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Miller v. United States

United States District Court, D. Kansas

December 3, 2019

RAYMOND R. MILLER and JO ANNA MILLER, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Pro se plaintiffs Raymond and Jo Anna Miller[1] filed this action on December 6, 2018, suing various IRS officers and employees. On, March 11, 2019, the United States filed a motion asking the court to substitute it as the proper defendant in place of the IRS officers and employees. Doc. 6. The court granted that motion. Doc. 10. This matter is now before the court on the defendant's Motion to Dismiss (Doc. 11). Plaintiffs have filed a Response (Doc. 16) and defendant has replied (Doc. 17). And, defendant has filed a Notice of Supplemental Authority (Doc. 19).

         I. Background

         When considering a motion to dismiss, the court accepts well-pleaded factual allegations asserted by the Complaint as true and views them in the light most favorable to plaintiffs. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

         Plaintiffs' Complaint asserts that they cannot be compelled to pay taxes on their income. Doc. 1 at 3. Plaintiffs' Complaint alleges “federal agents in the guise of IRS agents” have taken $134, 562.63 from plaintiffs since 2001 and continue to take their social security checks. Id. at 2. They allege the “takings were executed without judicial court orders and without a warrant” and were not supported by probable cause. Id. The Complaint references various sources to support their assertions, including the International Covenant on Civil and Political Rights and the Declaration of Independence. Plaintiffs claim “[they] cannot be compelled or forced to contribute to the social, economic and cultural development of the United States.” Id. at 3. And, “[a]nyone who forces [them] to contribute to the social, economic and cultural development of the United States is committing a violation of the Law of Nations . . . .” Id.

         Plaintiffs allege that the government cannot collect their outstanding tax liability because taxation is “illegal” and “unlawful.” Id. at 3, 5-7. Additionally, plaintiffs claim, they did not receive a pre-assessment Notice of Deficiency, and they thus are entitled to an injunction. Plaintiffs attached to their Complaint copies of orders issued by the United States Tax Court that-they allege-show that no Notices of Deficiency were ever issued. Id. at 5; Doc. 1-1; Doc. 1-2.

         Plaintiffs' Complaint alleges seven causes of action against defendant. The court has categorized their claims into four categories: (1) Fourth Amendment violations, (2) conspiracy to commit Fourth Amendment violations, (3) levy of plaintiffs' property without a Notice of Deficiency in violation of 26 U.S.C. § 6231, and (4) Eighth Amendment violations. Plaintiffs seek “[a] permanent injunction” against defendant, “[r]eturn of each and every dollar seized without warrant and without a judicial order, ” “[r]eturn [of] all funds taken from any and all accounts, ” costs, and attorney's fees. Id. at 9.

         II. Legal Standard

         Defendant moves for dismissal on two grounds: lack of subject matter jurisdiction and failure to state a claim.

         A. Rule 12(b)(1) Standard

         “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). “First, a facial attack on the complaint's allegations [about] subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Id. at 1002 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).

         “Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. at 1003 (citations omitted). “When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations.” Id. (citations omitted). “A court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citations omitted); see also Los Alamos Study Grp. v. U.S. Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012).

         B. Rule 12(b)(6) Standard

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support ...


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