Vidurek v. Pollen

JOHN VIDUREK, KIMBERLY VIDUREK, and JAMES VIDUREK Plaintiffs, v. PIM POLLEN, MARGARETH DE WIT, ALESSANDRO DONETTI, N. CASSADINE, J. MELENDEZ, SUSAN LAMASTRO, JEANETTE WILLET, FRANK J. CHAN, CHARLES P. RETTIG, BOBBI S. MARTIN, THE CBE GROUP, INC., STEVE DOUGLAS, MIKE FROST and RANDALL KAMM, Defendants.

No. 20-CV-6714 (CS)

United States District Court, S.D. New York

September 7, 2021

Appearances:

John Vidurek, Kimberly Vidurek, James Vidurek, Hyde Park, New York, Pro Se Plaintiffs.

Brandon H. Cowart, Assistant United States Attorney, Southern District of New York, New York, New York, Counsel for Federal Defendants.

OPINION & ORDER

CATHY SEIBEL, U.S.D.J.

Plaintiffs John Vidurek, Kimberly Vidurek, and James Vidurek (collectively, “Plaintiffs”), proceeding pro se, bring this action against Defendants Charles P Rettig, Commissioner of the Internal Revenue Service (“IRS”), and IRS employees Natalie Cassadine Jonnie Melendez, Susan Lamastro, Jeanette Willet, Frank Chan and Bobbi S. Martin (collectively, the “Federal Defendants”), as well as The CBE Group, Inc. and three of its executives, Steve Douglas, Mike Frost, and Randall Kamm (collectively, the “CBE Defendants”).^[1]

The Federal Defendants removed this action from New York Supreme Court, Dutchess County, on August 20, 2020, under 28 U.S.C. § 1442(a)(1). (Doc. 1.) Before the Court is the Federal Defendants' motion to dismiss under Rules 12(b)(1), 12(b)(5) and 12(b)(6). (Doc. 18.)

For the following reasons, the Federal Defendants' motion is GRANTED and the claims against them are dismissed, and Plaintiffs' claims against the CBE Defendants are dismissed sua sponte.

I. BACKGROUND

Plaintiffs^[2] filed this lawsuit in response to the IRS's efforts to assess and collect taxes. The following facts are drawn from Plaintiffs' July 21, 2020 “Action at Law” and documents attached thereto, (IC), ^[3] Plaintiffs' November 19, 2020 “Action at Law, ” (Doc. 15 (“Amended Complaint” or “AC”)), ^[4] and Plaintiffs' opposition to the motion to dismiss, (Doc. 23 (“Ps' Opp.”)). See Washington v. Westchester Cnty. Dep't of Corr., No. 13-CV-5322, 2015 WL 408941, at *1 n.1 (S.D.N.Y. Jan. 30, 2015) (court may give pro se plaintiff the benefit of considering facts in original complaint even if they have not been repeated in amended complaint); Braxton v. Nichols, No. 08-CV-8568, 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010) (“[A]llegations made in a pro se plaintiff's memorandum of law, where they are consistent with those in the complaint, may also be considered on a motion to dismiss.”).^[5] I accept as true the facts, although not the conclusions, in those documents.^[6]

A. Facts

This case arises, primarily, from a dispute between Plaintiffs and the IRS regarding the Plaintiffs' tax liability for tax years 2014, 2015, and 2016. Plaintiffs assert that the IRS's position is “uncertified[, ] unsupported[, and] preposterous.” (AC at 5.) In short, Plaintiffs contest their assessed tax liabilities for those years on the grounds that James did not hold a job until 2019 (and thus did not work from 2014-2016);^[7] Kimberly has never held a job and “has been disabled for more than ten years”; and “John took an early retirement and had no income from 2014 through 2016.” (Id.)

While Plaintiffs assert that this dispute is only about tax years 2014, 2015, and 2016, their narrative starts with their dispute regarding John's tax year 2009 liability.^[8] In short, the IRS had placed a $124, 762.43 lien on John's property for unpaid taxes for tax year 2009, which the IRS later released. (IC at 27.) On September 2, 2013, the IRS sent a new bill for tax year 2009 for only $80.64. (Id. at 28.) Plaintiffs assert that this $80 bill, which John has disputed, has escalated to the current amounts due. (Id. at 9.) This assertion is belied by the notices Plaintiffs attached as exhibits to the Initial Complaint, which reflect that the $80.64 is for tax year 2009, and the other disputed amounts - which form the actual bases for this dispute - are for tax years 2014, 2015, and 2016. (Id. at 14-24, 28-29, 39-48.)^[9]

According to Plaintiffs, since 2014 “ro[gu]e agents” have sent Plaintiffs “numerous IRS form letters, ” claiming “absurd amounts” in tax liabilities. (Id. at 9.) Based on the correspondence attached to the Initial Complaint, it appears that on October 30, 2018, each of the three plaintiffs wrote in response to correspondence from IRS employee Defendant Jeanette Willet dated October 16, 2018, which apparently included a roughly sixty-page examination report. (Id. at 35, 37-38.)^[10] The October 30 letters from the Plaintiffs disputed the assessment. (Id.)

