United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Thomas Wrhel, a Madison resident appearing pro se, brings
this lawsuit against United States, seeking injunctive
relief, a tax refund, and damages concerning the alleged
miscalculation of his taxes and harassing behavior of
Internal Revenue Service officials. In particular, plaintiff
alleges that he was incorrectly assessed a tax deficiency for
2010, and the tax deficiency was intentionally sent to an old
address of plaintiff's, where IRS officials knew that
plaintiff would not receive it.
claims in this lawsuit closely track his claims in one of his
previous lawsuits in this court, Wrhel v. U.S.
Treasury-Internal Revenue Serv., No. 15-cv-39-jdp. In
that case, I dismissed plaintiff's claims for prospective
relief under the Anti-Injunction Act, and dismissed
plaintiff's claims for a refund under 26 U.S.C. §
7422 and claims for “[c]ivil damages for certain
unauthorized collection actions” under 26 U.S.C. §
7433 because plaintiff did not first exhaust his claims
within the IRS system by submitting an administrative claim.
See Dkt. 21 in the '39 case, 2016 WL 1122103
(W.D. Wis. Mar. 22, 2016).
government has filed a motion to dismiss, which, as in the
'39 case, I will consider as one for summary judgment
because both sides rely on evidence outside the scope of the
pleadings. Because plaintiff's claims in this lawsuit
fail for much the same reasons as his previous suit, I will
grant the government's motion and dismiss this case.
has filed several motions, including a motion for appointment
of counsel. Dkt. 16. Plaintiff does not provide an affidavit
explaining his financial situation, so I cannot tell whether
recruitment of counsel would be appropriate from the
financial perspective. Regardless, I will deny
plaintiff's motion because recruitment of counsel would
not make a difference in this case. As discussed below,
plaintiff's claims must be dismissed because he seeks
relief he cannot receive in this type of case and because he
has not properly exhausted his administrative remedies.
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. 7, 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. 10. I denied
identical motions from plaintiff in the '39 case and will
do the same here.
has filed a profanity-laced letter addressed to the court,
IRS, United States Attorney, and Unites States Postal
Service, responding to a letter he received from the IRS
discussing the address discrepancy that resulted in a notice
of deficiency being sent to plaintiff's former address.
Dkt. 19. While I understand plaintiff's frustration with
the IRS's failure to keep abreast of plaintiff's
proper address, it is inappropriate for any litigant to
communicate to the court using such language. I expect that
in the future, plaintiff will address the court and his
adversaries using respectful language, and any filing that
includes profanity will be summarily stricken from the
Motion for summary judgment
request for relief, plaintiff asks that the IRS
“[r]efrain from committing anymore 4th Amendment
violations going forward.” Dkt. 1, at 4. I take this to
be a request for a court order enjoining the IRS from
undertaking its tax collection activities in a harassing
manner. But the Anti-Injunction Act provides, with limited
exceptions that do not apply here, that “no suit for
the purpose of restraining the assessment or collection of
any tax shall be maintained in any court by any person,
whether or not such person is the person against whom such
tax was assessed.” 26 U.S.C. § 7421(a). This means
that taxpayers who dispute the taxes collected must do so in
a suit for a refund of those taxes, not in a suit to enjoin
collection. Enochs v. Williams Packing & Nav.
Co., 370 U.S. 1, 5-7 (1962). Plaintiff cannot receive
injunctive relief in this lawsuit.
also appears to be bringing claims for a refund of a portion
of his 2010 tax assessment and tort-style claims for various
misdeeds he believes IRS employees have committed, such as
intentionally sending a notice of deficiency to an address at
which plaintiff no longer lived, and harassing
plaintiff. The United States has waived its sovereign
immunity for both types of claims plaintiff seeks to bring.
See 26 U.S.C. § 7422 (titled “Civil
actions for refund”) and 26 U.S.C. § 7433 (titled
“Civil damages for certain unauthorized collection
both types of claims may be brought in federal court only
after the taxpayer has first filed an administrative claim
with the IRS as set out in its regulations. See 26
U.S.C. § 6532(a) (“No suit or proceeding under
section 7422(a) for the recovery of any internal revenue tax,
penalty, or other sum, shall be begun before the expiration
of 6 months from the date of filing the claim required under
such section unless the Secretary renders a decision thereon
within that time”); 26 C.F.R. § 301.7433-1(d)-(e).
The administrative claim must be filed before a
federal lawsuit is filed. Gray v. United States, 723
F.3d 795, 802 (7th Cir. 2013). The government contends that
plaintiff's claims should be dismissed because he did not
exhaust his administrative remedies.
dismissed plaintiff's '39 lawsuit because he did not
file an administrative claim before bringing his §§
7422 and 7433 claims in that case. But I noted that he had
perhaps filed an administrative claim after he
initiated the '39 lawsuit:
When it filed its motion, the government contended that
plaintiff never filed an administrative claim regarding his
2010 taxes. In his formal response, plaintiff did not dispute
this. But following completion of briefing on the motion, he
submitted a supplement that included a copy of a January 2016
order from the United States Tax Court that suggests that he
did make an administrative ...