United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2017 Decided December 19, 2017
No. 16-5242
REGINALD L. IVY,
APPELLANT
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01976)
Travis Crum, appointed by the court, argued the cause as
amicus curiae in support of appellant. With him on the briefs
was Brian D. Netter.
Reginald L. Ivy, pro se, filed the briefs for appellant.
Clint A. Carpenter, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Joan
I. Oppenheimer, Attorney.
Before: HENDERSON, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: A provision of the
Taxpayer Bill of Rights, 26 U.S.C. § 7433(a), provides for a
civil action against the United States if a taxpayer suffers
damages as a result of reckless, negligent or intentional
disregard of the Code or regulations “in connection with any
collection of Federal tax” with respect to that taxpayer.
Appellant Reginald L. Ivy invokes § 7433(a) to recover
damages he claims to have suffered as a result of a mix-up
relating to the refund due him on his 2011 income tax. Because
the statute waives the government’s sovereign immunity only
for damages suffered in connection with collection of federal
taxes, and Ivy’s injury (if any) related to collection of a student
loan debt, § 7433(a) provides no jurisdictional path for Ivy’s
suit; we affirm the district court’s dismissal of his case.
* * *
The underlying tangles begin with Ivy’s defaulting on a
student loan, prompting the Missouri Department of Higher
Education to notify him in August 2009 that any federal tax
refunds to which he might become entitled would be used first
to pay off his past-due debt. Ivy for a time pursued a course
that mooted this threat; for the 2010-12 tax years, he didn’t file
timely tax returns.
But while Ivy remained off the radar, someone else—
evidently a practitioner of identity theft—filed a 2011 tax return
in Ivy’s name, claiming a tax refund of $1,822. The IRS
certified the matter to the Fiscal Service (a separate bureau
within the Department of the Treasury that was formerly known
as the Financial Management Service) for disbursement of the
claimed refund. The Fiscal Service, aware of Ivy’s “past-due
legally enforceable debt,” 26 U.S.C. § 6402(d), sent the $1,822
3
to the Department of Education (which, as reinsurer, had taken
over the loan after Ivy defaulted). The Department of
Education then reduced Ivy’s outstanding loan balance by the
amount of the claimed refund. Up to this point, the errors
worked in favor of Ivy to the tune of $1,822.
Nearly a year later, in August 2013, Ivy tended to his
student loan debt. He consolidated his loan through one of the
federal government’s direct loan programs and, as a result, no
longer owed any past-due federal debts. In the next month, he
belatedly filed his 2011 tax return, claiming a $634 refund.
The IRS accordingly set out to unscramble the actions
taken in response to the imposter’s filing, specifically the
$1,822 windfall that had flowed to Ivy. It instructed the Fiscal
Service to reduce the amount that had previously been applied
to Ivy’s student loan balance by $1,188—the difference
between the refund claimed by the imposter ($1,822) and the
refund claimed by Ivy ($634).
Ivy responded by suing the IRS, seeking damages
(including the $634) and expenses. He claimed that the federal
government had no right to withhold the $634 because, at the
time he belatedly filed his 2011 return and sought a refund, he
was no longer subject to a past-due debt that could trigger the
offset provisions of § 6402(d).
To the extent that Ivy’s complaint can be read as seeking a
refund of $634, all parties agree that any such claim is now
moot. During the pendency of this appeal, the IRS directed the
Fiscal Service to pay Ivy $717.71 ($634 plus $83.71 in
interest). Ivy accepted the payment.
The district court concluded that it lacked jurisdiction over
the case. Because the refund per se is out of the case, all that
remains is Ivy’s claim for compensatory and punitive damages.
4
As to the former, Ivy points to the burden of having to pay
interest for a time on a “bill with a very high interest rate,”
obligations that Ivy contends he would not have incurred if the
$634 refund had been disbursed in timely response to his
belated filing of his 2011 return. On appeal, Ivy has expressly
embraced the helpful and cogent arguments of the court-
appointed amicus.
