United States District Court, Central District of Illinois, Springfield Division
November 16, 1992
JOHN C. BLEAVINS, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge:
The Government went after Bleavins to collect taxes.
This lawsuit is a direct result of that lawful effort.
The Government is entitled to summary judgment in its favor.
In his complaint, Plaintiff claims that the United States
Internal Revenue Service (IRS) willfully violated the Internal
Revenue Code, 26 U.S.C. § 6103, by disclosing tax return
information through the filing of a federal tax lien and the
issuance of various notices of levy. Therefore, Bleavins
argues, he is eligible to receive damages for unlawful
disclosure under 26 U.S.C. § 7431. (He also asserts that the
IRS did not act in good faith because it was aware, through
letters from Plaintiff, that the tax laws did not apply to
II. Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment should be entered
"if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Unquestionably, in determining whether a genuine issue of
material fact exists, the evidence is to be taken in the light
most favorable to the non-moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142
(1970). Nevertheless, the rule is also well established that
the mere existence of some factual dispute will not frustrate
an otherwise proper summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91
L.Ed.2d 202 (1986). Thus, the "preliminary question for the
judge [is] not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed
to find a verdict for the party producing it upon whom the onus
of proof is imposed." Id. at 251, 106 S.Ct. at 2511 (quoting
Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20
L.Ed. 867 (1872)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Applying
this standard, the Court now turns to the case at bar.
First, we will consider the IRS' motion for summary judgment.
Before damages are available under § 7431, a violation of §
6103 must be shown. The IRS maintains that it followed federal
law when filing a lien against Plaintiff's property and the
levy against Plaintiff's income. The IRS notes § 6103(k)(6)
An Internal Revenue officer or employee may, in
connection with his official duties relating to
any audit, collection activity, or civil or
criminal tax investigation . . . disclose return
information to the extent that such disclosure is
necessary in obtaining information . . . or with
respect to the enforcement of any other provision
of this title.
(Emphasis added). In other words, the IRS may disclose
information when attempting to collect taxes. This is precisely
what the IRS did. Maisano v. United States, 908 F.2d 408
(9th Cir. 1990).
When filing a levy under § 6331, the IRS is required to
provide the taxpayer with a demand for payment and notification
ten days prior to the levy. IRS Officer Alexander gave the
notification by registered mail in compliance with § 6331(d).
According to Officer Alexander, Bleavins refused to pay the
taxes that the IRS determined he owed, he further refused to
provide any documentation to support his claim that he was not
required to file income tax returns, and he stated that his
financial information was none of the IRS officer's business.
Assuming Bleavins believes this, he is mistaken. Not only
does the IRS have the right to such information, it is
Bleavins' responsibility to provide the information, if he
wishes to clear up what he claims is IRS error. Otherwise, he
is in no position to complain of that error. A certified copy
of a Certificate of Assessments and Payments is presumptively
accurate and Plaintiff has the burden of discrediting
it. Gold Emporium v. Commissioner of Internal Revenue,
910 F.2d 1374, 1378 (7th Cir. 1990); Ruth v. United States,
823 F.2d 1091, 1093 (7th Cir. 1987); United States v. Pomponio,
635 F.2d 293, 296 (4th Cir. 1980); Psaty v. United States,
442 F.2d 1154, 1159-60 (3d Cir. 1971). Regardless, § 7431 does not apply
to disputed merits of an assessment; it only addresses civil
damages for disclosure violations of § 6103.
The IRS also asserts an affirmative defense that it acted in
good faith by following departmental regulations. Similarly,
however, it is unnecessary to ask the good faith question under
§ 7431, because this Court has determined that there was no
violation of § 6103. Maisano at 410 n. 1.
Second, we turn to Plaintiff's motion to strike. Plaintiff
states that the Certificates of Assessments and Payments are
not valid, prove nothing, and should not be stricken because
they are not authenticated by the custodian of individual tax
files located in West Virginia. Plaintiff refers to United
States v. Buford, 889 F.2d 1406 (5th Cir. 1989), which is
clearly distinguishable because, as a criminal case, the
government has the burden of proof. More importantly, Plaintiff
incorrectly asserts that a certificate must be a non-computer
generated tax file original in order to be proof of a tax debt.
United States v. Chila, 871 F.2d 1015, 1017-18 (11th Cir.),
cert. denied, 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501
(1989); United States v. Dixon, 672 F. Supp. 503, 505 (M.D.Ala.
1987), aff'd per curiam, 849 F.2d 1478 (11th Cir. 1988).
Plaintiff also claims error is evidenced by the certificates
showing his current address and not his address from when the
tax burden accrued. In doing so, Plaintiff ignored the fact
that the certificates were printed and signed by a manager of
certification at the time they were sent in January 1991, when
Plaintiff did live at his current address.
Third, Plaintiff says the IRS cannot use an unsworn affidavit
to support its claim that the Plaintiff owes taxes. On the
contrary, 28 U.S.C. § 1746 states that an unsworn declaration
is admissible with the full force and effect of a sworn
affidavit if it is signed under the penalty of perjury. Officer
Alexander's perjury statement in his declaration uses the exact
wording suggested by the statute.
Plaintiff also maintains that Officer Alexander can attest
only to what he saw on a computer screen, and "[w]hat a
computer says is blatant hearsay!" While, no doubt there are
times when computer operators might share Plaintiff's distaste
for the machines, in the eyes of the law, official computer
generated records of tax information are accepted as completely
valid representations of tax liability. Fed.R.Evid. 803(8);
see Chila, 871 F.2d at 1017-18; Dixon, 672 F. Supp. at 505;
Hughes v. United States, 953 F.2d 531, 540 (9th Cir. 1992);
United States v. Farris, 517 F.2d 226, 227-29 (7th Cir.), cert.
denied, 423 U.S. 892, 96 S.Ct. 189, 46 L.Ed.2d 123 (1975).
Finally, we briefly address Plaintiff's motion for summary
judgment. The arguments he raises are refuted in our discussion
of the other two motions. But, in essence, Plaintiff claims
that the IRS' evidence is hearsay which provides no factual or
affirmative defenses to Plaintiff's complaint. Again, this
Court need not reach any conclusion regarding affirmative
defenses, because the IRS has provided ample evidence to show
full compliance with § 6103(k)(6), and Plaintiff has provided
absolutely nothing with which to sustain his complaint.
Ergo, for the reasons noted above, Defendant's motion for
summary judgment is ALLOWED.
Plaintiff's motion to strike is DENIED.
Plaintiff's motion for summary judgment is DENIED.
This case is DISMISSED WITH PREJUDICE.
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