Anti-Injunction Act, 26 U.S.C. §7421
TITLE 26 > Subtitle F > CHAPTER 76 > Subchapter B > Sec. 7421.
Sec. 7421. - Prohibition of suits to restrain assessment or collection(a) Tax
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), and 7426(a) and (b)(1), 7429(b), and 7436, 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.
Perry v. United States, 294 U.S. 330; 55 S.Ct. 432 (1935):
[NOTE: The Constitution and the Bill of Rights are Contracts that may also not be impaired by sovereign immunity or through legislation such as the Anti-Injunction Act above. Congress cannot by legislation undermine or eliminate its duty to obey the Constitution, from which it derives all of its authority. It is the servant of the Constitution and the servant cannot destroy or impair or be greater than the Master.]
"The argument in favor of the Joint Resolution, as applied to government bonds, is in substance that the government cannot by contract restrict the exercise of a sovereign power. But the right to make binding obligations is a competence attaching to sovereignty. 3 In the United States, sovereignty resides in the people who act through the organs established by the Constitution. Chisholm v. Georgia, 2 Dall. 419, 471; Penhallow v. Doane's Administrators, 3 Dall. 54, 93; McCulloch v. Maryland, 4 Wheat. 316, 404, 405; Yick Wo v. Hopkins, 118 U.S. 356, 370 , 6 S.Ct. 1064. The Congress as the instrumentality of sovereignty is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared. The powers conferred upon the Congress are harmonious. The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obli- [294 U.S. 330, 354] gations. The fact that the United States may not be sued without its consent is a matter of procedure which does not affect the legal and binding character of its contracts. While the Congress is under no duty to provide remedies through the courts, the contractual obligation still exists, and, despite infirmities of procedure, remains binding upon the conscience of the sovereign. Lynch v. United States, supra, pages 580, 582, of 292 U.S. 54 S.Ct. 840."
[Perry v. United States, 294 U.S. 330; 55 S.Ct. 432 (1935)]
Journal of the Continental Congress; October 26, 1774, in a Petition to the King of England:
On the solid foundation of this principle, Englishmen reared up the fabrick of their constitution with such a strength, as for ages to defy time, tyranny, treachery, internal and foreign wars: And, as an illustrious author1 of your nation, hereafter mentioned, observes,--“They gave the people of their Colonies, the form of their own government, and this government carrying prosperity along with it, they have grown great nations in the forests they were sent to inhabit.”
[Note 1: 1 Montesquieu.]
In this form, the first grand right, is that of the people having a share in their own government by their representatives chosen by themselves, and, in consequence, of being ruled by laws, which they themselves approve, not by edicts of men over whom they have no controul. This is a bulwark surrounding and defending their property, which by their honest cares and labours they have acquired, so that no portions of it can legally be taken from them, but with their own full and free consent, when they in their judgment deem it just and necessary to give them for public service, and precisely direct the easiest, cheapest, and most equal methods, in which they shall be collected.
The influence of this right extends still farther. If money is wanted by Rulers, who have in any manner oppressed the people, they may retain it, until their grievances are redressed; and thus peaceably procure relief, without trusting to despised petitions, or disturbing the public tranquillity.
South Carolina
v. Regan, 465 U.S. 367 (1984)
When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that "no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." Act of Mar. 2, 1867, 10, 14 Stat. 475. 10 Although the Act apparently has no recorded legislative history, Bob Jones University v. Simon, 416 U.S. 725, 736 (1974), the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax.
The Act originated as an amendment to a statute that provided that
"[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue . . . and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision . . . ." Internal Revenue Act of July 13, 1866, 19, 14 Stat. 152.
The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, 10, 14 [465 U.S. 367, 374] Stat. 475. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in Snyder v. Marks, 109 U.S. 189, 193 (1883), "[t]he remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden." This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding.The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Packing, supra. Williams Packing did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams Packing and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy.
Williams Packing was a taxpayer's suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable harm. 370 U.S., at 6 -7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams Packing with the alternative remedy of a suit for a refund. Id., at 7.
