UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 22, 2006
RICHARD ULLOA, PLAINTIFF,
UNITED STATES OF AMERICA; INTERNAL REVENUE SERVICE; TERRY H. COX, DEFENDANTS.
The opinion of the court was delivered by: Norman A. Mordue, Chief United States District Judge
DECISION and ORDER
Presently before the Court is a complaint filed pro se by plaintiff Richard Ulloa. The complaint challenges a levy issued by the Internal Revenue Service ("IRS") to recover unpaid taxes. Dkt. No. 1. Plaintiff has also filed a motion encaptioned "Motion to Stay," which appears to seek injunctive relief. Dkt. No. 2. The statutory filing fee for this action has been paid.
According to the complaint, the notice of levy is "unlawful and invalid" because, inter alia, the notice of levy was issued "without the 'due process' of a Collection Due Process hearing," the notice of levy was issued without "issuance of a 'Notice and Demand,'" and plaintiff never received the original Notice of Levy from the IRS.*fn1 Dkt. No. 1 at 1-2.
II. Motion to Stay
Plaintiff's "Motion to stay" is construed as seeking a preliminary injunction to stay further collection under the notice of levy until a Collection Due Process Hearing can be held. Dkt. No. 2. A preliminary injunction is an extraordinary remedy that should not be granted as a routine matter. Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). In most cases, the party seeking the injunction must show (a) a threat of irreparable injury if the injunction is not granted and (b) either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party. Burgess v. Friedmann, No. 9:05-CV-0379, 2005 WL 3531459, at *2 (N.D.N.Y. Dec. 22, 2005) (citing Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)).
However, where, as in this case, a plaintiff seeks an injunction to "prevent government action taken pursuant to statutory authority, which is presumed to be in the public interest," the second "serious questions" prong is inapplicable and the plaintiff is required to demonstrate a likelihood of success on the merits. See Molloy v. Metropolitan Trans. Auth., 94 F.3d 808, 811 (2d Cir.1996) (citing Able v. United States, 44 F.3d 128, 130 (2d Cir.1995)). In addition, the courts are barred from entertaining suits that seek to restrain the assessment or collection of any tax. 26 U.S.C. § 7421. The Anti-Injunction Act withdraws jurisdiction from the state and federal courts in any suit seeking an injunction prohibiting the collection of federal taxes and requires that the legal right to a disputed sum be determined in a suit for refund. Id.; see Mullings v. Commissioner, 78 A.F.T.R.2d (RIA) 6109, 96-2 U.S. Tax Cas. (CCH) P50531, 1996 WL 576999 (E.D.N.Y.1996), aff'd,112 F.3d 504 (2d Cir.1997).
Celauro v. U.S., 371 F. Supp.2d 219, 222-23 (E.D.N.Y. 2005).*fn2
In support of his request for injunctive relief, plaintiff merely submits a one page document setting forth plaintiff's conclusory statements that the Notice of Levy was issued without due process, and that if collection continues under the levy, plaintiff will be left with "basically no monies to live on." Dkt. No. 3. Plaintiff has not met the stringent standard to warrant the injunctive relief that he requests. Plaintiff has not established, with credible evidence, that he is likely to succeed on the merits of his underlying action.
While the Supreme Court recognizes one judicial exception to the Anti-Injunction Act,*fn3 plaintiff has not established that he fits into the judicial exception. The judicial "exception exists only when the plaintiff can show both: (1) that the government could 'under no circumstances' ultimately prevail and (2) that equity jurisdiction otherwise exists."*fn4 Tucker v. United States, No. 96-CV-6093, 1998 WL 708923, at *2 (E.D.N.Y. Jul. 6, 1998) (emphasis added) (citing Bob Jones University v. Simon, 416 U.S. 725, 736 (1974); Enochs v. Williams Packing and Navigation Co., 370 U.S. 1 (1962)). To take advantage of the judicial exception, plaintiff must prove "that the government has no possible chance of succeeding on the merits....'" Tien v. Goldenberg, No. 94-CV-3868, 1996 WL 271591, at *2 (E.D.N.Y. Jan. 30, 1996, as amended May 29, 1996) (citations omitted). In deciding whether the judicial exception is applicable, the court must "take the view of the facts that is most liberal to the Commissioner, not to the taxpayer seeking injunctive relief." Tucker, 1998 WL 708923, at *2 (citations omitted). The Court has reviewed the allegations set forth in plaintiff's complaint in conjunction with the relevant law and finds that plaintiff has failed to meet this burden.
Based on the foregoing, plaintiff's "Motion to Stay" is denied. WHEREFORE, it is hereby
ORDERED, that it is the responsibility of plaintiff to immediately serve the defendants with a copy of the summons and complaint in accordance with the Federal Rules of Civil Procedure, and it is further
ORDERED, that the parties shall comply with General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, and it is further
ORDERED, that a formal response to plaintiff's complaint be filed by the defendants or their counsel as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants, and it is further
ORDERED, that the motion to stay (Dkt. No. 2) is DENIED, and it is further ORDERED, that any paper sent by a party to the Court or the Clerk shall be accompanied by a certificate setting forth the date a true and correct copy of it was mailed to all opposing parties or their counsel. Any letter or other document received by the Clerk or the Court which does not include a certificate of service which clearly states that an identical copy was served upon all opposing parties or their attorneys is to be returned, without processing, by the Clerk. Plaintiff shall also comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action. All motions shall comply with the Local Rules of Practice of the Northern District, and it is further
ORDERED, that the Clerk serve a copy of this Order and General Order 25 on the plaintiff.