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BLEAVINS v. U.S.

November 16, 1992

JOHN C. BLEAVINS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

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.

I. Facts

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 him.)

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.

III. Analysis

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) which states:

  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, 410 (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, ...


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