Taxpayers

Wage earners are direct tax payers

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Heuer vs U.S.

[0348] Douglas J. Heuer, Plaintiff v. United States of America, Defendant

US District Court, Dist. Ore, Civil No. 83-24-JU, 4/11/83.

[Code Sec. 7428]

Suits by nontaxpayers: Jurisdictions: Taxpayer suit - The district court dismissed the taxpayer's petition due to lack of subject matter jurisdiction. The taxpayer could not sue the IRS under Sec. 7426 to recover withheld taxes because the taxes in dispute were his own. The IRS did not waive sovereign immunity. Back reference: 15784.02.

Douglas J. Hener, 105 Kingwood Dr., McMinnville, Ore. 97121, for plaintiff. Charles Turner, United States Attorney, Portland, Ore. 97207, G. Scott Nebergail, Department of Justice, Washington, D. C. 20530, for defendant.

Findings and Recommendation Ju, Magistrate: Plaintiff apparently had $7.504.52 withheld from his wages by the Internal Revenue Service (IRS) in 1982. Plaintiff claims that the IRS wrong fully collected the money because it did not have jurisdiction over him or his wages, and because he was given no opportunity to dispute its determination. Plaintiff alleges jurisdiction under 28 U. S. C. $1331, and 28. U. S. C. 1346(e); which grants original jurisdiction for civil actions against the United States provided for in 26 U. S. C. 7426 Section 7426 permits actions by a person other than a taxpayer who claims an interest in property levied on.

The United States moves to dismiss for lack of subject matter jurisdiction, on the ground that there has been no waiver of sovereign immunity.

Although 26 U. S. C. 7426 allows suits against the United States, that is not applicable here, because plaintiff is not person "other than the taxpayer." He refers to himself as "nontaxpayer," but it is evident that the taxes he disputes were withheld from his wages, and that he is the taxpayer, Thus, he does not fit into section 7426. Plaintiff's complaint also does not qualify as a tax refund suit under section 7422. That section provides that no civil action may be maintained until an administrative claim for refund has been filed with the Secretary of the Treasury. Thus, the doctrine of sovereign immunity applies.

Defendant's motion to dismiss should be granted.