David Lee Smith and Mary Julia Hook, pro sese.

[rogfulton]

These two don't seem at first glance to be a typical TP couple.

http://www.ustaxcourt.gov/InOpHistoric/ ... CM.WPD.pdf

[Dr. Caligari]

The money quote from the Opinion: "His conduct can best be described as an ongoing tantrum."

[jg]

From the prior case T.C. Memo. 2003-266 footnote 6 on page 16 at http://law.onecle.com/tax/2003/smithhook.tcm.wpd16.html

Respondent’s counsel pointed out that petitioner Smith has been sanctioned by other courts. In particular, the Court of Appeals for the Tenth Circuit stated that
Mr. Smith has a long history with this court
marred by repetitive, frivolous filings and general
abuse of the judicial process. This well-documented
course of misconduct began during his tenure as a
practicing attorney, prompting the imposition of
numerous monetary sanctions, his suspension from Tenth
Circuit practice, and ultimately his disbarment by this
court. * * *
Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1231 (10th Cir.
1998). The Court of Appeals also noted that Mr. Smith had been
disbarred by the U.S. Supreme Court. See In re Disbarment of
Smith, 516 U.S. 984 (1995).

See http://bulk.resource.org/courts.gov/c/F ... -1297.html for the Tenth Circuit decision.

[fortinbras]

One of the disciplinary cases against Smith was that he had failed to comply with the penalties meted out to him by a court in which he had wasted a great deal of everybody's time and money with repeated and frivolous interlocutory appeals.

http://scholar.google.com/scholar_case? ... t=20000002

Another of these cases was because he had tried to file (illegally) lawsuits against the very people who had initiated the disciplinary proceeding against him:

http://scholar.google.com/scholar_case? ... t=20000002

He was a lawyer, but he evidently slept through the classes on professional ethics and trial diplomacy.

[.]

The hell you say. A lawyer without tact or scruples? It's unpossible.

[Arthur Rubin]

The hell you say. A lawyer without tact or scruples? It's unpossible.

No, no it's

inconceivable

[Cathulhu]

Hello. My name is Inigo Montoya. You killed my father, prepare to die!

[Demosthenes]

You know what's cool? The man who wrote The Princess Bride, also wrote The Marathon Man the same year. William Goldman rocks!

[JamesVincent]

Obviously it wasnt him, it was the six fingered man. Thats why he thinks he should be allowed to continue.

[LPC]

Smith also filed a complaint with Court of Federal Claims, which was dismissed for lack of jurisdiction.

David Lee Smith v. United States, No. 10-218 (Ct. of Fed. Cls. 11/14/2011).

DAVID LEE SMITH,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

(Filed: November 14, 2011)

Motion to dismiss; RCFC 12(b)(1); Tucker Act; I.R.C. § 7422;
I.R.C. § 7433; I.R.C. § 6512; I.R.C. § 6015; pro se;
tax refund claim; full payment rule

David Lee Smith, Denver, CO, Plaintiff, pro se.

Jennifer Dover Spriggs, Tax Division, United States Department of Justice, Washington, DC, for Defendant.

OPINION

DAMICH, Judge:

Plaintiff David Lee Smith, acting pro se, filed this suit to challenge the tax enforcement and collection actions taken against him and his wife by the Internal Revenue Service ("IRS"). Plaintiff contests the federal-income-tax deficiencies assessed on him by the IRS for the tax years 1992 to 1996 and 2001 to 2006. Plaintiff seeks to obtain a tax refund, civil damages, and various other forms of relief. Plaintiff alleges that this Court has jurisdiction over the refund claim under 28 U.S.C. § 1346 (2006) and the Tucker Act, 28 U.S.C. § 1491 (2006). He also alleges that the Tucker Act gives this Court jurisdiction over his claims for compensation arising under the Due Process Clause of the Fifth Amendment of the U.S. Constitution and under § 7422 and § 7433 of the Internal Revenue Code (I.R.C.) (2006).1

The Government has filed a motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims ("RCFC"). The Government asserts that I.R.C. § 6512(a) bars this Court from exercising jurisdiction over any refund claim relating to a tax year for which a taxpayer already has filed a refund petition with the Tax Court. The Government argues that, with the exception of 2006, Plaintiff properly filed petitions with the Tax Court for all the tax years at issue, thereby barring this Court from exercising jurisdiction over Plaintiff's claims for those years. As for claims relating to tax year 2006, the Government argues that jurisdiction is not proper because Plaintiff did not fully pay the assessed tax for that period prior to filing this suit.

