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Nero L. Wells, Jr v. New York City Police Pension Fund

March 31, 2011

NERO L. WELLS, JR.,
PLAINTIFF,
v.
NEW YORK CITY POLICE PENSION FUND, AND THE UNITED STATES OF AMERICA,
DEFENDANTS.



OPINION

Plaintiff Nero Wells, Jr., a former New York City Police Department officer, brings this action pro se against the United States of America and the New York City Police Pension Fund ("PPF") concerning an alleged tax overpayment to the Internal Revenue Service. Plaintiff claims that PPF improperly deducted, and the IRS wrongly collected, on a tax levy against plaintiff's pension benefits after the levy had been satisfied. He seeks $19,033.11, the amount of the alleged overpayment, as well as interest and punitive damages.

Currently before the court are the Government's motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for summary judgment under Fed. R. Civ. P. 56 and PPF's motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

The Government's motion for summary judgment and PPF's motion to dismiss are granted, and the case is dismissed in its entirety.

BACKGROUND

The Facts

The following facts are undisputed, except where otherwise indicated.

On April 19, 1985, the IRS served a "Levy on Wages, Salary, and Other Income" on PPF for $8,711.90 in unpaid income taxes, penalties, and interest.*fn1 According to the Levy, these unpaid income taxes, penalties, and interest are associated with plaintiff's returns covering the tax periods ending December 31, 1978, December 31, 1979, December 31, 1980, December 31, 1981, and December 31, 1983. The Levy further specified that additional interest and late-payment penalties would continue to accrue until the balance was paid in full.

Pursuant to a Form 433-D Installment Agreement with the IRS, plaintiff agreed in October 1986 to have $100*fn2 per month deducted from his pension to satisfy the Levy.

On November 29, 2000, the IRS sent a Notice of Release of Levy ("Release") to PPF at 1 Centre Street, Room 200N, New York, NY 10007.

A second Notice of Release of Levy ("Second Release") was mailed to the Comptroller of the City of New York at the same address on February 12, 2001. PPF asserts that at no time has it been located at the 1 Centre Street address and therefore did not receive the notice of release.

Plaintiff alleges that he became aware of purported overpayments to the IRS from his pension fund in April 2006. He contacted PPF, which indicated in a March 23, 2007 letter that although it appeared that the Levy had been satisfied, it was never terminated because PPF never received a release from the IRS. PPF estimated that it had overpaid the IRS by approximately $19,033.11 and provided plaintiff with a schedule outlining all tax levy payments made to the IRS from plaintiff's pension fund on his behalf. Based on this document, PPF calculated that plaintiff's original lien of $6,726.54 had been repaid by February 1991. This schedule, however, does not take into account any penalties or interest attributable to plaintiff's late payments.

Armed with the payment schedule from PPF, plaintiff submitted a Form 843 claim to the IRS on April 4, 2007 requesting a refund of the alleged overpayment of $19,033.11 from his pension fund for the tax periods covering 1985 through 2006. On May 16, 2007, the IRS responded to plaintiff's claim, informing him that while it could confirm receipt of the extra payments from PPF, any overpayments had been refunded to plaintiff with interest. After further investigation, the Taxpayer Advocate Service notified plaintiff in a September 24, 2007 letter that some of the excess payments had been applied to a federal debt, such as a student loan, as a set-off and that any refund was returned to him after such debt was extinguished.

The Government has provided the court with copies of plaintiff's tax receipts from 1978 to 2008. While it appears from the Government's submissions that payment of the Levy was fulfilled in the mid-1990s, the tax transcripts indicate that any overpayments withdrawn from plaintiff's pension benefits either were: (1) credited to his federal tax deficiencies, including liabilities stemming from unpaid taxes in 1976 and 1977 as well as penalties and interest assessed for plaintiff's late tax payments;

(2) remitted to the State of New York to satisfy plaintiff's obligations for past-due child support; (3) provided to the U.S. Department of Education ("DOE") to satisfy past-due liabilities for a Stafford Loan for tuition costs incurred by plaintiff at Empire Technical School,*fn3 or (4) refunded to plaintiff with interest. The tax transcripts also show that based on his overpayments, plaintiff received a refund from the IRS for every year from 1997 to 2006. In fact, plaintiff's ...


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