On June 19, 2019, the IRS sent a letter, signed by Defendant Susan Lamastro, informing James Vidurek that the information he had submitted to the IRS did not justify a change to his assessed liability for tax years 2014, 2015, and 2016. (Id. at 32-33.) The letter set out the process for James to challenge the determination further, notifying him that he could dispute the IRS's findings by filing a petition with the Tax Court, but that if he failed to timely do so, the IRS would close the case and send him a bill “as required by law.” (Id.)^[11] On June 27, 2019, James responded that certain enclosures referenced in the IRS letter were not included and asked the IRS to send a “certified Proof of Claim Affidavit Form 4490 . . . filed in the Federal District Court” so he could “understand and defend against your claim properly.” (Id. at 31.) There is no evidence that James or any other Plaintiff sought administrative relief through the IRS or in Tax Court.

In October 2019, the IRS sent John Vidurek a “Notice of intent to seize (levy) your property or rights to property” in order to collect $81, 259.24 owed for the 2014 tax year, (id. at 39), $96, 267.30 owed for the 2015 tax year, (id. at 41), and $70, 251.58 owed for the 2016 tax year, (id. at 43). The letters warned that the IRS might seize John's property within 30 days if he did not call or make the payment. Kimberly Vidurek and James Vidurek also received notices around the same time regarding the IRS's assessment of their 2014, 2015, and 2016 tax liability.^[12] This assessment was the result of an audit of each of the three Plaintiffs and included significant interest and penalties for failure to pay and failure to file. (See id. at 15, 17, 40, 42, 55 (referencing audit of John Vidurek); id. at 20-21, 45, 52 (referencing audit of Kimberly Vidurek); id. at 24, 48, 54 (referencing audit of James Vidurek).)

In response to these notices, Plaintiffs sent a letter to the IRS on November 30, 2019 asserting that they “had no clue” what the IRS was talking about, stating that they had “never” submitted tax forms for 2014-2016, and demanding that the IRS send copies of “‘Certified Proof of Claim Affidavit Form[] 4490 Rev. 2-2005' that is to be filed in the Federal District Court by law.” (Id. at 34.) In what appears to be the same letter, Plaintiffs stated, “[W]e are in the U.S. Supreme Court concerning a lawsuit against IRS agents therefore you should not be communicating to us, ”^[13] and closed by asking whether the IRS was “triple-dipping here on fraudulent billings[.]” (Id. at 36.)

On December 16, 2019, both James and Kimberly Vidurek were notified of the IRS's intent to levy their property for their unpaid 2014, 2015, and 2016 taxes. (Id. at 59-66.) These notices were sent separately to James and Kimberly but reflect identical amounts due as of December 16, 2019: $81, 806.47 for tax year 2014, (id. at 62, 66), $97, 339.70 for tax year 2015, (id. at 61, 65), and $69, 303.23 for tax year 2016, (id. at 60, 64). On December 26, 2019, John also received a form notice from the IRS, signed by Defendant Frank J. Chan, informing him that if he did not pay his outstanding balance for tax years 2014, 2015, and 2016 (in the amounts of $82, 443.77, $98, 944.10, and $72, 263.34, respectively) he would be subject to potential enforcement action, including seizure of wages or property. (Id. at 68-71.)

In response to these notices, on January 18 and 22, 2020, Plaintiffs each sent separate but substantively similar letters to the IRS asserting that the assessed balances owed were erroneous, directing the IRS to fill out Form 4490 “and attest to the proof of claim, ” further directing the IRS to fill out Form 56 “which is necessary for seizure, ” and stating that once they received “these affidavits” they intended to “investigate the claims and send the necessary corrections to your records to end this matter.” (Id. at 59, 63, 67.)

The IRS responded to James on February 25, 2020, in what appears to be a form letter signed by Defendant Bobbi S. Martin, notifying him that the IRS had received his correspondence regarding his liability for tax year 2014 and intended to look into the matter further. (Id. at 49-50.) On March 30, 2020, the IRS sent James notice that his overdue taxes had been assigned to a private collection agency, CBE Group, Inc., (id. at 81-84), and on April 10, 2020, The CBE Group, Inc. sent James a collection letter regarding his outstanding $255, 096.09 balance owed to the IRS - $83, 227.18 in assessed tax, interest, and penalties for tax year 2014; $100, 082.90 in assessed tax, interest, and penalties for tax year 2015; $71, 786.01 in assessed tax, interest, and penalties for tax year 2016, (id. at 86-87).

B. Procedural History

In April 2020, Plaintiffs sent the Federal Defendants, “IRS Inc., ” and Pim Pollen, Margareth de Wit, and Alessandro Donetti^[14] a “Notice and Demand, ” issued by their self-proclaimed “Court of Record.” (Id. at 7.) The “Notice and Demand” was “served” by mail. (Id. at 100.)

Plaintiffs' “Notice and Demand” states that the IRS must provide “proof of claim and...