2000 CASE: INDIVIDUALS' COMPLAINT AGAINST IRS, STATE REVENUE DEPARTMENTS DISMISSED.

                         U.S. DISTRICT COURT

ROBINSON, DISTRICT JUDGE:

[1] The above-captioned pro se plaintiffs have filed a seventy page complaint against numerous defendants for alleged constitutional and statutory violations stemming from levies issued upon plaintiffs' assets by the Internal Revenue Service ("IRS") and several state revenue departments. The court previously denied plaintiffs' motion for a preliminary injunction. (D.I. 45) Plaintiffs have since renewed that motion (D.I. 60) and filed several other repetitious motions seeking summary judgment and dismissal of some of defendants' motions. (D.I. 47, 48, 50) Defendants each have filed motions to dismiss plaintiffs' complaint. (D.I. 7, 9, 12, 13, 15, 18, 20, 24, 39, 41) For the following reasons, the court shall grant defendants' motions to dismiss and shall dismiss plaintiffs' motions.

II. STANDARD OF REVIEW

[2] In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all material allegations of the complaint, and it must construe the complaint in favor of the plaintiff. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). "A complaint should be dismissed only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. Claims may be dismissed pursuant to a Rule 12(b)(6) motion only if the plaintiff cannot demonstrate any set of facts that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The moving party has the burden of persuasion. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). With these rules in mind, the court turns to an examination of the sufficiency of plaintiff's and class plaintiffs' complaints.

III. DISCUSSION

[3] The gravamen of plaintiffs' claim, as set forth in their complaint, can be summarized as follows:

     The defendants have persistently refused to provide the

A. THE FEDERAL DEFENDANTS' MOTION TO DISMISS

[4] Although plaintiffs' allegations are difficult to decipher, it appears that they seek redress for constitutional violations committed by the IRS and its employees. Plaintiffs claim that the IRS conspired with several state agencies and private entities to deprive them of their wages in violation of the Fourth Amendment. Plaintiffs assert that the garnishing of their wages amounted to "the felony of conspiracy against rights, the deprivation of rights under color of law, theft and conversion, larceny, violation[s] of 4th, 5th and 14th Amendment rights." Plaintiffs also assert that Joseph Cloonan and Paul Harrington, as directors of IRS centers, failed to respond to plaintiffs' filing of a "Certified Demand for Proof of Jurisdiction" with the IRS. (D.I. 1 at 30-31, paragraph 55 and Ex. A) Plaintiffs further contend that, "[t]he defendants . . . as directors [of IRS centers] failed to provide the plaintiffs with legal statutory proof and evidence that the [IRS] and the IRS Code has jurisdiction over the subject matter and person of each plaintiff." (D.I. 1 at 31, paragraph 56) Finally, plaintiffs argue that IRS employees N.J. Aiello, John Miller, and M.V. Jackson also conspired to violate plaintiffs' constitutional rights by levying plaintiffs' assets and wages. (D.I. 1 at 32, paragraph 57) Plaintiffs seek money damages against the IRS and its employees pursuant to 26 U.S.C. section 7433.

[5] These claims are nearly identical to those made by the same plaintiffs in this court in Bowers v. United States, No. 97-165- RRM (D. Del. Dec. 15, 1997). In that suit, plaintiffs alleged numerous constitutional violations by the IRS arising out of its tax collection and enforcement procedures. Plaintiffs sought a refund of all taxes previously collected by the IRS, money damages, and a declaration that plaintiffs were forever exempt from the Internal Revenue Code. The court granted the United States' motion for judgment on the pleadings, concluding that plaintiffs' claims were frivolous and lacking in legal merit. Plaintiffs then filed the present suit, adding additional IRS employees, Judge Roderick McKelvie (who dismissed the Bowers complaint), Gregory Sleet, Virginia Gibson-Mason, Alan Swirski, and various institutions who complied with IRS tax levies on plaintiffs' wages and assets.

[6] There are several impediments to plaintiffs' suit against the federal defendants. First, some of the individual defendants are immune from suit. Second, plaintiffs' suit against the IRS is actually a suit against the United States, which enjoys sovereign immunity from suit. Third, plaintiffs' contention that they are immune from federal taxes lacks merit and fourth, plaintiffs have failed to state a claim for relief under 26 U.S.C. section 7433. The court shall discuss each of these deficiencies in turn.

1. DEFENDANTS SLEET, GIBSON-MASON, SWIRSKI, & McKELVIE

[7] Plaintiffs have sued defendants Gregory Sleet, Virginia Gibson-Mason, and Alan Swirski, who represented the United States in plaintiffs' prior case. Plaintiffs allege that these defendants violated plaintiffs' constitutional rights by urging the court to dismiss the Bowers complaint. (D.I. paragraphs 85-86) These defendants, however, enjoy immunity from liability for actions taken in the course of their defense of the United States. See Butz v. Economu, 438 U.S. 478, 511-13 (1978). Similarly, Judge McKelvie, who dismissed plaintiffs' prior complaint, is entitled to absolute immunity for "judicial acts." See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Accordingly these defendants shall be dismissed from plaintiffs' case.

