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Gary D. Bowers v. United States of America and Commissioner of Internal Revenue

May 22, 2012

GARY D. BOWERS, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND COMMISSIONER OF INTERNAL REVENUE, DEFENDANTS.



The opinion of the court was delivered by: James E. Shadid Chief United States District Judge

E-FILED

Tuesday, 22 May, 2012 03:01:55 PM Clerk, U.S. District Court, ILCD

ORDER

This matter is now before the Court on Defendant's Motion to Dismiss or Alternatively for Summary Judgment. For the reasons set forth below, the Motion to Dismiss [14] is GRANTED.

BACKGROUND

Plaintiff, Gary Bowers, is a resident of Pekin, Illinois. He has received monthly social security benefits for a number of years and continues to receive these benefits. In June 2010, the Internal Revenue Service placed a levy against Bowers' social security benefits to collect overdue tax debt, requiring the Social Security Administration to remit $1,107.80 of each of the checks since June 2010 to the IRS and leaving a $779.17 monthly benefit for Bowers. He contends that this levy exceeds the 15% maximum allowed under IRS regulations and that all efforts to remedy the situation through the administrative process have failed.

Defendants have now moved to dismiss the Complaint. The matter is fully briefed, and this Order follows.

DEFENDANTS MOTION TO DISMISS

I. Legal Standard

Courts have traditionally held that a complaint should not be dismissed unless it appears from the pleadings that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41 (1957); Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th

Cir. 1993). Rather, a complaint should be construed broadly and liberally in conformity with the mandate in Federal Rule of Civil Procedure 8(f). More recently, the Supreme Court has phrased this standard as requiring a showing sufficient "to raise a right to relief beyond a speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). Furthermore, the claim for relief must be "plausible on its face." Id.; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009).

For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff; its well-pleaded factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. V. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969 (7th Cir. 1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992).

II. Analysis

The Complaint cites 26 U.S.C. ยง 7442 as the basis for jurisdiction. Section 7442 ...


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