The opinion of the court was delivered by: Goettel, District Judge.
The Internal Revenue Service of the United States claims
that the plaintiff in this case is a tax protestor. The
plaintiff says that he is not. Nevertheless, in the years 1980
to 1982 and 1984 to 1987, plaintiff Boyd Richard Brewer, Sr.
did not file tax returns. Despite being employed for many
years, he claims that the United States tax laws are not
applicable to him. This decision addresses a number of motions
relating to litigation brought by the plaintiff in an effort
to regain various properties which were seized and sold by the
Internal Revenue Service ("IRS") to satisfy the tax
deficiencies resulting from Mr. Brewer's failure to pay taxes
in the years 1980 to 1982 and 1984 to 1987.
The IRS determined that the plaintiff owed taxes for the
years 1980, 1981, 1982, 1984, 1985, 1986 and 1987. As required
by law, notices of deficiency for each of these years were
sent to the plaintiff. Plaintiff has acknowledged receiving
these notices indicating an assessment of $59,906.43.
Complaint ¶¶ 8-10. The notices informed him of his right to
challenge the deficiencies in Tax Court if he wished to contest
his tax liability without paying first. In response to the
first notice concerning 1980, plaintiff petitioned the Tax
Court. That petition was dismissed, however, for lack of
Beginning in 1990, the IRS began to collect the amounts
assessed against the plaintiff by filing liens, issuing
levies, and seizing and selling the plaintiff's property.
Specifically, the IRS seized past wages from plaintiff's
employers and money held by Local 4361 and 417 of the Iron
Workers union in annuity fund and vacation funds for the
plaintiff's benefit. The IRS also seized and sold property
owned by the plaintiff in Florida. Property owned by the
plaintiff in Newburgh, New York was seized and subsequently
released, and the IRS no longer claims a lien on this
Rather than challenge the merits of the tax assessments,
plaintiff has brought this suit to quiet title to his past
wages, his annuity fund, the Florida property and the New York
property. Plaintiff's complaint focuses on purported defects
in the manner in which the IRS assessed taxes against him and
in the seizure and sale of his property.
II. PRELIMINARY INJUNCTION
Here, it is undisputed that the IRS issued notice of
deficiencies to the plaintiff. Plaintiff's argument focuses on
purported deficiencies in the assessment process and in the
notices themselves rather then on the lack of notice.
Moreover, the notices sent to the plaintiff informed him of
his opportunity to litigate in Tax Court. Because plaintiff
was afforded "an opportunity to exhaust his administrative
remedies, [including] an opportunity to litigate [his] tax
liability fully in the Tax Court", assessment and collection
was appropriate. Moreover, because the Commissioner was
proceeding after notice and demand for payment, "the
Anti-Injunction Act applies in full force and `no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person.'"
Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614,
616-19, 96 S.Ct. 1062, 1065-67, 47 L.Ed.2d 278 (1976) (quoting
26 U.S.C. § 7421(a)).
Furthermore, we do not find that the judicially created
exception to the Anti-Injunction Act is applicable here. In
Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8
L.Ed.2d 292 (1962), the Supreme Court held that an injunction
may be obtained against the collection of any tax if (1) it is
"clear that under no circumstances could the Government
ultimately prevail" and (2) "equity jurisdiction" otherwise
exists, i.e. the taxpayer shows that he would otherwise suffer
irreparable injury. Id. at 7, 82 S.Ct. at 1129.
Since Mr. Brewer is challenging the correctness of the
procedures followed by the IRS in assessing and collecting his
taxes, our focus necessarily must be on whether any scenario
will emerge in which the procedures followed will stand. While
the plaintiff asserts several grounds which demonstrate, he
argues, the inadequacy of the notices of deficiency, we
cannot, without clear proof, find that plaintiff has an
absolute certainty of success on the merits. Indeed, without
this proof, this court is obligated to presume that the IRS
complied with the statutory prerequisites to tax assessments.
Borg-Warner Corp. v. Commissioner of Internal Revenue,
660 F.2d 324, 330 (7th Cir. 1981); United States v. Ahrens,
530 F.2d 781, 785-86 (8th Cir. 1976); Lesser v. United States,
368 F.2d 306, 309 (2d Cir. 1966). Such proof is lacking here.
Moreover, in the tax collection context, to obtain
injunctive relief, the showing of irreparable harm by
plaintiff must pass a rigorous test. Thus, despite plaintiff's
generalized contentions that he and his family will be thrown
into the streets and that his medical condition is being
aggravated by the stress of his prolonged struggle with the
IRS, not one of his assertions of harm is sufficient to avoid
the proscription of the Anti-Injunction Act. Indeed, the
Supreme Court has held that injunctive relief is not available
simply because collection of the taxes would cause an
irreparable injury such as financial ruination. Williams
Packing, 370 U.S. at 6, 82 S.Ct. at 1128. In addition, the
plaintiff has other legal remedies available to ameliorate any
potential harm such as working out a settlement with the IRS or
paying his taxes and instituting a refund suit in Tax.
Plaintiff has chosen not to take advantage of this opportunity
and has allowed, on the basis of his own legal conclusions, his
obligation to the government to amass into an untenable size.
When the absence of a remedy at law is due to a plaintiff's
failure to pursue a claim before Tax Court, equity should not
intervene. Shapiro, 424 U.S. at 634 n. 15, 96 S.Ct. at 1074 n.
Plaintiff's motion for a preliminary ...