IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2009
No. 08-50916 Charles R. Fulbruge III
Summary Calendar Clerk
ROBERT W. DOUGLAS
Plaintiff-Appellant
v.
UNITED STATES
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC 5:07-CV-593
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Robert W. Douglas failed to pay the income taxes he owed for
multiple years, including at least 1998 and 2000-2003. Between 2000 and 2003
the IRS assessed tax liabilities against Douglas based on returns prepared under
I.R.C. § 6020(b) which authorizes the IRS to create returns for taxpayers who
fail to file or file fraudulent returns. In May 2006, the IRS mailed Douglas a
notice of intent to levy with respect to his 1998 and 2000-2003 taxable years.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50916
Douglas requested a collection-due-process hearing under I.R.C. § 6330 to
contest the levies, but the IRS Appeals Office concluded that the assessments
were properly made. The IRS issued notices of levy in May 2007 to two banks,
reflecting a total amount due of $168,139.99; the IRS was able to collect $764.34
from Frost National Bank and $69.93 from Wachovia Bank. These levys satisfied
the 1998 deficiencies. As of shortly thereafter, Douglas had unpaid federal
income tax liabilities of $94,554.90 for 2000, $11,216.41 for 2001, $10,937.18 for
2002, and $12,764.23 for 2003.
Douglas filed a complaint in the district court on July 13, 2007, seeking
damages for alleged unauthorized collection actions in connection with the levys
on his bank account, refunds of federal income tax, and injunctive relief. The
district court granted summary judgment to the IRS. We now affirm.
We review a grant of summary judgment de novo. Texas Industries, Inc.
v. Factory Mutual Ins. Co., 486 F.3d 844, 846 (5th Cir. 2007). Douglas argues
first that the levys required his authorization or a court order. But when a
taxpayer fails to pay assessed taxes, the amount he owes, plus any interest and
penalties, becomes a lien in favor of the United States automatically. I.R.C. §§
6321, 6322. The Supreme Court has held that the administrative collection
scheme by means of levy is Constitutional. See, e.g., United States v. Nat’l Bank
of Commerce, 472 U.S. 713, 721 (1985). Further, Douglas is mistaken in arguing
that there have been no implementing regulations passed that would empower
the government to make assessments or collections under the Internal Revenue
Code. In fact “[n]umerous regulations have been promulgated concerning [the
IRS’s] assessment and collection authority.” Stafford v. Commissioner, 73 T.C.M.
(CCH) 1848, 1851-52 (1997). Further, courts have consistently held that
provisions of the Code do not have to be implemented by regulation in order to
be effective. See, e.g., United States v. Hicks, 947 F.2d 1356, 1360 (9th Cir. 1991).
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No. 08-50916
Douglas also appears to demand a refund. A taxpayer must timely file an
administrative claim with the IRS before seeking a refund in court. PALA, Inc.
Employees Profit Sharing Plan & Trust Agreement v. United States, 234 F.3d
873, 877 (5th Cir. 2000). A taxpayer seeking a refund must also prove that he
has paid the IRS-assessed liability in full before filing suit. Flora v. United
States, 362 U.S. 147, 177 (1960). Douglas has failed to do either. His argument
that the IRS committed “fraud” by filling out returns on his behalf as authorized
by I.R.C. § 6020(b) is frivolous. Douglas is thus not entitled to a refund for any
payments made or amounts levied by the IRS.
Douglas finally argues that the district court erred in denying his motion
for summary judgment because he is a “non-taxpayer.” According to Douglas, he
was born and domiciled in the State of Texas and has refused to “volunteer” to
pay income tax, and no federal statute requires him to pay taxes because he is
not an employee of the federal government. Douglas unsurprisingly cites no law
in support of these claims. As discussed above, the IRS acted properly in levying
his funds and Douglas is not entitled to a refund. The judgment of the district
court is AFFIRMED.
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