In each of this Court's subsequent cases that have applied the Williams Packing rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams Packing and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund. [465 U.S. 367, 375]
For example, in Bob Jones, supra, the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain "the assessment or collection of any tax" within the meaning of the Anti-Injunction Act. 416 U.S., at 738 -739. Applying the Williams Packing test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the merits. 416 U.S., at 749 . In rejecting the taxpayer's challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that "our conclusion might well be different" if the aggrieved party had no access to judicial review. Id., at 746. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a "friendly donor" to obtain judicial review of the Service's revocation of its tax exemption. Id., at 747, n. 21. 11
In addition, in Alexander v. "Americans United" Inc., 416 U.S. 752 (1974), decided the same day as Bob Jones, the Court considered a taxpayer's action to require the Service to reinstate its tax-exempt status. 12 The Court applied the Williams Packing test and held that the action was barred [465 U.S. 367, 376] by the Act. Finally, in United States v. American Friends Service Committee, 419 U.S. 7 (1974) (per curiam), the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams Packing rule and found that the suit was barred by the Anti-Injunction Act. In both of these cases, the taxpayers argued that the Williams Packing test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund suits. 416 U.S., at 761 ; 419 U.S., at 11 . This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question.
The analysis in Williams Packing and its progeny of the purposes of the Act provides significant support for our holding today. Williams Packing expressly stated that the Act was intended to protect tax revenues from judicial interference "and to require that the legal right to the disputed sums be determined in a suit for refund." 370 U.S., at 7 (emphasis added). Similarly, the Court concluded that the Act was also designed as "protection of the collector from litigation pending a suit for refund," id., at 7-8 (emphasis added). The Court's concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit. 13
Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction Act. In 1966, in 110(c) of the Federal Tax Lien Act, Pub. L. 89-719, 80 Stat. 1144, Congress amended the Anti-Injunction Act to read, in pertinent [465 U.S. 367, 377] part, 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." Ibid. The central focus of the added phrase, "by any person, whether or not such person is the person against whom such tax was assessed," was on third parties whose property rights competed with federal tax liens. Bob Jones, 416 U.S., at 732 , n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. Ibid.; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966). 14 Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States. 15 The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by 110(a) of the Federal Tax Lien Act was exclusive. 416 U.S., at 732 , n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today. 16 [465 U.S. 367, 378]
In sum, the Anti-Injunction Act's purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy [such as NONTAXPAYERS]. 17 In this [465 U.S. 367, 379] case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of 103(j)(1), be liable for the tax on the interest earned on those bonds. South Carolina will [465 U.S. 367, 380] incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of 103(j)(1). Accordingly, the Act cannot bar this action.
[South Carolina v. Regan, 465 U.S. 367 (1984)]
Great IRS Hoax, Section 8.4.2: Defeating the Anti-Injunction Act (26 U.S.C. §7421)
The Anti-Injunction Act, 26 U.S.C. §7421, states in pertinent part:
TITLE 26 > Subtitle F > CHAPTER 76 > Subchapter B > Sec. 7421.
Sec. 7421. - Prohibition of suits to restrain assessment or collection(a) Tax
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), and 7426(a) and (b)(1), 7429(b), and 7436, 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.
Some people, including Peymon Mottahedeh of Freedom Law School (http://www.livefreenow.org) claim that if the IRS imputes that you have a tax liability and you want to litigate to protect your property rights in federal district court before they begin collection, then under the Full Payment Rule, you must pay the imputed liability first before the court will entertain your case. He says that if you want to avoid paying the imputed tax before litigating, the only option available to you is to go to U.S. Tax Court to have the matter heard first. However, by going to Tax Court, you surrender your right to a jury trial and your right to appeal to the Federal District Court, which bypasses an important Constitutional protection under the Seventh Amendment to have a jury trial. This section shall establish the concept of a person called a “nontaxpayer” and show that the Full Payment Rule does not apply to nontaxpayers and it will show that the only people who are “taxpayers” for Subtitle A income taxes are those who volunteer to be, because our system is based on self-assessment and payment and not on distraint, according to the Supreme Court.
