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Tax Protestor Cases Exhibit
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CITE: Andrew M. House, et ux. v. Commissioner; 85 AFTR2d Par. 2000-419;
No. 2:99-2428-23AJ (January 10, 2000)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

ANDREW M. HOUSE AND ANNA M. HOUSE,
Plaintiffs,
v
COMMISSIONER OF INTERNAL REVENUE,
Defendant.

January 10, 2000

REPORT AND RECOMMENDATION

This civil action against the Commissioner of the Internal Revenue Service (IRS) filed July 21, 1999, by two married tax payers proceeding pro se is before the undersigned United States Magistrate Judge for a report and recommendation on the parties' cross-motions to dismiss or for summary judgment. 28 U.S.C. section 636(b). Both parties seek dismissal of the action.

The plaintiffs, Andrew M. House and Anna M. House, originally sought a declaration from this court that certain IRS assessments against them are void, that they are due monies from the IRS for taxes withheld wrongfully, an injunction preventing the defendant from engaging in further collection activity against the plaintiffs and the award of one million dollars ($1,000,000.00) in damages. On September 27, 1999, the defendant filed his motion with exhibit asserting among other things that this court lacks jurisdiction over the matter. The plaintiffs were provided a copy of the motion and given an explanation of dismissal and summary judgment procedures similar to that required by Roseboro v. Garrison, 528 F.2d 309(4th Cir. 1975) on September 30, 1999. On October 1, 1999, the plaintiffs filed an objection to the motion to dismiss and their own motion to dismiss with their own affidavit as well as copies of various income tax returns and correspondence between the parties. Hence, it appears consideration of the motions is appropriate.

A review of the pleadings before the court reveals the defendant's motion should be granted for lack of jurisdiction and that the plaintiffs agree that this court lacks jurisdiction.

This action arises out of the defendant's treatment of the plaintiffs' 1998 individual income tax return, a copy of which is attached to the plaintiffs' pleadings.

It appears that on their 1998 Form 1040A tax return, the plaintiffs only reported income in the amount of $4,954. As a result, the plaintiffs claimed on the return that they owed no federal income tax liability and that they were entitled to a refund of $2,075, representing the taxes withheld from Andrew M. House's wages from Mt. Pleasant Radio Co. The plaintiffs did not include on their 1040A the $29,455.93 in wages earned by Andrew M. House from Mt. Pleasant Radio Co. and from which the $2,075 had been withheld. However, on an attachment to their income tax return, the plaintiffs asserted that the wages earned by the plaintiff from Mt. Pleasant Radio Co. were not "taxable" wages.

Nevertheless, based upon the Form W-2 attached to the plaintiffs' return showing that Andrew M. House earned $29,455.93, the Internal Revenue Service treated the plaintiffs' failure to include the $29,455.93 in income on the plaintiffs' return as a clerical error, corrected the return, and made the assessment of tax pursuant to Section 6213(b) of the Internal Revenue Code. The IRS informed the plaintiffs of this change to their return and assessment of tax in the amount of $3,356 by letter dated May 3, 1999. By letter dated May 5, 1999, the plaintiffs challenged the assessment alleging that they are "NONIMAGRANT/NONRESIDENT ALIEN NONTAXPAYERS" [sic] and therefore not "persons" subject to federal income tax under the Internal Revenue Code.

In response on July 22, 1999, the defendant responded that the plaintiffs' argument had consistently been rejected by the courts, and that further correspondence on this subject would not receive a response. On July 23, 1999, apparently before receiving the July 22 letter of the IRS, the plaintiffs commenced this action seeking to recover the withheld income, an injunction against the defendant, and other damages noted above.

As the defendant points out and as the plaintiffs apparently acknowledge in their motion to dismiss, this action was brought in the wrong court. The assessment complained of was denominated a clerical or mathematical error and as a result no jurisdiction to review it lies in this court. Section 6213(b)(1) of the Internal Revenue Code provides:

If the taxpayer is notified that, on account of a mathematical or clerical error appearing on the return, an amount of tax in excess of that shown on the return is due, and that an assessment of the tax has been or will be made on the basis of what would have been the correct amount of tax but for the mathematical or clerical error, such notice shall not be considered as a notice of deficiency.., and the taxpayer shall have no right to file a petition with Tax Court based on such notice, nor shall such assessment or collection be prohibited by the provisions of subsection (a) of this section. Each notice under this paragraph shall set forth the error alleged and an explanation thereof.

26 U.S.C. section 6213(b)(1).

A mathematical or clerical error includes "an entry on a return of an item which is inconsistent with another entry of the same or another item of such return." 26 U.S.C. section 6213(g)(2)(C).

Here the IRS treated the plaintiffs' omission of $29,455.93 in wages earned by Mr. House on their Form 1040A as a mathematical or clerical error because this omission was inconsistent with the Form W-2 prepared by Mt. Pleasant Radio Co. that the plaintiffs had attached to their return. As a result, the IRS changed the plaintiffs' return and assessed the plaintiffs $3,356 in income tax, as provided for by Section 6213(b)(1). As required by Section 6312(b)(1), this "change was detailed in writing" to the plaintiffs through the IRS's May 3, 1999, letter.

In their complaint, the plaintiffs ask for judicial review under Section 7429(b) of the Internal Revenue Code with respect to what they believed was a "jeopardy assessment" /1/ made against them.

Inasmuch as the assessment made against the plaintiffs was made pursuant to Section 6213(b)(1), and was not a jeopardy assessment under Section 6861 of the Internal Revenue Code, this court lacks jurisdiction /2/ to consider the plaintiffs' claim. Their complaint should be dismissed.

Additionally, the Anti-Injunction Act, 26 U.S.C. section 7421, bars plaintiffs' request for injunctive relief against efforts by the defendant to collect taxes from them. United States v. Regan, 465 U.S. 367, 376 (1984).

Accordingly, for the aforementioned reasons and upon the concurrence of the parties, it is recommended that the complaint herein be dismissed for want of subject matter jurisdiction.

Respectfully submitted,

Robert S. Carr
United States Magistrate Judge

Charleston, South Carolina
January 10, 2000

FOOTNOTES

/1/ "If the Secretary believes that the assessment or collection of a deficiency . . . will be jeopardized by delay, he shall, notwithstanding the provisions of Section 6213(a), immediately assess such deficiency . . . and notice and demand shall be made by the Secretary for payment thereof." 26 U.S.C. section 6861. If a jeopardy assessment is made the taxpayer may be entitled to administrative review of the assessment pursuant to procedures provided for in section 7429(b) and for judicial review under section 7429(b).

/2/ Likewise no substantial federal question is presented here because the plaintiffs' claim that the are not "persons" within the meaning of the IRS statutes as they are instead "citizens of the Sovereign State of South Carolina" and cannot be taxed by the United States is frivolous and has been universally rejected by the courts. See, e.g., United States V. Hanson, 2 F.3d 942, 945 (9th Cir. 1993; United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993); United States v. Dawes, 874 F.2d 746, 750-751 (10th Cir. 1989); In re Weatherlev, 169 B.R. E.D. Pa. 1994.

END OF FOOTNOTES

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