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MORELLI v. ALEXANDER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 4, 1996

JOHN D. MORELLI, Plaintiff, against EUGENE ALEXANDER, ARTHUR L. BRUNWASSER and CAROL M. LANDY, Defendants.

The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION

 This action for mandamus is before this Court on Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Pro se Plaintiff John D. Morelli ("Morelli") brings this action under 28 U.S.C. § 1361 to compel Defendants, Eugene Alexander, Arthur L. Brunwasser and Carol M. Landy, agents of the Internal Revenue Service ("the Agents"), to strictly comply with the Internal Revenue Code and regulations.

 Morelli charges that the Agents violated various duties under the Internal Revenue Code when they sent him several official notices without signing them under penalty of perjury, 26 U.S.C. § 6065, *fn1" when they failed to prepare a tax return for him, 26 U.S.C § 6020, and when they sent him a defective Notice of Intent to Levy, 26 U.S.C. § 6031.

 DISCUSSION

 A. Mandamus Jurisdiction

 A motion under Rule 12(b)(1) challenges subject matter jurisdiction. The federal courts are, of course, courts of limited jurisdiction. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978). A federal court is presumed to lack jurisdiction in a particular case unless jurisdiction is established. See W.G. v. Senatore, 18 F.3d 60, 64 (2nd Cir. 1994). Here, Morelli asserts that the Court has subject matter jurisdiction under the Mandamus Statute, 28 U.S.C. § 1361, which provides:

 

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

 

28 U.S.C § 1361. *fn2"

 Mandamus is a drastic remedy available only in extraordinary situations. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980). Mandamus is available only when three conditions are met: (1) the plaintiff has a clear right to the relief sought, (2) the defendant has a plainly defined and peremptory duty to perform the act in question, and (3) no other adequate remedy is available. See Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989). Where the party seeking relief under § 1361 fails to demonstrate the existence of any of the necessary criteria, mandamus is not available. See, e.g., Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983).

 

1. The Agents Failure to Verify the Notices

 Morelli argues that the Agents violated their duty under 26 U.S.C. § 6065 by failing to sign the notices that they sent to Morelli. Section 6065 states:

 

Except as otherwise provided by the Secretary, any return, declaration statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.

 Morelli has incorrectly interpreted this provision. Section 6065 was enacted to permit the taxpayer to submit a verified return rather than a notarized return, see, e.g., Cohen v. United States, 201 F.2d 386, 393 (9th Cir.) (construing § 6065's predecessor provision), cert. denied, 345 U.S. 951, 97 L. Ed. 1374, 73 S. Ct. 864 (1953), and does not apply to notices issued by IRS agents. *fn3" See Pursell v. United States, 1995 U.S. Dist. LEXIS 2797, *20, 1995 WL 273175 at *6 (E.D.Cal. 1995); Mueller v. Esselstrom, 1995 U.S. Dist. LEXIS 4343, at *7, 1995 WL 462219 at *2-3 (C.D.Cal. 1995); In re White, 168 Bankr. 825, 833 (Bankr. D. Conn. 1994). Accordingly, Morelli has failed to satisfy the second prong for mandamus jurisdiction which requires that there exist a plainly defined and peremptory duty to be performed. See Mueller, 1995 U.S. Dist. LEXIS 4343, at *5, 1995 WL 462219 at *2-3 (action to require IRS agent to sign Notice of Intent to Levy failed to satisfy jurisdictional requirements of 28 U.S.C. § 1361). Further, other adequate remedies are available to Morelli, such as paying the assessed taxes and seeking a refund pursuant to 26 U.S.C. § 7422. See Mueller, 1995 U.S. Dist. LEXIS 4343, at *8, 1995 WL 462219 at *3 See also Davidson v. C.I.R., 589 F. Supp. 158, 161-62 (S.D.N.Y. 1984) (injunction restraining IRS from enforcing a levy denied because payment of the tax assessed followed by a suit for refund constitutes an adequate remedy). Morelli therefore also fails to satisfy the third requirement for mandamus jurisdiction.

 

2. The Agents' Failure to Make a Substitute Return

 Section 6020(b)(1) authorizes the Secretary to make a substitute tax return for any person who fails to make one on his own. Morelli requests the remedy of mandamus which would have the effect of ordering the Agents to prepare a tax return for him. However, section 6020 does not require the IRS to prepare a return for the taxpayer before issuing a notice of deficiency. See, e.g., Schiff v. United States, 919 F.2d 830, 832-33 (2nd Cir. 1990), cert. denied, 501 U.S. 1238, 115 L. Ed. 2d 1037, 111 S. Ct. 2871 (1991); United States v. Stafford, 983 F.2d 25, 27 (5th Cir. 1993), cert. denied, 506 U.S. 891 (1992); Geiselman v. United States, 961 F.2d 1, 5 (1st Cir. 1992); Roat v. C.I.R., 847 F.2d 1379, 1381 (9th Cir. 1988). Consequently, the Agents have no duty to file a return for Morelli, and the Court lacks mandamus jurisdiction over this claim as well.

 B. Morelli's Challenge to the Adequacy of the Notice of Intent Is Barred by the Anti-Injunction Act

 Morelli's final argument is that the Notice of Intent, dated January 18, 1993, fails to comply with the substantive requirements of 26 U.S.C. § 6331(d)(4). *fn4" We do not reach the merits of this claim because Morelli's action to seek review of the Notice is barred by the Anti-Injunction Act, 26 U.S.C. § 7421. See Randell v. United States, 64 F.3d 101, 106 (2nd Cir. 1995). The purpose of § 7421 is to protect the government's need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference, and to require that the taxpayer's legal rights be determined in a suit for refund. *fn5" See Randell, 64 F.3d at 106. Section 7421 has been broadly construed to include not only assessment and collection, but also "activities which are intended to or may culminate in the assessment or collection of taxes." Linn v. Chivatero, 714 F.2d 1278, 1282 (5th Cir. 1983). See also Weiner v. I.R.S., 986 F.2d 12, 13 (2nd Cir. 1993) (taxpayer suit seeking apology or explanation of errors that caused improper levy barred by 26 U.S.C. § 7421); Bianco v. I.R.S., 1994 U.S. Dist. LEXIS 14067, *8, 1994 WL 538020 at *2 (S.D.N.Y. 1994) (claim regarding the state of taxpayer's records and requests for corrections barred by 26 U.S.C. § 7421). Therefore, the Anti-Injunction Act divests this Court of jurisdiction to hear Morelli's claim for preenforcement review of the Notices he received under 26 U.S.C. § 6331.

 CONCLUSION

 For the reasons stated, Defendants' motion to dismiss is granted.

 The clerk shall enter judgment.

 SO ORDERED

 White Plains, NY

 April 4, 1996

 Barrington D. Parker, Jr.

 U.S.D.J.


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