United States District Court, W.D. Washington, Tacoma
STEVEN C. CLIFT, Plaintiff,
UNITED STATES INTERNAL REVENUE SERVICE, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on the United States of
America's (“United States”) motion to dismiss
(Dkt. 34). The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby grants the motion for the reasons
February 16, 2016, Plaintiff Steven Clift
(“Clift”) filed a pro se complaint
against the Internal Revenue Service (“IRS”),
alleging the IRS improperly assessed civil penalties for
frivolous tax submissions and issued false levies. Dkt. 1.
Clift asserted six claims: (1) abuse of process; (2) breach
of fiduciary duty; (3) conspiracy; (4) fraud; (5) infliction
of emotional distress; and (6) negligence. Id. at
3-4. Liberally construed, Clift's complaint appears to
assert a damages claim under 26 U.S.C. § 7433 and a
refund claim under 28 U.S.C. § 1346. See Dkt. 1
at 2-5. Clift seeks damages and an order directing the IRS to
process his tax returns, remove all liens and levies, and
return all levied funds. Id. at 5.
April 18, 2016, the United States moved to dismiss for lack of
jurisdiction and failure to state a claim. Dkt. 8. The next
day, the United States filed a preacipe to its motion. Dkt.
11. On May 10, 2016, Clift responded. Dkt. 14. On May 13,
2016, the United States replied. Dkt. 15. The Court granted
the United States' motion and granted Clift leave to
amend his complaint to cure the deficiencies in his claims
for damages under 26 U.S.C. § 7433 and his claim for
refund under 28 U.S.C. § 1346. Dkt. 18.
22, 2016, Clift filed an amended complaint, properly naming
the United States as defendant. Dkt. 19. On August 5, 2016,
the United States moved to dismiss the amended complaint.
Dkt. 21. On August 10, 2016, Clift responded. Dkt. 23. On
September 2, 2016, the United States replied. Dkt. 26. On
October 14, 2016, the Court granted the United States'
motion, dismissed Clift's amended complaint, and once
again granted Clift leave to amend his claim. Dkt. 28.
November 4, 2016, Clift filed a second amended complaint.
Dkt. 29. On December 19, 2016, the United States again moved
to dismiss Clift's claims. Dkt. 34. On January 3, 2017,
Clift responded. Dkt. 35. On January 13, 2017, the United
States replied. Dkt. 38.
its previous motions, the United States again moves to
dismiss Clift's claims for lack of subject matter
jurisdiction and for failure to state a claim. Dkt. 34.
12(b)(1) provides for dismissal of claims if the Court lacks
subject matter jurisdiction. Federal courts are courts of
limited jurisdiction, “possess[ing] only that power
authorized by Constitution and statute.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). When jurisdiction is challenged in a Rule 12(b)(1)
motion, “[i]t is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
to dismiss brought under Rule 12(b)(6) may be based on either
the lack of a cognizable legal theory or the absence of
sufficient facts alleged under such a theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). Material allegations are taken as admitted and
the complaint is construed in the plaintiff's favor.
Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir.
1983). To survive a motion to dismiss, the complaint does not
require detailed factual allegations but must provide the
grounds for entitlement to relief and not merely a
“formulaic recitation” of the elements of a cause
of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 546.
stated in the Court's previous orders dismissing
Clift's claims, “[a] taxpayer cannot seek damages
under § 7433 for improper assessment of taxes.”
Miller v. United States, 66 F.3d 220, 223 (9th Cir.
1995) (quoting Shaw v. United States, 20 F.3d 182,
184 (5th Cir. 1994)). Because the assessment of civil
penalties against Clift under 26 U.S.C. § 6702 for
frivolous tax ...