2. THE IRS AND THE IRS EMPLOYEE DEFENDANTS

[8] Despite the designation of the IRS and various IRS employees as defendants in this suit, the nature of plaintiffs' action is one against the United States. For a federal agency to be amenable to suit, Congress must authorize suit against it by name. See Blackmar v. Guerre, 342 U.S. 512, 514 (1952). Congress has not authorized suit against the IRS with respect to suits of the type plaintiffs have filed. Therefore, the IRS is not a proper party to this suit.

[9] The same is true with respect to the IRS employee defendants. Plaintiffs have sued the IRS employees for acts done in the course of their employment. "When an action is one against individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States." Atkins v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989); see also Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Accordingly, the court shall dismiss the IRS and the individual IRS employees from plaintiffs' suit.

3. THE UNITED STATES ENJOYS SOVEREIGN IMMUNITY

[10] To the extent that plaintiffs allege violations of their constitutional rights, the United States, as the real party to this suit, enjoys sovereign immunity. See United States v. Sherwood, 312 U.S. 584, 586 (1941) (explaining that, "[t]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of the consent to be sued in any court define that court's jurisdiction to entertain the suit"). In the absence of a waiver of this sovereign immunity, plaintiffs' constitutional claims must be dismissed. The United States, however, has not consented to suit for alleged violations of constitutional rights. See Jaffee v. United States, 592 F.2d 712, 717-18 (3d Cir. 1979). Accordingly, plaintiffs' constitutional claims against the United States for the actions of the IRS and its employees shall be dismissed.

4. PLAINTIFFS ARE NOT IMMUNE FROM FEDERAL TAXATION

[11] Plaintiffs are not unique in arguing that, as "sovereign individuals," they enjoy immunity from federal taxation. The Tenth Circuit rejected identical arguments as "lacking in legal merit and patently frivolous." Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). This court wholeheartedly agrees with that assessment. Accordingly, insofar as plaintiffs' complaint rests on their alleged immunity from federal taxation, it shall be dismissed.

5. 26 U.S.C. SECTION 7433

[12] Plaintiffs also seek monetary damages under 26 U.S.C. section 7433. That statute provides for civil damages for certain unauthorized tax collection actions:

     (a) In general. If, in connection with any collection of Federal

B. E.I. DUPONT DE NEMOURS & COMPANY

[13] Plaintiffs assert that defendant E.I. DuPont de Nemours & Company ("DuPont") conspired with the IRS by retaining and submitting to the IRS certain portions of plaintiffs James and Phillip Dye's salaries. Jesse L. Rogers is alleged to be a DuPont employee and to have participated in the "conspiracy." (D.I. 1 at 39, paragraph 68) Plaintiffs also allege the involvement of DuPont employees Marian Fitzsimons and Steven Harrison. (D.I. 1 at 31, paragraph 56) Each of these defendants has filed a motion to. dismiss. (D.I. 18)

[14] Plaintiffs' complaint fails to allege any wrongdoing by the DuPont defendants. Section 6331(d) of the tax code expressly authorizes levies to be made "upon the salary or wages or other property of any person with respect to any unpaid tax." 26 U.S.C. section 6331(d). Moreover, the tax code insulates from liability those who comply with the IRS levies. See id. section 6332(e). Because plaintiffs' complaint fails to state a claim for relief against the DuPont defendants, the court shall grant the motion to dismiss. (D.I. 18)

C. KLEINKNECHT ELECTRIC COMPANY'S MOTION TO DISMISS

[15] Plaintiffs contend that Kleinknecht Electric violated plaintiff Charles Hecker's civil rights by garnishing his wages pursuant to an IRS levy. Kleinknecht Electric has filed a motion to dismiss. As noted above, the tax code specifically provides for garnishment of salaries and immunizes from liability those who assist the IRS with the levy. See 26 U.S.C. sections 6331(d), 6332(e). Therefore, Kleinknecht's actions did not violate plaintiffs' civil rights. The court shall grant Kleinknecht's motion to dismiss. (D.I. 13)

D. FIRST UNION NATIONAL BANK DEFENDANTS' MOTION TO DISMISS

[16] Plaintiffs contend that CoreStates Bank, which has since merged into First Union National Bank, illegally delivered the contents of accounts owned by Phillip A. and Rebecca J. Dye to the IRS. (D.I. 1 at 49-50, paragraph 82) Arlene Rego is alleged to be the primary employee of CoreStates participating in the "conspiracy." (D.I. 1 at 49-50, paragraph 82) Plaintiffs further allege that Chestnut Run Federal Credit Union ("Chestnut Run") conspired with the IRS to enforce an illegal tax levy through the seizure of James A. Dye's account held with Chestnut Run. (D.I. 1 at 61-63, paragraphs 100-02) Plaintiffs accuse Chestnut Run of theft and conversion. Bernadette M. Hines is being sued for her actions as an employee of Chestnut Run. (D.I. 1 at 61-63, paragraphs 100-02) Plaintiffs also sue James F. Maher for his actions as legal counsel to Chestnut Run. (D.I. 1 at 61-63, paragraphs 100-02) Plaintiffs contend that the transfer of funds by each financial institution to the IRS, pursuant to a tax levy, violated plaintiffs' constitutional rights. First Union, Chestnut Run, and Maher have filed motions to dismiss. (D.I. 12, 20, 39)

