United States District Court, E.D. Wisconsin
ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS
OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT (DKT. NO.
PAMELA PEPPER United States District Judge.
case was removed from state court to federal court in October
2016. Dkt. No. 1. The same day, the defendant moved to
dismiss the case. Dkt. No. 2. A month or so later, the court
ordered the plaintiff to respond to that motion. Dkt. No. 7.
The plaintiff filed an opposition brief on December 14, 2016.
Dkt. No. 8. The case then sat idle for twenty months, solely
through the fault of this court. Then, on August 8, 2018, the
court issued an order liberally construing the
plaintiff's claims and denying the motion to dismiss.
Dkt. No. 10. The court ordered the defendant to answer or
otherwise respond to the complaint, id.; on October
11, 2018, the defendant filed a motion to dismiss or, in the
alternative, a motion for summary judgment, dkt. no. 15. The
plaintiff responded. Dkt. No. 16. Because the plaintiff has
not stated a claim for which a federal court may grant
relief, the court will dismiss the case.
August 8, 2018 Order
court's August 8, 2018 order first recounted the claims
in the complaint:
The complaint alleged that under 26 U.S.C. §6702, which
the plaintiff described as “tax code submitting
inaccurate information to the IRS, ” the SSA submitted
an inaccurate 1099 form to the IRS for tax year 2009.
Id. at 3. The plaintiff alleged that in tax year
2009, the SSA reported to the IRS that the plaintiff received
$51, 280 in disability payments, when she had received only
$22, 900 that year. Id. She asserted that she had
been asking the defendant to give her a corrected 1099, so
that she could file an amended 2009 tax return. Id.
The plaintiff alleges that since 2009, the IRS has
“been adding fines, penalties and late fees, ”
doubling the amount of money that the defendant claims to
have paid the plaintiff. Id. at 4. She says that,
while the defendant's own statement says that she repaid
$22, 990, it also says that “a check was returned to
[SSA] that [the plaintiff] never received and a 2nd checked
[sic] was sent to [the plaintiff] that I did receive in the
amount of $22, 900.” Id. The plaintiff alleged
that because of the SSA's error, the IRS had been trying
to collect $28, 000 from her. She seeks damages for emotional
distress under Wis.Stat. §895.443, contributory neglect
under §895.045, punitive damages under §893.043 as
well as damages from the Wisconsin Department of Revenue.
Id. at 4.
Dkt. No. 10 at 2.
court observed that the plaintiff had alleged that 26 U.S.C.
§6702, titled “Frivolous Tax submissions, ”
gave her the ability to file a case in federal court.
Id. at 5. The court's order informed the
plaintiff that that section did not provide a private right
of action for a citizen to sue the person who allegedly filed
the frivolous return. Id. Because the plaintiff
didn't have a lawyer helping her with the complaint,
however, the court liberally construed her claims,
speculating that her allegations might fit under 26 U.S.C.
§7434, “civil damages for fraudulent filing of
information returns.” Id. The court denied the
defendant's motion to dismiss (which was based on a
theory of “no derivative jurisdiction”),
apologized for the delay and ordered the defendant to respond
to the complaint. Id. at 7-9.
Defendant's Motion to Dismiss (Dkt. No. 15)
the court granted an extension of time, dkt. no. 14, the
defendant responded to the plaintiff's complaint by
filing a motion to dismiss, dkt. no. 15. He asked the court
to dismiss the case under Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6); alternatively, he asked the court to
grant summary judgment under Fed.R.Civ.P. 56. Id.
Rule 12(b)(1), the defendant asserts that the plaintiff
cannot sue under 26 U.S.C. §7434. Id. He argues
that the plaintiff alleged that the Social Security
Administration had misstated the amount of disability
benefits on her “1099” form. Dkt. No. 15 at 12
(citing Dkt. No. 1-1 at 3). He says that the
“1099” form to which the plaintiff refers is Form
SSA-1099, which the SSA mails to beneficiaries so that
beneficiaries can report the amount of benefits they received
to the IRS. Id. at 12-13. The Commissioner asserts
that whether the 1099 form was misleading is irrelevant
because 26 U.S.C. §7434(f) limits the types of false
“information returns” for which a taxpayer may
recover to the nine listed in 26 U.S.C. §6724(d)(1)(A).
Id. at 13 (citing Cavoto v. Hayes, 634 F.3d
921, 924 (7th Cir. 2011)). Form SSA-1099 is not on this list
of nine. Accordingly, the Commissioner argues that the
plaintiff has no basis for bringing a claim under 26 U.S.C.
§7434 because her 1099 form is not an “information
return” for which the statute allows her to recover.
under Rule 12(b)(1), the Commissioner contends that the
plaintiff has not exhausted her claim under the Federal Tort
Claims Act (“FTCA”). Id. The
commissioner observes that the FTCA provides the exclusive
waiver of sovereign immunity for tort actions seeking
monetary damages against the United States, its agencies and
its employees. Id. at 13-14. He asserts that the
FTCA required the plaintiff to file her claim with the
appropriate federal agency before filing a suit in federal
court. Id. at 14 (citing 28 U.S.C. §2675(a);
McNeil v. United States, 508 U.S. 106, 113 (1993)).
The Commissioner points out that the plaintiff has not
alleged that she followed the steps in 20 C.F.R.
§429.101-110, which shows that she has not exhausted her
remedies and requires the court to dismiss the case.
Commissioner's argument under Rule 12(b)(6) is brief; he
asserts only that the plaintiff has not proven that the court
has jurisdiction over the claim. Id. at 15.
the Commissioner asks the court to grant summary judgment
because “the evidence plainly demonstrates that
Defendant did not send an inaccurate Form SSA-1099 to
Plaintiff regarding her benefits in 2009.” Id.
at 16. He reviews the Form SSA-1099 form sent to the
plaintiff and explains that the numbers on the form were not
misleading but were an accurate accounting of the benefits
that had been dispensed. Id. He says the form
accurately advised the plaintiff what she should report as
income to the IRS. Id.
plaintiff responded on October 25, 2018. Dkt. No. 16. She
asserted that she wanted this court to proceed under
“State Statute USC$6702 tax Code submitted inaccurate
information to the IRS.” Id. at 1. She
explained that this is the same statute that the court
applied in Waukesha County Case No. 2014CV991882, Sophia
Bierman v. Charles A. Kass, Marianne Kass. She says that
in 2011, Marianne Kass filed an incorrect 1099 for her for
$29, 900 when it should have been $2, 900. In that case, she
says that “Judge Van De Water ruled that Charles A.
Kass DDS had to file an Affidavit of Correction for the 1099
and had to be filed with the IRS and Wisconsin Department of
Revenue on [her] behalf.” Id. The plaintiff
then notes that in the Commissioner's original motion to
dismiss the federal case, the Commissioner asserted that he
had removed the case to federal court because the state court
lacked jurisdiction. Id. (apparently referencing
Dkt. No. 2 at 2). She argues that in the second motion to
dismiss, the commissioner is arguing that this court
does not have jurisdiction and that she has not stated a
claim. Id. at 2. The plaintiff sees these two
positions as contradictory and confusing. Id. She