As we stated in section 5.6.3 of the Great IRS Hoax entitled "Taxpayer v. Nontaxpayer", there are two types of Americans: "taxpayers" and "nontaxpayers".
"The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law. With them Congress does not assume to deal, and they are neither of the subject nor of the object of the revenue laws..."
"The distinction between persons and things within the scope of the revenue laws and those without is vital."
[Long v. Rasmussen, 281 F. 236 @ 238(1922)]The IRS has no delegated authority to declare or make a person who is a "nontaxpayer" into a "taxpayer":
"A reasonable construction of the taxing statutes does not include vesting any tax official with absolute power of assessment against individuals not specified in the states as a person liable for the tax without an opportunity for judicial review of this status before the appellation of 'taxpayer' is bestowed upon them and their property is seized..." Botta v. Scanlon, 288 F.2d. 504, 508 (1961)
The same is true of the federal courts:
"And by statutory definition the term "taxpayer" includes any person, trust or estate subject to a tax imposed by the revenue act. ...Since the statutory definition of taxpayer is exclusive, the federal [and state] courts do not have the power to create nonstatutory taxpayers for the purpose of applying the provisions of the Revenue Acts..."
[C.I.R. v. Trustees of L. Inv. Ass'n., 100 F.2d.18 (1939)]___________________________________________________________________
United States Code
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
PART VI - PARTICULAR PROCEEDINGS
CHAPTER 151 - DECLARATORY JUDGMENTS
Sec. 2201. Creation of remedy(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
(b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act.
The reason for this is clear:
1. "Our tax system is based upon voluntary assessment and payment, not upon distraint"
[Flora v. United States, 362 U.S. 145 (1960)]2. There is no statute making anyone liable for the payment of Subtitle A income taxes. The implementing regulation at 26 CFR §1.1-1 that creates an imputed liability is illegal, null, and fraudulent on its face because it exceeds the scope of the statute it implements at 26 U.S.C. §1.
"To the extent that regulations implement the statute, they have the force and effect of law...The regulation implements the statute and cannot vitiate or change the statute..."
[Spreckles v. C.I.R., 119 F.2d, 667]Consequently, the only person who can make you, a natural person, into a "taxpayer" and a person "liable for" the Subtitle A personal income tax is you and only you! That is why even our own federal government says our system of taxation is based on voluntary compliance and self-assessment:
"Our tax system is based on individual self-assessment and voluntary compliance".
[Mortimer Caplin, Internal Revenue Audit Manual (1975)]Any other approach to Subtitle A income taxation of natural persons leads us to the conclusion that income tax forms are not voluntary, but compelled, and if they are compelled, then they are inadmissible as evidence in court as determined by the U.S. Supreme Court in Weeks v. United States, 232 U.S. 383 (1914) because they were illegally obtained through duress. Absent evidence and first-hand knowledge, there can be no way to create a tax liability. The W-2's your employer sends to the IRS are merely hearsay evidence.
Although many in the government and legal profession would like to deceive you into believing otherwise, it is always possible and advisable to recover illegally collected taxes or to stop the wrongful collection of illegally or improperly assessed taxes without paying the illegal tax first:
"Statute prohibiting suits to restrain assessment or collection of Federal taxes is general in its terms and should not be construed as abrogating equitable principles which permit suits to restrain collection where exaction is illegal and there exist special circumstances sufficient to bring case within some acknowledged head of equity jurisdiction 26 U.S.C.A. § 3653.
"Statute prohibiting suits to restrain assessment and collection of Federal taxes is directed at the person liable for taxes and is not intended to preclude courts from affording protection to one not liable to taxes whose property may be in danger of seizure and sale by the taxing authorities." Shelton v. Gill, 202 F.2d 503 (1953)
And here is another example from an similar but earlier Supreme Court decision in the case of Miller v. Standard Nut Margarine Co., 284 U.S. 498; 52 S.Ct. 260; 76 L.Ed. 422 (1932)":
“Notwithstanding the Federal statute declaring that no suit for the purpose of restraining the collection of any tax shall be maintained in any court, a suit may be maintained to enjoin collection where complainant shows that in addition to the illegality of the exaction there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence.”
