Sixth Circuit Rejects Tax Protester Argument in Refund Case

JOHN J. TATAR,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN

ORDER

Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

John J. Tatar, proceeding pro se, appeals the district court's dismissal of his action against the United States, in which he sought injunctive relief from tax collection and a refund of amounts levied by the Internal Revenue Service (“IRS”) to satisfy federal income tax liabilities. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

Tatar's complaint concerned assessments made by the IRS for taxes owed by Tatar for tax years 1996 through 2010. For tax years 1996 and 1997, the IRS made assessments against Tatar in the amount of the tax liabilities reported on his income tax returns and for additional amounts determined on audit. The 1996 assessment was satisfied on April 25, 2016, and the 1997 assessment was satisfied on July 30, 2012. In 1998 and 1999, the IRS assessed taxes in the amounts reported by Tatar on his income tax returns, which were fully paid. For tax years 2000 and 2001, the IRS made assessments in the amounts reported on Tatar's income tax returns and in additional amounts determined on audit. As of September 21, 2016, a $7319.90 balance remained on the 2000 assessment, and, on September 28, 2015, the IRS wrote off the $24,070.31 balance that remained on the 2001 assessment. For tax years 2002 through 2010, Tatar did not file income tax returns. The IRS made deficiency assessments against Tatar for tax years 2002 through 2006 and 2008, but not for 2007, 2009, or 2010. In June 2016, the IRS wrote off the amounts owed for tax years 2002 and 2003 as uncollectible, and, as of September 21, 2016, unpaid balances totaling more than $126,000 remained for tax years 2004 through 2006 and 2008.

In August 2016, Tatar filed this action in the district court. In his complaint, Tatar sought a tax refund in the amount of $230,278 and an “order removing levies and liens concerning the further collection of taxes for the tax years in question.” In a 108-page memorandum accompanying his complaint, Tatar raised several familiar tax-protestor arguments regarding the government's ability to impose an individual income tax, including that his “revenues” from working are not taxable income under the Internal Revenue Code or the Sixteenth Amendment, that he is beyond the taxing authority of the United States as a citizen of Michigan, that the federal income tax is an improper excise tax, that the government cannot tax the proceeds of one's exercise of the fundamental right to work, and that the value of his income attributable to his human capital is not taxable.

The government moved to dismiss Tatar's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). First, the government argued that the Anti-Injunction Act, 26 U.S.C. § 7421, and the Declaratory Judgment Act, 28 U.S.C. § 2201, deprived the district court of jurisdiction to provide the injunctive and declaratory relief sought by Tatar. Second, the government asserted that Tatar's claims for a refund for tax years 1997 through 2010 were barred by sovereign immunity because Tatar failed to meet the jurisdictional prerequisites for such claims, i.e., that he had paid each year's assessment in full, see Flora v. United States, 357 U.S. 63, 75-76 (1958), and that he had submitted timely administrative claims with the IRS, 26 U.S.C. § 7422(a). Finally, the government explained that the only tax year for which Tatar even arguably satisfied the jurisdictional prerequisites was 1996 because he fully paid the taxes and penalties for that year on April 25, 2016, and he alleged that he filed an administrative claim in February 2016. The government argued, however, that Tatar's claim for a refund for that year failed to state a claim upon which relief may be granted. A magistrate judge issued a report, recommending that the motion be granted for all the reasons cited by the government. Over Tatar's objections, the district court adopted the magistrate judge's report and recommendation and dismissed Tatar's complaint.

Tatar now appeals. In his brief, Tatar references the memorandum that he submitted along with his complaint in the district court and argues that the court erred in rejecting his assertion that he is not subject to taxation by the federal government. Tatar does not address the district court's ruling that it lacked subject-matter jurisdiction over his claims for injunctive relief and over his claims for a refund for tax years 1997 through 2010 for failure to meet the jurisdictional prerequisites to a tax refund suit. By failing to raise these issues, Tatar has waived appellate review of these rulings. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005); see also Bouyer v. Simon, 22 F. App'x 611, 612 (6th Cir. 2001) (explaining that, although pro se filings should be liberally construed, “pro se parties must still brief the issues advanced and reasonably comply” with the briefing standards set forth in Federal Rule of Appellate Procedure 28). Thus, Tatar's appeal is limited to the issue of whether his claim for a refund for taxes paid for tax year 1996 was subject to dismissal under Rule 12(b)(6).

We review de novo a “district court's dismissal [of a complaint] for failure to state a claim” upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Lawrence v. Welch, 531 F.3d 364, 372 (6th Cir. 2008). To survive that analysis, “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)). In resolving a defendant's Rule 12(b)(6) motion, a court may consider documents attached to the complaint, public records, items appearing in the record, and items attached to the defendant's motion to dismiss if they are referred to in the complaint and are central to its claims. See Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

The district court properly concluded that, assuming the truth of all of Tatar's allegations, he could prove no set of facts in support of his refund claim that would entitle him to relief. As set forth above, Tatar asserted that he was entitled to a refund because he is not subject to taxation by the federal government. We have consistently rejected similar arguments raised by other tax protestors, see, e.g., Boggs v. Comm'r, 569 F.3d 235, 238 (6th Cir. 2009); United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994); Martin v. Comm'r, 756 F.2d 38, 40 (6th Cir. 1985), and, in fact, rejected some of these very arguments in a previous appeal brought by Tatar, Tatar v. Mayer, No. 13-2395 (6th Cir. Oct. 31, 2014) (order). Tatar's allegations fail to state a plausible claim for relief.

Accordingly, we AFFIRM the district court's judgment.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk