The opinion of the court was delivered by: POLITAN
This matter comes before the Court on the motion of defendant, United States of America ("the Government"), to dismiss the Complaint of plaintiff, Jihad Beydoun ("Beydoun") Plaintiff's Complaint seeks to recover assessed and collected internal revenue taxes under 28 U.S.C. § 1346(a)(1).
The Court has jurisdiction to consider defendant's motion pursuant to 28 U.S.C. § 1331. Oral argument was heard in this matter on June 9, 1997. For the reasons set forth more fully below, the defendant's motion to dismiss is GRANTED.
This is an income tax case. Plaintiff alleges that, in 1986, the Internal Revenue Service ("IRS") levied his bank account for $ 75,741.33 without giving him notice. Plaintiff further claims that he did not discover that the funds were missing until 1989 and that, despite persistent inquiries, the IRS did not officially acknowledge the levy until 1996. Plaintiff brings the instant suit to recover the federal taxes and penalties that the levy comprised and any related interest.
DISCUSSION The Government alleges that plaintiff's bank account was levied pursuant to 26 U.S.C. §§ 6331(a) and 6331(d)(3),
which allow for levies without preliminary notice when the Secretary of the Treasury has made a jeopardy assessment. Furthermore, the Government notes that the IRS levied plaintiff's account as the result of an audit of plaintiff's income taxes for tax years 1979 through 1983, in which plaintiff participated. See Declaration of William Mateo ("Mateo Decl."), PP 9 and 12. The jeopardy assessments were made against plaintiff for unreported income and unpaid self-employment tax during those years. Id.
Plaintiff does not dispute that he has no remedy at law. Indeed, the statute of limitations for filing a refund claim has run. See 26 U.S.C. § 6511(a).
Instead, plaintiff asks the Court to toll the statute of limitations equitably
(1) because the limitations period expired as a result of the IRS's surreptitious levy and (2) because plaintiff exercised due diligence in seeking a refund once he discovered the funds were missing.
In Brockamp v. United States, the Court held "that Congress did not intend the 'equitable tolling' doctrine to apply to § 6511's time limitations." Brockamp v. United States, 136 L. Ed. 2d 818, 117 S. Ct. 849, 853 (1997). The Supreme Court unequivocally forbade equitable tolling of § 6511's limitations period in Brockamp. Putting aside for a moment the fact that plaintiff is barred from bringing the instant suit because he did not file a timely claim for refund with the IRS, see 26 U.S.C. §§ 6511(a), 7422(a), plaintiff's claim for equitable relief fails under Brockamp.
In Brockamp, the Court stated that federal courts could not extend § 6511's limitations period based on equitable considerations. Speaking for a unanimous Court, Justice Breyer stated:
Section 6511's detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together indicate to us that Congress did not intend courts to read other unmentioned, open-ended, "equitable" exceptions into the statute that it wrote. There are no counter-indications.
It is plain from the record that plaintiff did not file a claim for refund within § 6511's limitations period. Indeed, had he done so, he would not be asking the Court to toll the limitations period equitably.
More than four years passed before plaintiff discovered that his bank account had been levied. The Government does not dispute that plaintiff acted diligently after that point. Plaintiff maintains that he exercised due diligence once he discovered the funds were missing from his bank account.
Plaintiff claims that he could not bring the present action until 1996, despite repeated contacts with the IRS, because the IRS steadfastly denied the existence of the levy. There are facts in the record, however, that would have made a person with a reasonably prudent regard for his rights become aware of a potential cause of action. These are the Notices of Deficiency that the IRS sent to plaintiff in February 1986 and the check that was drawn from his bank account, made payable to the "Internal Revenue Service," and marked "RE: Levy ...