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Tax Protestor Cases Exhibit
("Damn, We Lost Again! And why is it that people who sell
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CITE: Todd A. Treglowne v. United States; 84 AFTR2d Par. 99-5618;
No. 99-CV-70323-DT (November 17, 1999)



November 17, 1999




The Court should dismiss plaintiff's action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). In the alternative, the Court should dismiss plaintiff's claims on the merits for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6).



Plaintiff Todd A. Treglowne, proceeding pro se, commenced this action on January 27, 1999, seeking to recover from defendant, the United States of America, what he characterizes as an overpayment of income taxes for the 1996 year. Plaintiff alleges that he overpaid his 1996 federal income tax by $9,663.21. He basis jurisdiction in this Court on 26 U.S.C. sections 6402(a), 7422(a), and 28 U.S.C. section 1346(a)(1). He also asserts a claim of unjust enrichment, invoking the "equity jurisdiction" of this Court.

On September 24, 1999, the United States filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (6). The United States argues that the suit should be dismissed because (a) the United States has not waived its sovereign immunity with respect to plaintiff's claim, or (b), in the alternative, plaintiff's complaint fails to state a claim upon which relief may be granted. Plaintiff submitted a letter to the Court on October 18, 1999, essentially responding to the government's motion. For the reasons that follow, the Court should dismiss the case for lack of jurisdiction because the government has not waived its sovereign immunity. In the alternative, the Court should dismiss the case because plaintiff has failed to state a claim upon which relief may be granted.



In a previous case raising essentially the same claims as those raised by plaintiff here, the Court adopted the Report and Recommendation of Magistrate Judge Pepe, which recommended that the Court dismiss the plaintiff's complaint for failure to state a claim. Magistrate Judge Pepe suggested this approach because the sovereign immunity issue was far from clear whereas the merits determination was clear, and the case could therefore be more easily resolved by dismissing it on the merits. See Mem. in Supp. of Gov't's Mot. to Dismiss, Ex. E, Norris v. United States, No. 97-CV-75983, at 7-10 (E.D. Mich. Oct. 22, 1998) (Report & Recommendation of Pepe, M.J.) (adopted by Judge Borman on Feb. 16, 1999) (published on-line at 82 A.F.T.R.2d 98-7108, 1998 WL 839584).

With due respect for Magistrate Judge Pepe's recommendation and the Court's acceptance of it, I suggest that the Court must first consider the sovereign immunity issue. It is well established that "[s]overeign immunity is jurisdictional in nature." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). As the Supreme Court explained, "the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (alteration in original). Because sovereign immunity is jurisdictional, it must be addressed before addressing the merits, no matter how difficult the immunity issue may be in relation to the merits.

In Steel Co. v. Citizens for a Better Envit, 523 U.S. 83 (1998), the Supreme Court rejected the doctrine of "hypothetical jurisdiction," under which several courts of appeals would, where the jurisdictional question was difficult, "proceed immediately to the merits question, despite jurisdictional objections, at least where (1) the merits question is more readily resolved, and (2) the prevailing parties on the merits would be the same as the prevailing party were jurisdiction denied." Id. at 93. The Court explicitly rejected this approach "because it carries the court beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers. . . . 'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Id. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).

As noted above, this Court's jurisdiction is defined by the United States's consent to be sued -- i.e., its waiver of sovereign immunity. Under Steel Co., therefore, the Court must consider the jurisdictional immunity issue before considering the merits, notwithstanding that the merits of plaintiff's claims might be more readily resolved. The Sixth Circuit has explicitly reached this conclusion in a tax refund case. See Thomas v. United States, 166 F.3d 825, 831 (6th Cir. 1999) ("Before addressing the merits of Thomas' refund claims, we must first determine whether we have jurisdiction.") (citing Steel Co.); see also, Ramcor Servs. Group, Inc. v. United States, 41 Fed. Cl. 264, 266 (1998) (under Steel Co., extent of government's waiver of sovereign immunity must be addressed before the merits of the dispute). But see In re Sealed Case No. 99- 3091, ___ F.3d ___, 1999 WL 709977, at *4 (D.C. Cir. Sept. 7, 1999) (reasoning that sovereign immunity is only quasi-jurisdictional" because, unlike subject matter jurisdiction, it can be waived by the parties, and therefore the court is "not required to decide that issue before the merits.").


