Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 10, 1983


The opinion of the court was delivered by: Bua, District Judge.


The dispute in this case stems from the filing by an IRS collecting officer of a federal tax lien against all real and personal property of the plaintiff for allegedly unpaid federal estate taxes. The plaintiff individually and as executor of the estate challenges the legality of the lien and seeks to enjoin its enforcement. He also seeks compensatory and punitive damages alleging a deprivation of his Constitutional rights. The case is now before this Court on the defendants' motion for summary judgment in which defendants have raised a number of immunity and statutory defenses. Though this Court sympathizes with plaintiff's frustration regarding final settlement of his tax liability, it finds that no genuine issue of material fact is presented, and that defendants are entitled to summary judgment.

On May 16, 1978, plaintiff filed a federal tax return (Form 706) with the Internal Revenue Service showing $3,426.47 in estate taxes due from the Estate of Catherine McCarthy. Contemporaneously, plaintiff delivered to the IRS a cashier's check for this amount. In July, 1978 and again in November, however, plaintiff received from the IRS a request for taxes due in an amount far above that which was shown on plaintiff's original return.*fn1 Between the receipt of these notices plaintiff also received a closing letter dated September 27, 1978. Plaintiff's tax liability as set forth in that letter contradicted that which was shown in the earlier and later notices. According to the letter, which expressly stated it was not a formal closing agreement,*fn2 plaintiff's net estate tax was $3,426.47, a figure corresponding to the amount shown originally on plaintiff's return. In addition, however, $1,010.81 in penalties was assessed. Plaintiff has never disputed the amounts contained in the letter, however, having received conflicting requests for payment, he refrained from paying any more than the $3,426.87 which he submitted with his original return. Plaintiff's attempts to rectify the problem through discussions with various IRS officials were unsuccessful.

On April 30, 1981, plaintiff received another letter from the IRS, the contents of which form the heart of this dispute. The letter, signed by defendant Bergherm and issued by defendant Straughn, informed plaintiff that he would be subject to a levy upon all his real and personal property within ten days if he failed to pay his federal taxes as had previously been demanded, and as shown on the back of the letter. The figure this time was $1,509.96, which was composed of $1,010.81 in penalties, (the amount shown in the September, 1978 closing letter), $252.33 in assessed interest, and $246.82 in "accumulated interest." The only portion of this amount which plaintiff disputed and still refuses to pay is the $246.82 accumulated interest.

Following receipt of this letter, plaintiff finally submitted to the IRS his payment for $1,010.81 in assessed penalties plus $252.33 in penalties. He then informed defendant Straughn of his refusal to pay the $246.82 accumulated interest, taking the position that this constituted interest on a penalty and that such interest could be imposed only after there has been demand for payment. It was, and apparently still is, plaintiff's understanding that prior notices of July and November, 1978 were erroneous and withdrawn. Straughn, nevertheless, explained that a demand in an amount of $22,296.01 had been made, presumably referring to the November notice, and that if that be erroneous, it was not within his authority to abate it. Straughn then informed plaintiff that he would have to pay the accumulated interest until the matter could be resolved and that refusal to pay would result in the filing of a lien for the full amount, $22,296.80. Plaintiff remained adamant, however, and notice of tax lien was ultimately filed by Straughn with the Recorder of Deeds in Cook County, Illinois on August 6, 1981.

Without having paid the $246.82 accumulated interest, plaintiff commenced this suit seeking compensatory and punitive damages against Straughn alleging both violations of his Constitutional rights and various state-law-based tort claims; a declaration that the lien constitutes a cloud upon his title to the property and that it is null and void; an injunction against its enforcement and mandamus ordering its release. Defendants have moved for summary judgment raising immunity as a defense to the damage claims, and the Anti-Injunction and Declaratory Judgment Act (26 U.S.C. § 7421(a) and 28 U.S.C. § 2201 respectively) as bars to any equitable relief.