In response, Plaintiff asserts that the Tax Court's decisions regarding the deficiencies for tax years 1992 to 1996 and 2001 to 2005 were "null and void ab initio," and he alleges the Tax Court and the IRS violated his Fifth Amendment due process rights in various ways. Additionally, he argues that, because he contests the taxes due for 2006, the Government cannot establish that he has not paid a deficiency for that year. Further, he asserts that many other sections of the I.R.C. would provide a basis for jurisdiction.

Plaintiff asserts that full discovery is necessary before the Court can rule on the motion to dismiss. Previously, the Court denied Plaintiff's request for discovery, and Plaintiff now requests reconsideration of that decision. Because Plaintiff has not identified any disputed facts which, if established, could support jurisdiction, the Court denies Plaintiff's motion for reconsideration.

Because Plaintiff already filed petitions challenging the deficiencies in Tax Court for the years 1992-1996 and 2001-2005, the Court grants the Government's motion to dismiss the claims involving those years. The Court also grants the Government's motion to dismiss the claims for tax year 2006 because Plaintiff did not pay the full amount of the deficiency before bringing suit. Additionally, the Court denies as moot Plaintiff's motion for reconsideration of the decision denying his motion to set this case for trial on the merits.

[snip]

E. Other Claims for Relief

Plaintiff requests relief under several other theories.

This Court does not have jurisdiction over Plaintiff's claims that he is entitled to damages for unlawful collections. I.R.C. § 7433 only provides for district court jurisdiction over claims for damages for unlawful collections. Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (finding this Court does not have jurisdiction over actions sounding in tort).

Plaintiff also alleges Fifth Amendment due process violations. The due process clause of the Fifth Amendment is not a money-mandating provision under the Tucker Act. See Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987).

Plaintiff requests that the Court transfer his case to a forum with jurisdiction if the Court finds it lacks jurisdiction. No such court exists. Because the bars established by § 6512(a) and the full payment rule apply both to this Court and the district courts, Plaintiff's petitions in the Tax Court and his failure to satisfy the full payment rule prevent any court from having jurisdiction over his claims.

He also requests that he be permitted to amend his complaint to perfect jurisdiction. The Court denies this request. Amending the complaint would be useless because Plaintiff has no meritorious basis upon which he can bring these claims.

To the extent that Plaintiff alleges that other legal theories entitle him to relief, the Court finds that it lacks jurisdiction over those claims. To the extent Plaintiff has requested other forms of relief, the Court denies those requests as without merit.12

III. CONCLUSION

Plaintiff has not established that this Court has jurisdiction over his claims. Accordingly, the Government's motion to dismiss for lack of jurisdiction is GRANTED. The Clerk is directed to dismiss the Plaintiff's complaint.

Edward J. Damich
Judge

[Footnotes omitted]

[LPC]

The Court of Federal Claims has denied a motion to vacate the previous dismissal, and denied a motion for recusal.

Basically, Smith argues that the dismissal must be void because it was wrong, and the judge must be biased because he dismissed the original suit.

DAVID LEE SMITH,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

UNPUBLISHED

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

(Filed: January 31, 2012)

Motion for Relief from Judgment; RCFC 60(b);
28 U.S.C. § 455(a)

ORDER

On November 14, 2011, this Court issued a decision dismissing the complaint of pro se Plaintiff David Lee Smith for lack of subject matter jurisdiction. Smith v. United States, -- Fed. Cl. --, No. 10-218T, 2011 WL 5600158 (Fed. Cl. Nov. 14, 2011) ("Merits Decision"). Mr. Smith had filed suit in this Court to challenge federal income tax deficiencies assessed against him and his wife for the tax years 1992-1996 and 2001-2005. Id. at *1. Before filing in this Court, however, Mr. Smith had filed petitions with the Tax Court disputing assessments for the very same tax years. Id. at *2. This Court held, inter alia, that under I.R.C. § 6512(a), Mr. Smith's petitions in Tax Court barred him from seeking any recovery for the same tax years in this Court. Merits Decision, at *6-*8.

