United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, United States District Judge.
Anthony Hall, proceeding pro se, commenced the
above-captioned action on April 27, 2016 against Defendants
the United States of America, the Internal Revenue Service
("IRS"), the United States Department of the
Treasury, Mary Ann Acone and Natalie Cassadine,
alleging an "unconstitutional theft of
[Plaintiffs] proprietary interest in [his] private
property" and the "capricious, wrongful and
unreasonable imposition of [a] jeopardy levy." (Compl.
1, Docket Entry No. 1 (capitalizations omitted).) Defendants
move to dismiss the Complaint for lack of subject matter
jurisdiction and for failure to state a claim pursuant to
Rules 12(b)(1) and 12(b)(6), respectively, of the Federal
Rules of Civil Procedure. (Defs. Mot. to Dismiss with
Incorporated Mem. of Law ("Defs. Mem."), Docket
Entry No. 11; Decl. of Natalie Cassadine ("Cassadine
Decl."), Docket Entry No. 11-1.) Based on Plaintiffs
request that the Court "quash the unlawful institution
of [the] jeopardy levy and release ... all holds, liens and
restraints currently placed on [Plaintiffs] bank accounts,
" (Compl. ¶ 12 (capitalizations omitted)), the
Court construes Plaintiffs claims to seek review of a
jeopardy levy under 26 U.S.C. § 7429 ("section
7429") or to assert a wrongful levy action under 26
U.S.C. § 7426 ("section 7426").
reasons set forth below, the Court grants Defendants'
motion to dismiss the Complaint.
Court assumes the truth of the factual allegations in the
Complaint for purposes of this Memorandum and Order. On April
13, 2016, Plaintiff received a notice from the IRS informing
him that he had a "balance due" of $1, 022, 289.60
from an allegedly fraudulent federal tax return that
Plaintiff had filed for the 2014 tax year. (Compl. ¶ 5.)
The balance represented Plaintiffs 2014 tax refund of $851,
908 and accrued interest. (Cassadine Decl. ¶ 4; see
Notice of Tax Due on Federal Tax Return at 12, annexed to
Compl. as Ex. B.) By letter dated April 14, 2016, the IRS
informed Plaintiff that it had approved a jeopardy
to collect the amount Plaintiff owed. (Compl. ¶ 6;
Notice of Jeopardy Levy and Right of Appeal ("Notice of
Jeopardy Levy"), annexed to Compl. as Ex. A.) The Notice
of Jeopardy Levy also informed Plaintiff that he was entitled
to request an administrative review of the action and was
required to do so before he requested judicial review in a
United States District Court. (Notice of Jeopardy Levy at 1.)
On April 24, 2016, Plaintiff received a notice from J.P.
Morgan Chase Bank, N.A., placing holds in the amounts of
$181, 095.84 and $204, 915.50 on the balance in Plaintiffs
personal account and an account named the "Hall
Sovereign Irrevocable Private Trust." (Compl. ¶ 7;
Notice of Hold, annexed to Compl. as Ex. C.) Plaintiff
commenced this action on April 27, 2016. (See
Standard of review
district court may dismiss an action for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) when the court
"lacks the statutory or constitutional power to
adjudicate it." Cortlandt St. Recovery Corp. v.
Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d
Cir. 2015) (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718
F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
2005)); see also Chau v. S.E.C., 665 F.App'x 67,
70 (2d Cir. 2016). The plaintiff has the burden to prove that
subject matter jurisdiction exists, and in evaluating whether
the plaintiff has met that burden, '"[t]he court
must take all facts alleged in the complaint as true and draw
all reasonable inferences in favor of plaintiff, ' but
'jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences
favorable to the party asserting it.'" Morrison
v. Nat'lAustl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (citations omitted), affd, 561 U.S. 247
(2010). A court may consider matters outside of the pleadings
when determining whether subject matter jurisdiction exists.
M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir.
2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir.
complaint must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Matson v. Bd. of Educ, 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is "inapplicable to
legal conclusions." Iqbal, 556 U.S. at 678. In
reviewing a pro se complaint, the court must be
mindful that a plaintiffs pleadings should be held "to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quotingEstelle v. Gamble, 429
U.S. 97, 104-105 (1976)); see Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court "remain[s] obligated to
construe apro se complaint liberally").
The Court lacks subject matter jurisdiction over Plaintiffs
section 7429 claim
argue that the Court lacks subject matter jurisdiction over
Plaintiffs challenge to the jeopardy levy under section 7429
because Plaintiff failed to exhaust his administrative
remedies. (Defs. Mem. 10.) Plaintiff does not respond to this
taxpayer seeking to challenge a jeopardy levy under section
7429(b) must follow the administrative procedures set forth
in section 7429(a) before bringing an action in federal
court. Zuckman v. Dep 't of Treasury, 448
F.App'x 160, 161 (2d Cir. 2012) ("To the extent that
Zuckman challenges the levy on his wages, there is no
indication that he exhausted his administrative remedies.
Thus, the district court properly dismissed those claims for
lack of subject matter jurisdiction."). Under section
7429(a), a taxpayer may seek administrative review of a
jeopardy levy by filing a written request with the Area
Director within thirty days of the date on which
the IRS provided the taxpayer with the written statement of
the information on which it ...