“When a law is passed, certified, signed, and filed, it must as to form, be conclusive.” P. 502; 426. [Supporting citation omitted.]
“Being a revenue law, it must be construed most favorably in behalf of the taxpayer.” P. 502; 426. [Supporting citations omitted.]
“It is elementary that tax laws are to be interpreted liberally in favor of taxpayers and that words defining things to be taxed may not be extended beyond their clear import. Doubts must be resolved against the Government and in favor of taxpayers.” P. 508; 429.
A knowledge of the above information can be very powerful in addressing wrongs of the Internal Revenue Service and in defeating the Anti-Injunction Act (26 U.S.C. §7421). The case of Economy Plumbing and Heating v. United States, 470 F.2d 585 (1972) very clearly describes how to proceed to prevent illegal assessment or collection of taxes against "nontaxpayers":
"In support of the foregoing conclusions, we wish to point out and emphasize that Congress has established a well-defined and comprehensive administrative system for the recovery of overpaid taxes by taxpayers. All taxpayers who have overpaid their taxes are within this system and must follow the appropriate procedures and regulations, including the timely filing of claims for refunds for overpayment of taxes, if they are to have the benefits of the system. On the other hand, persons who are not taxpayers are not within the system and can obtain no benefit by following the procedures prescribed for taxpayers, such as filing of claims for refunds. For example, there have been many cases where parties have sued to enjoin the assessment or collection of their moneys to pay the taxes of another, notwithstanding Section 263 of the Internal Revenue Code of 1939 (26 U.S.C. §3653 (1952 ed.) that provided that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court". The courts have allowed these suits because the parties filing the suits were not taxpayers and were outside the revenue system of which the above statute is part. See Long v. Rasmussen, 281 F. 236 (D.Mont. 1922); Rothensies v. Ullman, 110 F.2d 590 (3rd Cir. 1940); Raffaele v. Granger, 196 F.2d 620 (3rt Cir. 1952); and Bullock v. Latham, 306 F.2d 45 (2d Cir. 1962). In Long v. Rasmussen, the court said:
"* * * They [the revenue laws] relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law. * * * [Id. 281 F. at 238]
"In other cases suits have been filed by nontaxpayers whose property has already been taken to pay the taxes of others, without filing claims for refund, and such suits have been allowed against the Collector or District Director of Internal Revenue in actions similar to the old action in assumpsit for money had and received, even though lacking in statutory authority."
"Our plaintiffs are not taxpayers and could not sue for a tax refund as a taxpayer could. All they could do was to sue to recover their property, which was the funds due them as an equitable adjustment under the contract, and this is exactly what they have done.
"The above cases are illustrative of the proposition that a nontaxpayer is outside the administrative system set up for the collection of a refund of overpaid taxes, and is not required to file a claim for refund to recover money taken from him to pay the taxes of another."
[Economy Plumbing & Heating v. United States, 470 F.2d 585 (1972)]Wow! This is powerful stuff folks! So how to we enjoin or stop the illegal collection of a tax against a "nontaxpayer"? The courts have identified the criteria as follows:
- The party against whom collection was instituted is not liable for the tax. See Shelton v. Gill, 202 F.2d 503 (1953)
- No formal assessment was issued against the injured party. See Gordon v. U.S. Treasury Dept., Int. Rev. Serv., 322 F.Supp. 537 (1970). The way to qualify for this type of motion is to use the FOIA to request a copy of any and all valid assessments prior to your first hearing and to include the response as evidence with your pleading to enjoin collection. Remember, the only person who can assess a natural person is himself or herself! Substitute for returns are not authorized for form 1040 or 1040NR taxes!
- The property of a person other than the intended taxpayer has been wrongfully levied or liened. (see 26 U.S.C. 7426(a)(1))
- The "legal remedy is inadequate and it is apparent that, under most liberal view of law and facts, United States cannot establish its claim."