On November 23, 2011, Mr. Smith filed a "Motion for Relief under RCFC 60(b)." In his motion, Mr. Smith makes a passing request for relief from judgment under Rule of the Court of Federal Claims ("RCFC") 60(b)(4), (5), and (6). He also summarily requests that this Judge recuse himself under 28 U.S.C. § 455(a). The rest of his motion impermissibly attempts to reargue this Court's decision on the merits. As explained below, Mr. Smith has not identified any basis for this Court to revisit its decision or for recusal, and therefore, Plaintiff's Motion for Relief is denied.

Rule 60(b)(4) permits a party to obtain relief from judgment if it is "void." Mr. Smith summarily asserts that this Court's judgment was "null and void," presumably with reference to Rule 60(b)(4). In the context of Rule 60(b)(4), "void" means a judgment "so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final." United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).[1] Such a situation will occur "only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard." Id. The record shows that Mr. Smith was given adequate opportunity to be heard before this Court. Mr. Smith was unable to come forward with evidence supportive of jurisdiction, and he was unable to explain how discovery would produce such evidence. Merits Decision, at *5-*6. In his Motion for Relief, Mr. Smith does not point to any "fundamental infirmity" in this Court's decision. Instead, he has re-argued the merits of his case. A judgment is not void simply because it arguably is erroneous, nor is a Rule 60(b)(4) motion a substitute for a timely appeal. United Student Aid Funds, 130 S. Ct. at 1377. Therefore, the Court finds that Plaintiff is not entitled to relief under RCFC 60(b)(4).

Rule 60(b)(5) permits a party to obtain relief from a judgment or order if, among other things, "applying [the judgment or order] prospectively is no longer equitable." The Rule "provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest." Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (quotations omitted). Mr. Smith does not allege any change in facts, change in law, or public interest supporting relief. His motion attempts "to challenge the legal conclusions on which [this Court's] prior judgment or order rests," which is not a proper ground for relief under Rule 60(b)(5). Horne, 129 S. Ct. at 2593. Therefore, the Court finds that Plaintiff is not entitled to relief under RCFC 60(b)(5).

Rule 60(b)(6) is a catchall provision that gives the Court discretion to grant relief from a judgment for "any other reason that justifies relief." In general, the provision is available only when "extraordinary circumstances" are present. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988) (quoting Ackermann v. United States, 340 U.S. 193 (1950)); see Information Sys. and Networks Corp. v. United States, 994 F.2d 792, 795-96 (Fed. Cir. 1993). Mr. Smith has not brought to this Court's attention any extraordinary circumstances justifying relief. That a party merely is dissatisfied by a judgment against him is by no means extraordinary. Therefore, the Court finds that Plaintiff is not entitled to relief under RCFC 60(b)(6).

In the final sentence in his motion, Mr. Smith requests that, in the alternative, this Judge recuse himself from this case under 28 U.S.C. § 455(a) because his "impartiality might reasonably be questioned under all the facts and circumstances." Pl.'s Mot. for Relief at 6. Mr. Smith does not, however, identify any facts and circumstances supportive of recusal.

Section 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The standard is an objective one, Liteky v. United States, 510 U.S. 540, 548 (1994), to be "made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances," Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000) (Rehnquist, C.J., statement on recusal). The Court is aware of no facts or circumstances indicating the appearance of bias or prejudice. Further, the Court observes that Mr. Smith's failure to identify any facts and circumstances supportive of recusal is indicative of the lack thereof. An adverse "judicial ruling[ ] alone almost never constitute[s] a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Therefore, the Court concludes that a reasonable observer considering all the facts and circumstances would not question this Judge's impartiality. Accordingly, Plaintiff's motion for recusal is denied.

For the reasons set forth above, Plaintiff's Motion for Relief under RCFC 60(b) is DENIED and his alternative request for recusal also is DENIED.

Edward J. Damich
Judge

FOOTNOTE

1 Because the relevant portions of RCFC 60(b) and Rule 60(b) of the Federal Rules of Civil Procedure are identical, the Court looks to authorities interpreting FRCP 60(b) to interpret RCFC 60(b). Compare RCFC 60(b) with Fed. R. Civ. P. 60(b); Webster v. United States, 93 Fed. Cl. 676, 679 n.1 (2010) (similarly relying on cases interpreting FRCP 60(b)).

