s motion to

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dismiss, which Plaintiff filed in lieu of an Answer to the Counterclaims. Dkt. 39, FN 1. Both

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counterclaims seek damages against Plaintiff for “knowingly or negligently failing to release

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federal tax liens on property of Defendants even though the taxes were paid or otherwise

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unenforceable against such property.” Dkt. 33 at ¶¶191, 195.

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Plaintiff argues that Counterclaims Four and Five should be dismissed because of the

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failure to allege (1) exhaustion of administrative remedies, as required under 26 U.S.C. §§

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7432(d)(1) and 7433(d)(1); and (2) failure to bring the counterclaims within the applicable two

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year statute of limitations under 26 U.S.C. §§ 7432(d)(3) and 7433(d)(3). Dkt. 39 at 4. Plaintiff

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argues that dismissal on exhaustion and statute of limitations grounds is proper under Fed. R.

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Civ. P. 12(b)(1) and, alternatively, Fed. R. Civ. P. 12(b)(6). Id.

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Defendants, who are represented by counsel, did not respond to Plaintiff’s motion to
dismiss.
Sections 7432 and 7433 allow taxpayers to seek damages against the IRS for

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“unauthorized collection actions,” subject to exhaustion of administrative remedies, subsection

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(d)(1), and a 2 year statutory period, subsection (d)(3). 26 U.S.C. §§ 7432(d)(1) and (3);

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7433(d)(1) and (3).

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The Complaint, filed on March 12, 2018, alleges federal tax liabilities were recorded
starting in 2011. Dkt. 1 at ¶¶167-169, 171.
Defendants’ Counterclaim does not contain any factual allegations. See Dkt. 33.

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ORDER ON PLAINTIFF THE UNITED STATES’ MOTION TO DISMISS COUNTERCLAIMS FOUR AND
FIVE OF PRECISION PROPERTY MANAGEMENT CORPORATION, TKW LIMITED PARTNERSHIP AND
T&K WEATHERS LIMITED - 2

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The Court finds dismissal warranted under Fed. R. Civ. P. 12(b)(6), because Defendants

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have not alleged plausible facts sufficient for their §§ 7432 and 7433 counterclaims. Both

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sections require the taxpayer-claimant to exhaust administrative remedies and to file within 2

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years of accrual, and Defendants have alleged no facts to support either claim on these grounds.

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Dismissal is also warranted under Fed. R. Civ. P. 12(b)(1), because the Court lacks

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jurisdiction over the counterclaims. Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir.

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1993). Accord Joseph v. United States,517 Fed. App’x 543 (9th Cir. 2013); Camangian v. United

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States, 475 F3d. App’x 216 (9th Cir. 2012); Manant v. United States, 498 Fed. App’x 752 (9th cri.

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2012). Defendants were given the opportunity to respond to Plaintiff’s motion and did not file a

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response, nor have Defendants sought leave to amend.

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Plaintiff The United States’ Motion to Dismiss Counterclaims Four and Five of Precision

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Property Management Corporation, TKW Limited Partnership and T&K Weathers Limited (Dkt.

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39) is HEREBY GRANTED. Defendants’ Counterclaim Four and Counterclaim Five (Dkt. 33 at

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¶¶191-197) are HEREBY DISMISSED.

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Plaintiff The United States may have fourteen (14) days from the issuance of this Order
to respond to the remaining allegations.

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IT IS SO ORDERED.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 20th day of August, 2018.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON PLAINTIFF THE UNITED STATES’ MOTION TO DISMISS COUNTERCLAIMS FOUR AND
FIVE OF PRECISION PROPERTY MANAGEMENT CORPORATION, TKW LIMITED PARTNERSHIP AND
T&K WEATHERS LIMITED - 3