Similarly, Rule 12(b)(1) provides that the Court may dismiss a complaint for lack of jurisdiction. The burden of establishing subject matter jurisdiction of the federal court lies with the party seeking to invoke the court's jurisdiction, in this case the plaintiff. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993); Reynolds v. Army & Air Force Exchange Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Generally, there are two types of attacks a party may make on subject matter jurisdiction in a Rule 12(b)(1) motion: A facial attack, which challenges the sufficiency of the opposing party's jurisdictional allegations and in which all well-pleaded factual allegations in the complaint are taken as true; or a factual attack, which challenges the actual fact of subject matter jurisdiction and which is analyzed under the standard for determining a Rule 56 motion for summary judgment. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir. 1990); Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558-59 (9th Cir. 1987); Gotha v. United States, 929 F. Supp. 207, 209-10 (D.V.I. 1996); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Blue Cross Blue Shield of Ga., Inc., 755 F. Supp. 1040, 1046-47 (S.D. Ga. 1990). See generally, 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure section 1350, at 211- 25 (2d ed. 1990); id., section 1350, at 80 (Supp. 1996). Here, defendant asserts a factual challenge to the Court's jurisdiction, and I accordingly consider the exhibits attached to the parties' pleadings to determine whether this Court has jurisdiction.


Section 7422 of the Internal Revenue Code provides the predicate for the United States's waiver of sovereign immunity with respect to tax refund suits, and thus the requirements of this section must be satisfied before this Court has jurisdiction over such a suit. In relevant part, section 7422 provides:

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrong fully collected, until such a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

26 U.S.C. section 7422(a).

Here, plaintiff filed a Form 1040EZ in which he indicated that he had $0.00 in income, and requested a refund of the $9,663.21 which had been withheld from his wages. See Gov't's Br., Ex. A. Plaintiff also submitted his W-2 Wage and Tax Statement from his employer -- OPVS Technologies, Inc. -- which indicated that plaintiff earned $47,231.87 in wages, tips, and other compensation. See id., Ex. B. Plaintiff also submitted a letter indicating that he did not believe he was obligated to file a federal income tax return, but that he was doing so for fear of criminal prosecution if he failed to so file. See id., Ex. C. The question here is whether plaintiff, by submitting these materials, filed a claim for refund in accordance with the Internal Revenue Code and the applicable regulations promulgated by the Department of Treasury.

The applicable Treasury regulations provide that, in the case of an income tax overpayment, "a claim for credit or refund of such overpayment shall be made on the appropriate income tax return," and that "a properly executed individual or corporation original income tax return or an amended return . . . shall constitute a claim for refund or credit[.]" Treas. Reg. section 301.6402-3(a)(1), (5), 26 C.F.R. section 301.6402-3(a)(1), (5) (1999). With respect to the information necessary to make a claim for refund of overpaid taxes, the regulations provide:

The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise [sic] the Commissioner of the exact basis thereof. The statement of the grounds and facts must be verified by a written declaration that is made under the penalties of perjury. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund or credit.

Treas. Reg. section 301.6402-2(b)(1), 26 C.F.R. section 301.6402-2(b)(1) (1999).

The Court should conclude that plaintiff did not file a proper income tax return, and thus did not file an appropriate claim for refund. In United States v. Mosel, 738 F.2d 157 (6th Cir. 1984) (per curiam), the Sixth Circuit considered this issue in the context of a criminal tax prosecution for failure to file an income tax return. In Mosel, the defendant had filed a Form 1040 indicating that he had zero income and that he was entitled to a refund of all taxes which had been withheld from his wages. See id. at 158. The defendant claimed that he could not be prosecuted for failing to file a tax return because he did, in fact, file a return. See id. The Sixth Circuit disagreed, holding that "the Form 1040 submitted was properly construed as no return because of its failure to include any information upon which tax could be calculated." Id. Adopting the language of a Seventh Circuit case, the court reasoned:

" . . . [I]t is not enough for a form to contain some income information; there must also be an honest and reasonable intent to supply the information required by the tax code . . . . In our self-reporting tax system the government should not be forced to accept as a return a document which plainly is not intended to give the required information."