[Walker v. Internal Revenue Service, U.S. Treasury Dept., 333 F.2d 768 (1964)]- A "taxpayer" who is the subject of the assessed tax under may be granted an injunction under "special and extraordinary circumstances of sufficient importance to warrant court interference". Examples might be that the collection of the tax not owed against a nontaxpayer might impose severe hardship. See Martin v. Andrews, 238 F.2d 552 (9th Cir. 1956); Singleton v. Mathis, 284 F.2d 616 (8th Cir. 1960).
According to Internal Revenue Manual section 35.18.9.1:
35.18.9.1 (08-31-1982)
Taxpayers1. It has been uniformly held that the waiver of sovereign immunity in section 1346(a)(1) of the Judiciary Code (28 U.S.C. §1346(a)(1)) only applies to taxpayers, and not nontaxpayers or interested parties. Busse v. United States, 542 F.2d 421 (7th Cir. 1076);Hofheinz v. United States, 511 F.2d 661 (5th Cir. 1975); Eighth Street Baptist Church v. United States, 431 F.2d 1193 (10th Cir. 1970); Phillips v. United States, 346 F.2d 999 (2d Cir. 1965); First Nat'l Bank of Emlenton v. United States, 165 F.2d 297 (3rd Cir. 1959). Accordingly, where a party not liable for the tax has brought a refund suit, a motion to dismiss should be recommended.
Consequently, a nontaxpayer may not sue for a refund to recover taxes voluntarily paid for which he was not liable. If you don’t think you are liable, then for God’s sake don’t pay the tax first and then litigate to get it back! On the surface, this would appear to encourage officials within the federal government to act irresponsibly towards the property rights of Americans who are nontaxpayers because it would create a situation where they could steal property with impunity through illegal levies and liens. However, if this nontaxpayer paid the illegal tax under duress, he may sue for damages and request a writ of mandamus to recover the taxes paid:
"Person voluntarily paying illegal tax has no claim for repayment."
"Person paying illegal tax under duress has legal claim for its repayment, notwithstanding money has gone into treasury and has been paid out by disbursing officers."
"Duress in payment of illegal tax may be either express or implied, and legal duty to refund exists in both instances."
[Austin Nat. Bank of Austin v. Sheppard, 71 S.W.2d 242 (1934)]Similarly, if property of a nontaxpayer was illegally seized or garnished or levied by the IRS, then the nontaxpayer should pursue a writ of mandamus rather than a refund suit, which is an equity suit to compensate for the wrong committed by the government against his property rights.
"...because the state is interested in compelling its agents to obey its commands, it is well settled that mandamus will lie to compel the payment of money by public officials, when the duty to pay it is plain, and the claim is just, undisputed in amount, and based on a clear legal right."
[State v. County Com'rs of Fairfield County, 99 Conn. 378; 121 A. 800 (1923)]Burden of proof
"It has been held by the Supreme Court that under the exception to the Anti-Injunction Act's (26 USCS §7421(a)) prohibition of suits to restrain the assessment or collection of federal taxes, whereby an injunction may be obtained if
(1) it is clear that under no circumstances can the government ultimately prevail, and
(2) equity jurisdiction otherwise exists (see §10[a], supra,)
"the question whether the government will ultimately prevail is to be resolved on the basis of the information possessed by the government at the time of the suit, and that while the burden of producing evidence is on the taxpayer, the government will be required to disclose, through discovery, facts in its sole possession, unless it voluntarily discloses the basis for its assessment, which if sufficient, will terminate discovery proceedings and justify judgment for the government."
[Laing v. United States, 423 U.S. 161; 96 S.Ct. 473; 46 L.Ed.2d 416 (1976)]Other Remedies: Bivens Actions
In addition to the remedies above, nontaxpayes can also pursue a Bivens action against those federal government officials who have illegally attempted to collect or assess taxes against sovereign citizens who are "nontaxpayers". See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388; 91 S.Ct. 1999 (1971).
"A "Bivens action" provides action for damages to vindicate constitutional right when a federal government official has violated such right; action is available if no equally effective remedy is available, no explicit congressional declaration precludes recovery, and no "special factors counsel hesitation." Rauschenberg v. Williamson, C.A. 11(Ga). 785 F.2d 985, 987.