[17] Plaintiffs' complaint, however, fails to allege any constitutional violations. The tax code provides that:

     Any person in possession of (or obligated with respect to)

E. UNIVERSITY OF DELAWARE DEFENDANTS' MOTION TO DISMISS

[18] The University of Delaware ("University") is alleged to have complied with an allegedly unlawful IRS tax levy of the wages of plaintiff Darrell A. Dye. (D.I. 1 at 27-28, paragraph 49 and 42, paragraph 73a) Defendants Ellen B. Walker and Maryann Bryan are alleged to be the primary University employees involved in garnishing Dye's wages. (D.I. 1 at 42, paragraph 73a) In garnishing these wages, it is alleged that the University defendants violated Dye's constitutional rights. As noted, garnishing wages pursuant to a state or federal tax levy does not amount to unconstitutional conduct. See 26 U.S.C. section 6331(d). Accordingly, the court shall grant the University defendants' motion to dismiss. (D.I. 7)

F. STATE OF DELAWARE DEFENDANTS' MOTION TO DISMISS

[19] Plaintiffs maintain that a demand for proof of jurisdiction was also submitted to the Delaware Division of Revenue. (D.I. 1 at 34-35, paragraph 62 and Ex. F) Plaintiffs assert that William M. Remington and Joseph P. Hurley, as employees of the Delaware Division of Revenue, conspired with members of the state Tax Appeals Board, to illegally assert authority over plaintiffs James A. Dye, Phillip A. Dye, Rebecca J. Dye, and Sheena Q. Mitchell. (D.I. 1 at 34-37, paragraphs 62-65) In essence, plaintiffs contend that they are "sovereigns" and that the State of Delaware has not proved that it has jurisdiction over them. This argument has been rejected as "patently frivolous" and "fatuous" by numerous federal courts. See, e.g., United States v. Dawes, 874 F.2d 746, 751 (10th Cir. 1986) (rejecting individual's assertion of being a sovereignty exempt from taxes), overruled on other grounds by United States v. Allen, 895 F.2d 1577 (10th Cir. 1990); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981). Accordingly, the court shall grant the State of Delaware defendants' motion to dismiss. (D.I. 9)

G. MARYLAND GOVERNMENTAL DEFENDANTS' MOTION TO DISMISS

[20] Plaintiffs Monica D. Dye, Daniel A. Dye, and James F. Wilson allege that the Maryland Office of the Attorney General and the Comptroller of the Currency conspired to violate the plaintiffs' rights through the collection of taxes and garnishing of their wages. (D.I. 1 at 45, paragraph 78) Plaintiffs also allege that defendants Sharon R. Gransee, Gail Malle-Davis, and Sharonne R. Bonardi are alleged to have participated in the "conspiracy" through their employment with the Maryland Comptroller of the Treasury. (D.I. 1 at 45, paragraph 78) Plaintiffs further allege that Gerald Langbaum participated in the "conspiracy" through his position as Assistant Attorney General. (D.I. 1 at 45, paragraph 78) Underlying plaintiffs' claims against the Maryland defendants is their assertion that they are sovereign and therefore not subject to state or federal taxation. These Maryland governmental defendants filed a motion to dismiss. (D.I. 15)

[21] Even assuming the court had personal jurisdiction over these defendants, which it does not, plaintiffs' claims are baseless. As noted, federal courts have dismissed complaints founded on theories similar to plaintiffs' sovereignty argument. See, e.g., Dawes, 874 F.2d at 751; Romero, 640 F.2d at 1016. Accordingly, the court shall grant the Maryland governmental defendants' motion to dismiss. (D.I. 15)

IV. CONCLUSION

[22] As Justice Holmes noted, taxes are the price of civilization. See Compania Gen. de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting). No one enjoys paying them; yet, they afford us the luxury of a stable society. Plaintiffs' latest attempt to totally avoid paying their fair share of the costs of civilization is selfish and dishonorable.

[23] THEREFORE

[24] IT IS ORDERED that:

     1. The motion to dismiss filed by the State of Delaware is

² Plaintiffs allege that Merrill Lynch Benefit Services ("Merrill Lynch"), through employees Jackie Arimanta, Tom Cammarate and Chirag Patel, violated the rights of Phillip Dye in that they refused him access to his account in compliance with an IRS tax levy. (D.I. 1 at 43-44, paragraph 75) Plaintiffs also contend that Beneficial National Bank ("Beneficial") illegally turned over the accounts of Darrell A. Dye to the IRS. (D.I. 1 at 65-66, paragraphs 106-08 and Ex. B) Susan Pletz is alleged to be the primary employee of Beneficial involved in the "conspiracy." (D.I. 1 at 65-66, paragraphs 106-08 and Ex. B) The Merrill-Lynch and Beneficial defendants join in the motion to dismiss filed by Chestnut Run. (D.I. 26, 36) For the aforementioned reasons, the court shall grant their motions.