Id. (quoting United States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980)) (alterations in original). The court thus concluded that "no reasonable person employing [the symbol zero] in these circumstances could understand that he had submitted the information which is required in a tax return. Mosel's 1980 Form 1040 might reasonably be considered a protest, but under no circumstances can it be rationally construed as a return." Id. at 158-59.

Under Mosel, therefore, plaintiff's Form 1040EZ did not constitute a "return" as that term is used in the Internal Revenue Code and accompanying regulations. /1/ Thus, plaintiff's claim is not a proper refund claim under Treasury Regulation section 301.6402- 3(a), and this Court does not have jurisdiction under 26 U.S.C. section 7422(a). As another court has recently explained:

Plaintiff's 1040 form simply lists zero as the amount of income, adjusted income, taxable income, and federal taxes due on that income despite the obvious contradiction between these statements and his W-2 forms. . . . Far from constituting a properly executed tax return that identifies the essential requirements of each and every refund demand, Plaintiff's purported demand is nothing short of frivolous and fraudulent. . . .

. . . .

[T]he Court concludes that Plaintiff failed to file a properly executed tax return and administrative refund claim with the Internal Revenue Services, depriving this Court of jurisdiction to entertain this refund action pursuant to 26 U.S.C.A. section 7422(a).

Thompson v. United States, 83 A.F.T.R.2d 99-2138, 1999 WL 302453, at
*2-*3 (N.D. Ga. Mar. 22, 1999); accord Knox v. United States, 58 A.F.T.R.2d 86-5404, 1985 WL 1822, at *1-*2 (E.D. Tenn. Apr. 18, 1985).

As in Thompson, here plaintiff's Form 1040EZ does not constitute an income tax return under Mosel, and thus plaintiff has not filed a proper claim for refund as required by section 7422(a). Accordingly, the Court should dismiss plaintiff's action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(6).


If the Court disagrees with the above analysis, the Court should dismiss plaintiff's claims on the merits.


A motion to dismiss for failure to state a claim upon which relief can be granted is provided for in Fed. R. Civ. P. 12(b)(6). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that plaintiff can prove no set of facts supporting his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Plaintiff is not required to specifically set out the facts upon which he bases his claim. Id. at 47. Rather, "a short and plain statement of the claim" pursuant to Fed. R. Civ. P. 8(a)(2) gives defendant fair notice of plaintiffs claim and the grounds upon which it rests. Id.

The reviewing court must construe the complaint in the light most favorable to plaintiff and must presume all factual allegations in the complaint as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The purpose of Rule 12(b)(6) is to give defendant the opportunity to test whether plaintiff is entitled to legal relief as a matter of law even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley, 355 U.S. at 48. A dismissal under Rule 12(b)(6) is generally disfavored by courts, as it is a dismissal on the merits. 2A James W. Moore, Moore's Federal Practice paragraph 12.07 (2d ed. 1995).

A court can only decide a Rule 12(b)(6) motion on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir. 1990). The Court can treat the motion as one for summary judgment if "matters outside the pleading are presented to and not excluded by the court." Fed. R. Civ. P. 12(b).



Before addressing the merits of plaintiff's arguments regarding his liability for federal income tax, it is appropriate to first consider plaintiff's argument that requiring him to provide the information demanded by the Internal Revenue Service would violate his Fifth Amendment privilege against self-incrimination. Plaintiff argues:

Section 6103(H) and (I) provide that all return information can be used against me to determine and impose both criminal and civil fines and penalties. I do not see how any tax laws can compel me to provide information to the government that can be used against me in this manner, Fifth Amendment protection applies to any proceeding; civil or criminal administrative or judicial, and may be invoked in connection with federal in connection with federal income taxes. See U.S. v. Argomaniz, 925 F.2d 1349 (11th Cir. 1991); Cincinnati v. Bawteheimer, 63 Ohio St. 3d [260, 586 N.E.2d 1065 (Ohio 1992)].