""Bivens action" is nonstatutory counterpart of suit brought pursuant to §1983, and is aimed at federal, rather than state, officials. Mahoney v. National Organization of Women, D.Conn., 681 F.Supp. 129, 132.
"In "Bivens action," damages may be obtained for injuries consequent upon violation of Constitution by federal officials. Kingsley v. Bureau of Prisons, C.A.2 (N.Y.), 937 F.2d 26, 31." Words and Phrases, Vol. 40, p. 134.
The party we are suing in a Bivens action is usually a federal official as a private individual, and because it is an individual, then sovereign immunity of the federal government cannot be asserted to evade liability. Bivens actions involve injuries that cannot be addressed or redressed through statutory means, usually because Congress has refused to pass a statute or law making a harmful action of a federal official illegal. The wrongful collection of federal taxes against nontaxpayers is an example of a behavior congress refuses to make illegal, because they want to STEAL your money with impunity! Here is what one district court said about this:
"Although Fourteenth Amendment's equal protection clause applies only to states, Fifth Amendment's due process clause contains equal protection component applicable to federal government."
"Statutory actions may give breadth to constitutional rights, but congressional inaction cannot suffocate them."
"Among other things, the Constitution is a compendium of rights, and their enforcement does not depend on statutory enrollment. As Bivens establishes, legislative inaction does not vitiate constitutional rights. Statutory actions may give breath to constitutional rights, but congressional inaction cannot suffocate them."
[Davis v. Passman, 544 F.2d 865 (1977) }Bivens actions are based on the idea that public officials are not free of liability if they commit a wrong that is not authorized by their delegated authority:
"But immunity from suit is a high attribute of sovereignty--a prerogative of the State itself--which cannot be availed of by public agents when sued for their own torts. The 11th Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the State's citizens. To grant them such immunity would be to create a privileged class free from liability from wrongs inflicted or injuries threatened. Public agents must be liable to the law, unless they are to be put above the law." [Citing Hopkins v. Clemson Agri. College, 221 U.S. 636].
[Old Colony Trust Co. v. Seattle, 271 U.S. 427; 70 L.Ed. 1019 (1926)]On many occasions, the government will substitute itself as the defendant in a Bivens suit and in doing so, may not assert sovereign immunity. This may only occur, according to the Anti-Injunction Act, if the party injured is not the "taxpayer" or person against whom the tax was assessed, which means they are an innocent third party who has been injured by wrongful collection action. The Anti-Injunction Act states the following with regard to substitution of itself as party for the federal official:
26 U.S.C. §7426 Civil actions by persons other than taxpayers
...
(e) Substitution of United States as party
If an action, which could be brought against the United States under this section, is improperly brought against any officer or employee of the United States (or former officer or employee) or his personal representative, the court shall order, upon such terms as are just, that the pleadings be amended to substitute the United States as a party for such officer or employee as of the time such action was commenced upon proper service of process on the United States."
Do you get the idea from the above that the government runs a protection racket so its employees who are acting outside the law will be free of legal consequence for their improprieties? Sure looks that way to us!
Tuccio v. USA Commissioner of Internal Revenue
Discussion
I. Plaintiffs' Claim for an Injunction
Plaintiffs' claim for an injunction is barred by the Anti-Injunction Act, 26 U.S.C. section 7421(a). As the Supreme Court has noted, the Anti-Injunction Act has no recorded legislative history. Bob Jones University v. Simon, 416 U.S. 725, 736 (1974). Nonetheless, the language of the Act "could scarcely be [*4] more explicit." Id. Section 7421(a) provides:[N]o 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).
The Act was drafted to "withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes." Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5 (1962). Its purpose is to permit the United States to assess and collect taxes with minimal pre-enforcement judicial intervention. Id. at 7. n2 If taxpayers wish to litigate the legality of the Internal Revenue Service's actions, they may (1) petition the Tax Court for a redetermination of a tax deficiency, n3 or (2) pay under protest, and then sue for a refund either in this court n4 or in Court of Claims. n5 Bob Jones University, 416 U.S. at 730-31.