* * *
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510
U.S. 471, 475 (1994). Ivy argues that 26 U.S.C. § 7433,
commonly referred to as the Taxpayer Bill of Rights, provides
the requisite waiver:
If, in connection with any collection of Federal tax
with respect to a taxpayer, any officer or employee of
the Internal Revenue Service recklessly or
intentionally, or by reason of negligence, disregards
any provision of this title, or any regulation
promulgated under this title, such taxpayer may bring
a civil action for damages against the United States in
a district court of the United States. Except as
provided in section 7432, such civil action shall be the
exclusive remedy for recovering damages resulting
from such actions.
26 U.S.C. § 7433(a) (emphasis added).
The IRS offers two reasons why § 7433 is inapplicable:
(1) the allegedly improper offset did not involve the collection
of any federal tax but rather the collection of a debt to the
Department of Education; (2) it was officials in the Fiscal
Service not the IRS who performed the acts challenged here.
5
As the first contention is correct, we need not address the
second.
We and other courts have taken seriously the language of
§ 7433(a) limiting its remedy to misconduct tied to tax
collection. In Kim v. United States, 632 F.3d 713 (D.C. Cir.
2011), we held that executing a lien and demanding payment
through a notice of assessment constituted tax collection
activities. Id. at 716-17. In a later decision involving the same
litigants, we found that a letter sent by the IRS in response to
frivolous correspondence “was the antithesis of a collection
effort” because it did not involve “an assertive effort to collect
allegedly unpaid taxes—much less an abusive one.” Kim v.
United States, 707 F.3d 335, 337 (D.C. Cir. 2013). Other
circuits have similarly limited § 7433’s reach to situations in
which the IRS has “tak[en] an affirmative step to recover” taxes
owed to the government. Agility Network Servs., Inc. v. United
States, 848 F.3d 790, 794 (6th Cir. 2017); see also Gonsalves
v. IRS, 975 F.2d 13, 16 (1st Cir. 1992).
We observed in the first Kim case that § 7433(a)
encompasses only “collection-related activities,” 632 F.3d at
716, and amicus urges us to view that phrase as including the
IRS’s activities here. The IRS collected taxes from Ivy, and it
was those tax dollars that were offset by a debt that was no
longer past-due; accordingly, argues amicus, the activities at
issue were “collection-related.” But a reading so weakly
tethered to the tax collection process itself would extend
§ 7433(a)’s remedies to everything the IRS does. “The agency
exists to collect revenue, after all.” Agility Network Servs., 848
F.3d at 795; see also Gonsalves, 975 F.2d at 16 (refusing to
apply § 7433(a) to an allegedly wrongful refusal to refund
taxes). Moreover, Congress could reasonably have thought that
the IRS’s actual collection processes posed the greatest risk of
dangerous abuse.
6
Here, the IRS took no affirmative steps to collect taxes.
Even if the conduct of the Fiscal Service (as opposed to the
IRS) were encompassed by § 7433, the only obligation it
sought to collect was a non-tax debt. As the IRS rightly points
out, Ivy’s taxes had already been collected (through income tax
withholding, presumably) at the time that he argues the federal
government improperly withheld his refund. Neither the IRS
nor the Fiscal Service made any further effort to collect taxes
for the 2011 tax year.
We therefore conclude that we lack jurisdiction to hear
Ivy’s damages claim. For the reasons enumerated by amicus,
see Amicus Br. at 26 n.5, we also find the district court properly
dismissed Ivy’s Bivens claim.
We note that 26 U.S.C. § 6402(g), while generally barring
review of the Fiscal Service’s reduction under other
subsections of § 6402 of the amount slated to be refunded to a
taxpayer, specifies that it “does not preclude any legal,
equitable, or administrative action against the Federal agency
or State to which the amount of such reduction was paid.” See
Joint Appendix 22, Letter from Fiscal Service to Reginald Ivy
(Sept. 26, 2012) (notifying Ivy to contact the Department of
Education if he disputed the existence of the non-tax debt).
That clause of § 6402(g), preserving any otherwise existing
rights against an entity that was “paid” the amount of a refund
reduction, fits comfortably with our reading of § 7433(a).
* * *
The judgment of the district court is
Affirmed.