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Shreiber v. Mastrogiovanni

March 1, 1999

GERALD B. SHREIBER, PLAINTIFF,
v.
ROBERT A. MASTROGIOVANNI & THE INTERNAL REVENUE SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Irenas, District Judge

HONORABLE JOSEPH E. IRENAS

OPINION

Presently before this Court is a motion for summary judgment filed by the defendants, Robert Mastrogiovanni and the Internal Revenue Service, as to the claims of the plaintiff, Gerald B. Shreiber. The plaintiff alleges that during an Internal Revenue Service audit of his income taxes, the defendants, acting under the color of federal law, violated his constitutional rights. In making this motion for summary judgment, the defendants appear willing to accept the allegations of the plaintiff, but simultaneously deny their veracity. Since the defendants dispute potentially material facts, the plaintiff argues that this motion should be characterized as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). This Court agrees and will treat the motion accordingly and accept the allegations of the plaintiff as true.

Because this court finds that (i) a Bivens remedy is unavailable in light of the existing congressional structure already providing remedies for improper tax collection and (ii) any cause of action for improper IRS conduct has not yet accrued, plaintiff's claims must be dismissed. Accordingly, defendants' motion to dismiss the complaint will be granted.

I BACKGROUND

Working as a revenue agent with the Internal Revenue Service ("IRS") in 1995 and 1996, defendant Robert A. Mastrogiovanni ("Mastrogiovanni") conducted a tax audit of the plaintiff, Gerald B. Shreiber ("Shreiber"), for the tax years 1991, 1992 and 1993. The plaintiff alleges that Mastrogiovanni conducted the audit with a motivation to discriminate against Shreiber because of his religious beliefs. Shreiber asserts that on August 11, 1995, Mastrogiovanni left a voice mail message at Shreiber's place of business stating: "[h]ey you Jew bastard piece of shit. This is White Trash. I am going to get you."

Upon completion of the audit, Mastrogiovanni was involved in preparing a memorandum, dated May 2, 1996, which proposed adjustments to Shreiber's taxable income for the years 1991, 1992 and 1993. The IRS relied on this memorandum and decided to substantially increase Shreiber's 1991, 1992 and 1993 income tax liability. As a result, the IRS District Director for the Newark, New Jersey District, J. J. Jennings, sent Shreiber and his wife a "thirty-day letter," dated May 31, 1996, proposing adjustments to Shreiber's income tax liability for the years in question. Shreiber filed a timely appeal with the Office of the Regional Director of Appeals and is currently awaiting a conference to contest the proposed adjustments. As of the day of this opinion, the IRS has yet to assess the proposed adjustments to Shreiber's tax liability.

Shreiber alleges that Mastrogiovanni conducted his audit and prepared the memorandum while influenced by an evil motive and intent to discriminate against Shreiber because of his religious beliefs. Shreiber filed a claim on May 29, 1998, alleging violations of his constitutional rights as guaranteed by the Due Process clause of the Fifth Amendment. Shreiber acknowledges that there is no federal statute from which he may seek relief for damages resulting from the pain and suffering he received from the alleged violation of his constitutional rights. However, the plaintiff argues that this court should infer a damage remedy directly from the Constitution pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

10 MOTION TO DISMISS STANDARD

Fed. R. Civ. P. 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal of claims under Fed. R. Civ. P. 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although the court must assume as true all facts alleged, "[i]t is not . . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Finally, when "[c]onfronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).

III DISCUSSION

In order to prevail in his claim, Shreiber must prove: (1) Mastrogiovanni violated Shreiber's constitutional rights when he conducted an IRS income tax audit and recommended proposed adjustments to Shreiber's tax liability; and (2) despite the absence of any statutory remedy to redress pain and suffering resulting from an unconstitutional audit, this Court should infer a Bivens remedy for Mastrogiovanni's alleged discriminatory conduct. The defendants contend that the claims against Mastrogiovanni and the IRS must be dismissed for two reasons.

First, defendants argue that the exiting remedial scheme provided by Congress to redress claims arising out of tax collection activities precludes the inference of a Bivens remedy. See Schweiker v. Chilicky. 487 U.S. 412 (1988).

Alternatively, defendants argue that even if Shreiber's allegations are true, he has failed to state a constitutional violation because the proposed adjustments do not amount to a deprivation of property since Shreiber has suffered no present harm. Since any illegality in the tax determination made by Mastrogiovanni can be rectified by the many levels of administrative and ...


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