END OF FOOTNOTE

[LPC]

They're back, and the "ongoing tantrum" continues, this time in Colorado District Court, where their claims for refunds have been dismissed. David L. Smith et al. v. United States, No. 1:13-cv-01156 (U.S.D.C. Col. 3/28/2014).

Most of the opinion is mechanical (and predictable), so I'm going to quote just the background and the conclusion.

THIS MATTER comes before the Court on the Recommendation (#60) of the Magistrate Judge that the Defendant United States of America's Motion to Dismiss (#9) be granted. Plaintiffs David L. Smith and M. Julia Hook filed Objections (#62) to the Recommendation, and the government responded (#65).1

I. BACKGROUND

The Plaintiffs, both attorneys acting pro se, are individual taxpayers who, over the span of several years, have a long history of litigating their tax matters.2 A chronology of events leading up to the filing of this action is helpful to put this case in context.

For all tax years at issue, the Plaintiffs filed joint income tax returns and were assessed with income tax deficiencies by the Internal Revenue Service (IRS).

In 2000 and 2002, the Plaintiffs challenged the IRS's assessed deficiencies for tax years 1992 to 1996 by filing petitions in the United States Tax Court. The Tax Court consolidated the petitions into one action. Ultimately, the case was dismissed for failure to prosecute, and the Tax Court entered default judgment against the Plaintiffs. See Smith v. Comm'r of Internal Revenue, T.C. Memo. 2003-266, 2003 WL 22100685 (2003), aff'd sub nom. Hook v. Comm'r of Internal Revenue, 103 Fed.Appx. 661 (10th Cir. 2004).

Later, in 2007, the Plaintiffs filed another petition in Tax Court, seeking redetermination of deficiencies assessed for tax years 2001 to 2005 and attempting to reargue the merits of the Tax Court's previous decision relating to tax years 1992 to 1996. The case was set for trial in May 2010. In 2009, Plaintiff Smith (but not Hook) filed a fourth petition in Tax Court. In this petition, Mr. Smith challenged a levy collection action that the IRS had commenced with respect to unpaid income-tax liability for the 2006 tax year.3

Meanwhile, on January 19, 2010 (before the Tax Court issued its decisions on the 2007 and 2009 petitions), the Plaintiffs sent the IRS a document titled "Protective Claim for Refund and/or Credit." In that document, the Plaintiffs alleged that since 2004, they have paid the IRS "almost $1 million in satisfaction of alleged deficiencies for income taxes, penalties and interest for tax years 1992-1996 and 2001-2006," which amount "exceeds the amount owed by a substantial amount, thus entitling [them] to a refund or credit for the overpayment." The Plaintiffs acknowledged that their claim for a refund or credit was "contingent on the Tax Court's determinations or redeterminations" in their 2007 and 2009 cases.

In April 2010, while Ms. Smith was in bankruptcy and one month before the scheduled trial in Tax Court, Mr. Smith filed a refund suit in the United States Court of Federal Claims. See Smith v. United States, 101 Fed.Cl. 474 (2011). In that suit, Mr. Smith challenged the "tax enforcement and collection actions taken against him and his wife by the [IRS]." He also challenged the tax deficiencies assessed against him for years 1992 to 1996 and 2001 to 2006.

In May 2010, Mr. Smith's 2007 case before the Tax Court went to trial.4 He argued, however, that the filing of suit in the Court of Federal Claims divested the Tax Court of jurisdiction over the entire action and automatically gave the Court of Federal Claims jurisdiction over all claims relating to tax years 1992 to 1996 and 2001 to 2006. In November 2010, the Tax Court issued its decision in the 2007 case, rejecting the jurisdictional argument and finding that the IRS's assessments against Mr. Smith were proper. See Smith v. Comm'r of Internal Revenue, T.C. Memo. 2010-240, 2010 WL 4457709 (2010).

In January 2011, the Tax Court issued its decision in Mr. Smith's 2009 case, finding that the IRS's levy action for unpaid tax in 2006 was proper and dismissing the action. See Smith v. Comm'r of Internal Revenue, Docket No. 27995-09L, Order and Decision (Jan. 7, 2011).

Finally, on November 14, 2011, the Court of Federal Claims issued its decision, finding that it lacked jurisdiction over Mr. Smith's claims and granting the government's motion to dismiss. See Smith, 101 Fed.Cl. at 479-81. Mr. Smith requested that the case be transferred to a district court, but the Court of Federal Claims denied the request because it found that no district court would have subject matter jurisdiction over the claims either. Id. The decision was later affirmed by the United States Court of Appeals for the Federal Circuit. See Smith v. United States, 495 Fed.Appx. 44, 50 (Fed. Cir. 2012).