Plaintiff claims that IRS Agent Straughn filed a Notice of Tax Lien against his property without legal justification and in bad faith. The complaint alleges: that prior notices for assessed taxes, a prerequisite for the filing of any tax lien, were based upon erroneous amounts and have subsequently been withdrawn; that plaintiff has fully satisfied his estate tax liability; that notwithstanding knowledge of these matters, Straughn filed a notice of lien with intent to harass, embarrass and intimidate plaintiff. Seeking compensatory and punitive damages against Straughn, the plaintiff invokes this Court's jurisdiction under 28 U.S.C. § 1331, alleging a violation of his fifth amendment right to due process and fourth amendment right against unlawful seizure of property. Pendent to his Constitutional claim is a claim based on a violation of state tort law.

The defendant denies any bad faith conduct on his part and raises as a defense the doctrine of immunity in all its forms — sovereign, absolute, and qualified. The Court does not reach defendants' immunity arguments since plaintiff has failed to set forth a constitutional basis which would support his cause of action.

Plaintiff has characterized his claim against the defendant as a constitutional tort or what is commonly known as a Bivens action. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This type of suit is one for damages against a federal official whose conduct violates a "specific federal constitutional guarantee." Simon v. United States, 644 F.2d 490, 496 (5th Cir. 1981). In the instant case, plaintiff has failed to make out a claim against Straughn based upon a violation of either the fourth or fifth amendment.

The complaint alleges that Straughn violated plaintiff's fourth amendment right against unlawful seizure by filing a lien against his property. There is no fourth amendment deprivation, however, where the government, in an attempt to collect taxes, does not enter the taxpayer's own premises. Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982) citing G.M. Leasing v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977). The filing of the tax lien by Straughn did not involve an invasion of plaintiff's premises or seizure of his personal property and as such cannot establish a fourth amendment violation. See Christy v. Keenan, 81-2 U.S.T.C. ¶ 9701 (D. Md. 1980).

Plaintiff's reliance upon the fifth amendment as a basis for a constitutional claim against Straughn is equally unavailing. The gist of plaintiff's claim is that Straughn harassed him into paying taxes which are not due and owing and thereby has "taken" his property without due process.*fn3

In Rutherford v. United States, 528 F. Supp. 167 (W.D.Texas, 1981), the Court, addressing precisely the same argument, dismissed the suit for failure to state a claim based upon a constitutional violation. The plaintiff alleged that an IRS agent audited his return with intent to harass him into paying taxes which were not due. The Court found the allegation could not support a claim based upon the fifth amendment's proscription against the taking of property without due process, since administrative remedies under the Internal Revenue Code were available "to compensate plaintiffs for any wrongful property loss that they may have suffered." 528 F. Supp. at 171. The Court relied primarily on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) where the Supreme Court held a prisoner's due process rights were not violated by prison officials who negligently lost personal property items belonging to the prisoner. Of significance to the Rutherford Court was Parratt's reliance upon the adequacy of state remedies which were available and considered sufficient to compensate plaintiff for his property loss.*fn4 Rutherford analogized the sufficiency of the remedy in Parratt to that available to the taxpayer claiming to have been wronged by an erroneous tax assessment. These remedies include a redetermination of one's tax assessment prior to payment in the Tax Court or a suit for refund in the District Court upon payment.

The analysis in Rutherford is fully applicable to the instant case. Here the plaintiff, as in Rutherford, disputes the validity of his tax assessments, bringing a damage suit alleging that he has been harassed and intimidated into payment. He does not claim he was denied an opportunity to contest the merits of the assessment in the Tax Court or that he has been prevented from paying and seeking a refund in this Court. Where constitutionally valid remedies such as these exist, see Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), and plaintiff does not allege he was precluded from their use, the requirements of due process are satisfied. See Flower Cab Company v. Petitte, 685 F.2d 192 (7th Cir. 1982) (no due process violation where there are adequate ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.