Pl.'s Letter in Resp. to Gov't's Mot. to Dismiss, at 1. Plaintiff's Fifth Amendment argument is without merit.

While "[a] taxpayer may invoke the protection of the Fifth Amendment and refuse to provide information on his tax return which would tend to incriminate him," Aune v. United States, 582 F. Supp. 1132, 1134 (D. Ariz. 1984) (citing Garner v. United States, 424 U.S. 648 (1976)), a taxpayer may not invoke the privilege by refusing to provide any information based on vague assertions that he would be incriminated by providing the information. Rather, "to validly claim the constitutional privilege, a person must be faced with substantial hazards of self-incrimination that are real and appreciable and not merely imaginary and unsubstantial." Id. Further, because the amount of income itself contains no incriminating information, the Fifth Amendment may "protect[] a taxpayer from disclosing the source of his income, [but] it does not protect him from disclosing the amount of his income." Id. As the Supreme Court explained in the early days of the federal income tax:

If the form of return provided called for answers that [the taxpayer] was privileged from making, he could have raised the objection in the return, but could not on that account refuse to make any return at all. . . . He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.

United States v. Sullivan, 274 U.S. 259, 264 (1927).

Under these standards, plaintiff's claim of privilege fails for several reasons. First, as discussed above plaintiff's "return" did not amount to a return at all, and thus constitutes the type of blanket assertion of privilege which the Court rejected in Sullivan. See United States v. Pilcher, 672 F.2d 875, 877 (11th Cir. 1982) ("A taxpayer cannot assert a Fifth Amendment privilege against compulsory self-incrimination to justify the failure to file any return at ail."); Schoffner v. United States, 627 F. Supp. 167, 168-69 (S.D. Ohio 1985) (same); Vaughn v. United States, 589 F. Supp. 1528, 1531 (W.D. La. 1984) (same). Second, plaintiff has not asserted any real, concrete fear of prosecution, and thus his invocation of the privilege is improper. See Vaughn, 589 F. Supp. at 1531 ("Vaughn did not further substantiate his fear of incrimination in the materials accompanying his opposing brief but excerpts from the packet of materials attached to his return reveal that Vaughn has raised only a remote and speculative possibility of incrimination"). Finally, plaintiff claimed the privilege with respect to the amount of his income (rather than its source or other information), which by itself can have no incriminating nature and thus is not protected by the privilege. See Pilcher, 672 F.2d at 877 ("Although the source of income might be privileged, the amount must be reported."). Accordingly, the Court should reject petitioner's argument that his "return" was valid because he was not required, under the Fifth Amendment, to provide the information required by the Form 1040EZ. /2/


Plaintiff claims that he is entitled to the refund he seeks because he has no taxable income. Essentially, plaintiff raises two arguments: (1) he is entitled to refund of the money withheld from his wages because he paid it voluntarily, and he is not required to file an income tax return; and (2) he has no "income" as that term is used in the Internal Revenue Code.

Contrary to plaintiff's argument, compliance with the revenue laws is not voluntary. It is true that "[o]ur nation's tax collection system is based on voluntary compliance," United States v. McKee, ___ F.3d ___, ___, 1999 WL 754538, at *8 (6th Cir. Sept. 27, 1999); see also, United States v. Generes, 405 U.S. 93, 104 (1972) (noting that the tax system is "largely dependent on voluntary compliance[.]"). This means only that, for administrative and other reasons, the government relies primarily on taxpayers to voluntarily report their income and pay their appropriate taxes. It does not mean that compliance with the revenue laws is itself voluntary. On the contrary.

[i]t is without question that the payment of income taxes is not voluntary. The assertion that the filing of an income tax return is voluntary is, likewise, frivolous. Title 26, United States Code, Section 6012(a)(1)(A), requires that every individual who earns a threshold level of income must file a tax return. Failure to file an income tax return subjects an individual to criminal penalty.

