Swartz v. IRS

USCA1 Opinion [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1058 MITCHELL SWARTZ, Plaintiff, Appellant, v. INTERNAL REVENUE SERVICE, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Morris E. Lasker, Senior District Judge] Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge. Mitchell Swartz on brief pro se. Loretta C. Argrett, Assistant Attorney General, Ann M. Durneyand John A. Nolet, Attorneys, Tax Division, Department of Justice, on brief for appellees. September 22, 1998 Per Curiam. Having carefully reviewed the record in this case, including the briefs of the parties and the decision of the district court, we affirm the dismissal of all appellant's claims. We add only the following. 26 U.S.C. 6402(f) specifically bars any federal court from hearing appellant's claim that the IRS erred in transferring his tax refund to California authorities for allegedly past due child support payments. This jurisdictional bar rests on the recognition that "the IRS does not have the information and resources needed to adjudicate the validity of the alleged child support arrearage." Satorius v. IRS, 671 F. Supp. 592, 594 (E.D. Wis. 1987). The duty of the IRS in this matter is simply ministerial. It "do[es] no more than retain and transfer an amount certified by the State agency. [It] make[s] no determinations of liability and ability to pay." Larsen v. Larsen, 671 F. Supp. 718, 720 (D. Utah 1987), aff'd871 F.2d 1095 (10th Cir.), cert. denied, 493 U.S. 844 (1989). Appellant's allegation that he has been the victim of IRS harassment in its attempt to collect taxes is without merit. In order to collect damages "in connection with the collection of Federal tax," appellant must show that the IRS acted with recklessness or intentional disregard of a provision of the tax law. 26 U.S.C. 7433. The only examples of harassment alleged are a summons seeking information relating to appellant's 1990 and 1992 tax returns and a notice of intent to levy for unpaid liabilities for these years. Appellant alleges that these actions are not good faith attempts to examine his return or to collect taxes owed but retaliation for the institution of his suit against the IRS. Since the only support for the claim that these actions were not taken in good faith is appellant's conclusory allegation of a retaliatory motive, this claim was properly dismissed. See Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997) (complaint of retaliation which contains only speculative and conclusory allegations properly dismissed); Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (same). Since appellant fails to show that the government could not possibly prevail on its claim that plaintiff has unpaid tax liabilities for the years 1990 and 1992, see Enochsv. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962), his request for an injunction is barred by 26 U.S.C. 7421. His claim that he is owed a tax refund for these years must also be dismissed, "regardless of the suit's potential merit," because appellant has not met the jurisdictional prerequisites of having fully paid his assessed liability and having filed a timely administrative claim with the IRS. United States v. Forma, 42 F.3d 759, 763-64 (2d Cir. 1994). None of the other claims raised by appellant has any merit. Finally, since appellant has not "established a claim or right to relief," the district court did not err in setting aside the default judgment which it had entered against the government. See Fed. R. Civ. P. 55(e). Appellant's motion for sanctions is denied. His motion for an injunction is denied as moot. Affirmed. See 1st Cir. Loc. R. 27.1.