In reference to the above history of litigation, the Complaint (#1) alleges that "the United States Tax Court, the United States Bankruptcy Court for the District of Colorado, and the United States Court of Federal Claims each declined to exercise jurisdiction to hear and/or decide [the Plaintiffs'] claim for refund and/or credit for income taxes, penalties and interest for tax years 1992-1996 and 2001-2006."

Following the decisions issued by the Tax Court and the Court of Federal Claims, the Plaintiffs sent a series of letters to the IRS:

• On October 25, 2012, the Plaintiffs sent a letter titled "Request for Certificates of Release of Federal Tax Liens." The Plaintiffs requested certificates of release for nine federal tax liens that were imposed at various times in 2004, 2005, 2007, 2008, and 2011, for unpaid balances of tax assessed in tax years 1993 to 1996 and 2001 to 2007. The Plaintiffs stated that release of the liens was required under 26 U.S.C. § 6325(a)(1) because their liabilities were either fully satisfied or unenforceable under 26 U.S.C. §§ 6501 and 6502. They asserted that they "have paid the IRS almost $1,000,000 ($946,500 by [their] calculation) in full satisfaction of alleged taxes, penalties and interest for tax years 1992-1996 and 2001-2006" and argued that their overpayment entitled them to a refund/credit.
  
  Also on October 25, 2012, the Plaintiffs sent a letter titled "Request for Return of Levied/Seized Property." The Plaintiffs requested the "return of real and personal property (including money)," which was "levied on/seized by the IRS Office in Denver, Colorado." The Plaintiffs argued that they are entitled to return of the property under 26 U.S.C. § 6343(d) because either the levies/seizures were premature, not in accordance with administrative procedures, subject to an agreement with the IRS, return of the property would facilitate IRS collection of remaining liability, and/or return of the property would be in the best interests of the Plaintiffs and the United States.
  
  Also on October 25, 2012, Mr. Smith sent a letter titled "Request for a Release of the Continuing Levy" on his Social Security Payments, and "Notice of the Release". Mr. Smith requested release of the continuing levy on his social security payments, which has been in effect since 2007, for alleged deficiencies in tax liability for tax years 1992 to 1996 and 2001 to 2006. Mr. Smith argued that the levy must be released under 26 U.S.C. § 6343(a) because the liability has been fully satisfied.
  
  On October 29, 2012, the Plaintiffs sent to the IRS a Claim for Refund of $362,675 for Tax Years 1992-1996 and 2001-2006. The Plaintiffs stated that they have overpaid their tax liability for tax years 1992 to 1996 and 2001 to 2006, thus entitling them to a refund.
  
  Also on October 29, 2012, the Plaintiffs sent a letter titled "Claim for Refund/Credit in Unknown Amount for Penalties and Interest for Tax Years 1992-1996 and 2001-2006, and Request for Abatement of Penalties and Interest for These Tax Years." The Plaintiffs requested a refund/credit for penalties and interest paid for tax years 1992 to 1996 and 2001 to 2006, again asserting that they overpaid for these years and are therefore entitled to a refund.

The Complaint alleges that the government has not acted on any of the Plaintiffs' requests or claims for refunds. As a result of the government's inaction, a "cloud has been placed on the title to the real and personal property owned by Smith and/or Hook."

The Complaint does not clearly articulate or separate any specific cause of action. Rather, it generally states in an introductory paragraph that "[t]his is a civil action . . . for the recovery of internal-revenue taxes erroneously or illegally assessed or collected without authority, and sums that are excessive or were collected in a wrongful manner under internal-revenue laws, including without limitation 26 U.S.C. §§ 6325, 6331, 6334, 6335, 6337, 6342, 6343, 6402, 6501, 6502, 7422, and 7432; and to quiet title to real and personal property under 28 U.S.C. § 2410."