United States v. Hartman, 915 F. Supp. 1227, 1230 (M.D. Fla. 1996) (citations and internal quotation omitted); see also, United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) ("Appellants claim that payment of federal income tax is voluntary clearly lacks substance."); Romero v. Commissioner, No. F-98-6284, 1998 WL 920385, at *2 (E.D. Cal. Nov. 3, 1998) ("Mandatory enforcement of the tax laws . . . does not conflict with the aim of achieving voluntary compliance."). Accordingly, plaintiff's argument that compliance with the tax laws is voluntary is without merit.

Likewise, it is clear that the wages plaintiff earned which are reported on his W-2 are "income" under the Internal Revenue Code. Although, as plaintiff correctly notes, the Code does not provide a complete and exhaustive definition of "income" subject to taxation, the Code does define "gross income" as "all income from whatever source derived, including (but not limited to) . . . compensation for services, including fees, commissions, fringe benefits, and similar items." 26 U.S.C. section 61(a)(1). Thus, whatever room for disagreement there may be with respect to the term "income" at the margins, or with respect to forms of "income" that are not explicitly listed in the Code, it is clear that wages which constitute "compensation for services" are income subject to taxation under the Code. See Gerads, 999 F.2d at 1256 ("[W]ages are within the definition of income under the Internal Revenue Code and the Sixteenth Amendment, and are subject to taxation."); United States v. Koliboski, 732 F.2d 1328, 1329 n.1 (7th Cir. 1984) ("Nonetheless, the defendant still insists that no case holds that wages are income. Let us now put that to rest: WAGES ARE INCOME."); Hill v. United States, 599 F. Supp. 118, 122 (M.D. Tenn. 1984) (holding that "wages and salaries are taxable-income" and that "any contention to the contrary is patently frivolous."); United States v. Venator, 568 F. Supp. 832, 835 (N.D.N.Y. 1983).

Likewise, plaintiff's argument that he, as an individual, is not liable for any income tax is without merit. By its terms, section 1 of the Code clearly imposes an income tax on individuals. See 26 U.S.C. section 1. See generally, Cheek v. United States, 498 U.S. 192, 195, 205 (1991) (describing as "surely frivolous" arguments that individuals "were not taxpayers within the meaning of the tax laws, that wages are not income, that the Sixteenth Amendment does not authorize the imposition of an income tax on individuals, and that the Sixteenth Amendment is unenforceable."). /3/ Accordingly, if the Court rejects the jurisdictional analysis in part B, supra, the Court should dismiss plaintiff's claims on the merits.


The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

Paul J. Komives
United States Magistrate Judge

Dated: November 17, 1999.


/1/ In his letter responding to the United States's motion, plaintiff, discussing another issue, asserts that a Form 1040 with zeros inserted in the spaces provided constitutes a "return." In support of this position, plaintiff cites two Ninth Circuit cases, United States v. Long, 618 F.2d 74 (9th Cir. 1980) and United States v. Kimball, 896 F.2d 1218 (9th Cir. 1990), as well as a decision of the United States Bankruptcy Court for the District of Nevada, which is of course bound by Ninth Circuit precedent. The Sixth Circuit, the decisions of which bind this Court, however, has explicitly rejected the conclusion reached in Long. See Mosel, 738 F.2d at 158 ("[W]e reject the position of the Ninth Circuit [in Long] . . ."). Plaintiff also cites the Seventh Circuit's decision in Moore, but as discussed above that case reached the same decision which the Sixth Circuit reached in Mosel.

/2/ The two cases relied upon by plaintiff, Argomaniz and Bawtenheimer, are distinguishable. Argomaniz involved an IRS summons, rather than a tax return, and the court concluded that, unlike here, the taxpayer did have a real and legitimate fear of prosecution if he complied with the summons. See Argomaniz, 925 F.2d at 1354-55. A similar real and substantial fear of criminal prosecution, which as noted above is lacking here, was found in Bawtenheimer, which also involved a subpoena rather than a tax return. See Bawtenheimer, 586 N.E.2d at 1069-70.

/3/ For the same reasons, plaintiff's claim based upon the equitable doctrine of unjust enrichment, to the extent such a claim is cognizable against the United States to recover withheld income tax, fails.


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