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Wrhel v. U.S. Treasury - Internal Revenue Service

United States District Court, W.D. Wisconsin

March 22, 2016




Eric Thomas Wrhel, a Madison resident appearing pro se, brings this lawsuit against the Internal Revenue Service, seeking injunctive relief, a tax refund, and damages concerning the alleged miscalculation of his taxes and harassing behavior of IRS officials. Defendant has filed a motion to dismiss the case for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For reasons explained below, I conclude that the motion is more properly considered one for summary judgment on a number of threshold issues. After considering the parties’ briefs and accompanying evidence, I will dismiss the case because the court cannot grant plaintiff the injunctive relief he seeks, and because plaintiff has failed to properly exhaust his administrative remedies on the remainder of his claims.

To address defendant’s motion, I must first consider what claims are it issue in this case. Plaintiff recounts his long-running difficulties with the IRS, but it is difficult to tell precisely what types of claims he wishes to bring. Below is a summary of his allegations.


Plaintiff Eric Thomas Wrhel is a Madison resident. Plaintiff has had ongoing disputes with the Internal Revenue Service. As plaintiff describes it, “Most of my life . . . I have been the type to stockpile a few returns . . . send in a few and have my vacation funds.” Dkt. 1-1, at 4. Plaintiff received letters from the IRS about several years of unfiled tax returns. Based on the parties’ submissions, I take it to be undisputed that plaintiff did not submit his 2001-05 and 2011-13 returns on time.

After corresponding with the IRS about some of these missing returns, he saw a person illegally parked on his side of the street in front of house, who was there for about 20 minutes and then left. In August 2014, a neighbor told plaintiff that she saw a man sitting on plaintiff’s front porch. When plaintiff retuned home, there was an envelope from the IRS with information about the collection process and a tax agent’s business card. Plaintiff had conversations with several IRS employees over the phone. Plaintiff was told he had to report his gross income. He believes that the IRS thought he was underreporting his income. Plaintiff got an extension to file his 2011-13 refunds and eventually did so. At some point he also submitted his 2001-05 returns.

Plaintiff focuses on his 2010 refund. In October 2014, plaintiff received a “tax bill” for $393.35. Plaintiff learned that the IRS amended his 2010 return (he originally received a $1, 276 refund) based on a 1099 form from the Ho-Chunk casino. When plaintiff said that he did not receive notice of this, an agent told him that notices were sent to his old Iowa address rather than his current Madison address. Plaintiff also learned that the IRS levied state of Wisconsin refunds to pay some of his 2010 tax due. Plaintiff later received “bills” for $776.79 and $779.03 that he believes were related to his 2010 taxes. Plaintiff paid all of the assessments.

In his request for relief, plaintiff asks the court “find in [his] favor”; “[i]ssue [a] restraining order (Permanently) against the IRS from ever issuing another levy against [him] or any other taxpayer who have not had concrete proof that they have been notified appropriately by the IRS”; and “[p]ave the way to go to federal claims court for compensation.” Dkt. 1, at 3.


There are problems with both parties’ submissions in this case. Plaintiff names “U.S. Treasury-Internal Revenue Service” as the defendant, but neither the IRS nor Treasury Department may be sued for actions of IRS officials; the proper defendant is the United States. Devries v. I.R.S., 359 F.Supp.2d 988, 991-92 (E.D. Ca. 2005); see also Gengler v. I.R.S., No. 10-CV-689, 2010 WL 5463314, at *1 (E.D. Wis. Dec. 29, 2010). I will substitute the United States as the defendant.

Plaintiff has also filed two frivolous motions for additional remedies regarding his desire to permanently leave the country: a motion for an order “allowing [him] to travel anywhere, anytime, and for any reason that [he] see[s] fit, ” Dkt. 17, and a motion for an order forcing the Social Security Administration to pay him the benefits he believes he is owed before he leaves the United States, Dkt. 19. I will deny both motions because the court cannot grant this relief.

For its part, the government mischaracterizes its motion to dismiss as one under Federal Rule of Civil Procedure 12(b)(1), arguing that the court does not have subject-matter jurisdiction over the case because the United States has not waived its sovereign immunity over the types of claims plaintiff is trying to bring. The Seventh Circuit has concluded that sovereign-immunity arguments like the ones brought by defendant are affirmative defenses that can be waived, and so are not jurisdictional. See Gray v. United States, 723 F.3d 795, 798 (7th Cir. 2013); Collins v. United States, 564 F.3d 833, 837-38 (7th Cir. 2009). Some of the government’s arguments rely on tax records and other evidence outside the scope of the pleadings, so their motion is more appropriately characterized as one for summary judgment on threshold issues such as exhaustion of administrative remedies. Plaintiff is not prejudiced by consideration of this evidence, as he has submitted evidence of his own as part of his formal response, and he has submitted supplemental evidence following briefing. Accordingly, both sides have had an adequate opportunity to present all the material pertinent to these threshold issues and I will treat defendant’s motion as one for summary judgment.

I will construe plaintiff’s allegations generously because he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 521 (1972). I read plaintiff’s complaint to include three categories of claims: (1) a request for injunctive relief permanently enjoining the IRS from collecting his taxes; (2) a claim for refund of at least ...

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