The Plaintiffs seek the following relief: (1) a credit and/or refund "of almost $1,000,000 ($946,500 by [the Plaintiffs'] calculation) for payment/overpayment of taxes, penalties and interest for tax years 1992-1996 and 2001-2006;" (2) abatement of penalties and tax interest for tax years 1992-1996 and 2001-2006; (3) "[t]he actual, direct economic damages sustained by Smith and/or Hook which, but for the failure of the United States to release the federal tax liens, would not have been sustained," (4) the release of all federal tax liens; (5) the return of all levied/seized property; (6) the release of the continuing levy on Mr. Smith's social security payments; (7) an order quieting title to all real and personal property owned by the Plaintiffs; and (8) interests, costs, attorney fees, and any other just relief.

The government moves to dismiss the Plaintiffs' claims for lack of subject matter jurisdiction and failure to state a claim under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The government has construed the Complaint as asserting a claim within each numbered section. Thus, sections II, VI, and VII correspond to the Plaintiffs' claims for a refund or credit for tax years 1992 to 1996 and 2001 to 2006; sections IV and VI correspond to the Plaintiffs' claim that the IRS failed to return and release levied property; and section III corresponds to the Plaintiffs' claim that the IRS failed to release tax liens.

The Plaintiffs do not object to this construction of their claims. Indeed, in their Response (#11), the Plaintiffs make no substantive argument in opposition to the government's motion. Instead, they argue only that the motion to dismiss must be converted to a motion for summary judgment because the government has attached exhibits to its motion and raised factual issues on the merits. They argue that discovery will be necessary before they can respond to the government's motion because materials pertinent to the motion "are in the exclusive knowledge, possession, custody and control of the United States."

The matter was referred to the Magistrate Judge, who recommends that the government's motion to dismiss be granted. The Recommendation (#60) found that: (1) it was not necessary to convert the motion to dismiss to a motion for summary judgment; (2) 28 U.S.C. § 1346(a)(1) waives sovereign immunity for purposes of this action; (3) the court lacks jurisdiction over the refund claims under 26 U.S.C. § 6512 because the Plaintiffs' tax liabilities were previously litigated in Tax Court and the Plaintiffs have failed to show that their tax liabilities have been paid in full; (4) under 26 U.S.C. § 7421, the court lacks jurisdiction over the claims that the IRS failed to return or release of levied property because the Plaintiffs seek to enjoin the collection of taxes assessed; and (5) the Complaint fails to state a claim that the IRS failed to release tax liens because the Plaintiffs failed to exhaust administrative remedies as required by 26 U.S.C. § 7432.

The Plaintiffs object (#62) to the Recommendation. First, the Plaintiffs argue that the government's motion to dismiss was automatically converted to a motion for summary judgment when the government attached documents outside the pleadings to their motion. They argue that they should therefore be permitted to conduct discovery. Second, they argue that evidence submitted by the government is not admissible, and therefore judgment is not warranted. Third, with regard to their refund claims, the Plaintiffs argue that the Magistrate Judge "mischaracterized the affirmative defenses and other factual matters" raised by the government as issues of subject matter jurisdiction. Fourth, with regard to their claims for return or release of levied property, the Plaintiffs argue that the Magistrate Judge improperly applied 26 U.S.C. § 7421 and/or that their claims fit under an exception to that statute. Finally, with regard to their claim for release of tax liens, the Plaintiffs argue that the Magistrate Judge improperly determined that they failed to exhaust administrative remedies.

III. CONCLUSION

For the forgoing reasons, the Plaintiffs' Objections (#62) are overruled and the Court ADOPTS the Recommendation (#60) that the Defendant's Motion to Dismiss (#9) be GRANTED. All claims are DISMISSED without prejudice. The Plaintiffs are granted 14 days in which to file an amended complaint, curing the pleading deficiencies identified in this opinion. Failure to do so will result in closure of this case.

[Dr. Caligari]

The Plaintiffs are granted 14 days in which to file an amended complaint, curing the pleading deficiencies identified in this opinion.

I'll bet 50 Quatloos that they take the judge up on his offer and amend.

I'll bet 100 Quatloos that the amended complaint is just as frivolous as the first one.

[LPC]

The Plaintiffs are granted 14 days in which to file an amended complaint, curing the pleading deficiencies identified in this opinion.

I'll bet 50 Quatloos that they take the judge up on his offer and amend.

I'll bet 100 Quatloos that the amended complaint is just as frivolous as the first one.

No bet. What you're describing are certainties.

[The Observer]

No bet. What you're describing are certainties.

Certainities? These ar de rigueur for any self-respecting tax denier if they don't want to lose street cred.