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USCA1 Opinion
December 22, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1519
IN RE: MICHAEL HAGGERT,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Michael Haggert on brief pro se.
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A. John Pappalardo, Acting United States Attorney, James A.
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Bruton, Acting Assistant Attorney General, Gary R. Allen, David
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English Carmack, and S. Robert Lyons, Attorneys, Tax Division,
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Department of Justice, on brief for appellee.
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Per Curiam. On August 12, 1991, the Internal
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Revenue Service ("IRS") brought an ex parte application in
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the district court for a writ authorizing the IRS to enter
the business premises of appellant Michael Haggert so that
the IRS could effectuate its levy upon, and seize, Haggert's
property in satisfaction of Haggert's federal tax liability.
On the same day, a magistrate judge signed an order
permitting the entry. Following the IRS' seizure of
Haggert's property pursuant to this order, Haggert,
proceeding pro se, filed in the district court on August 27,
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1991, a "Motion to Rescind Order and Restore to Equity," in
which he requested the return of the seized property. The
district court denied this motion on September 19, 1991. On
October 31, 1991, Haggert filed a motion captioned, "Notice,
Offences, Demands and Remedy," in which he argued that the
IRS' levy upon his property had been illegal, requested the
imposition of various criminal penalties against the IRS
agents involved, and damages from the federal government
under 42 U.S.C. 1983. On March 24, 1992, the district
court denied the motion on two grounds: (1) the district
court lacked jurisdiction over the motion, and (2) the
substantive arguments raised by Haggert were frivolous and
"have been rejected as frivolous by every court which has
considered them." Haggert appeals. We affirm, on the
grounds relied on by the district court.
I. JURISDICTION
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Initially, the government argues that Haggert could
not raise his claims in the form of post-seizure motions in
an ex parte proceeding brought by the IRS to enter Haggert's
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premises. Since the sole issue in such an ex parte
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proceeding is whether the IRS showed probable cause to enter
a taxpayer's premises and seize property to satisfy tax
liability, see United States v. Shriver, 645 F.2d 221, 222
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(4th Cir. 1981), the government argues that the ex parte
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proceeding is concluded once the writ of entry has been
granted. Thus, the district court would have no jurisdiction
over post-seizure motions purportedly brought by the
taxpayer in the ex parte proceeding.
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We need not resolve this technical question because
we agree with the district court that there was no basis for
district court jurisdiction over Haggert's claims, whether
those claims are treated as post-seizure motions in the ex
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parte proceeding or, instead, as an entirely new action filed
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by Haggert in the district court.
In part, Haggert's motions appear to request that
the IRS refund to Haggert the amounts seized by the IRS to
satisfy unpaid taxes, on the ground that Haggert did not in
fact owe those taxes. In order to seek such a refund in the
district court, however, a taxpayer first must pay the full
amount of the tax owed and file an administrative claim with
the IRS for a refund. 28 U.S.C. 1346(a)(1). Haggert has
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not done this. Nor did Haggert file a claim in the Tax Court
for review of Haggert's tax liability before payment, as is
permitted by 26 U.S.C. 6213(a).
To the extent Haggert's motions could be construed
as a suit to recover for wrongful levy on Haggert's property,
the district court has no jurisdiction because 26 U.S.C.
7426(a)(1) provides that only a third party can bring a suit
for wrongful levy. A taxpayer, like Haggert, cannot maintain
such a suit.
Haggert's motions also seek criminal penalties
against the IRS agents involved in the seizure of Haggert's
property. It is well settled, however, that only the
Attorney General of the United States or his delegee may
initiate a prosecution for violation of federal criminal
laws. See Inmates of Attica Correctional Facility v.
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Rockefeller, 477 F.2d 375, 379-82 (2nd Cir. 1973).
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Finally, Haggert requests damages under 42 U.S.C.
1983 on the ground that the seizure of his property was
illegal because the IRS did not demonstrate probable cause to
justify the writ of entry. Haggert's 1983 claim, however,
is against the U.S. Government only. Haggert has not served
any IRS agents or other government employees with process as
to any claim under 1983. The government enjoys sovereign
immunity against Haggert's claim, since 1983 does not
provide for any waiver of that immunity. See Hall v. United
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States, 704 F.2d 246, 251-52 (6th Cir.) cert. denied, 464
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U.S. 1002 (1983). Also, section 1983 permits damages actions
against persons acting under color of state law, and not
against persons acting under federal law. Chatman v.
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Hernandez, 805 F.2d 453, 455 (1st Cir. 1986); Zernial v.
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United States, 714 F.2d 431, 435 (5th Cir. 1983). The IRS,
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of course, acts under federal, not state law. Nor could
Haggert bring a Bivens claim, since the federal government
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enjoys sovereign immunity against Bivens claims as well,
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Nuclear Transport & Storage, Inc. v. United States, 890 F.2d
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1348, 1352 (6th Cir. 1989), cert. denied, 494 U.S. 1079
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(1990), and since the tax statutes themselves foreclose
Bivens claims by providing adequate remedies for improper
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assessment of tax liability. Cameron v. IRS, 773 F.2d 126,
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129 (7th Cir. 1985).
II. THE MERITS
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As the district court ruled, even if the district
court had jurisdiction, Haggert's claims were meritless in
any event. We will briefly consider each of Haggert's
arguments in turn.
First, Haggert attacked the sufficiency of the
affidavit of Revenue Officer John Mello in support of the
IRS' application for the writ of entry on Haggert's premises.
Haggert contends that the affidavit is unacceptable hearsay.
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The affidavit of Revenue Officer Mello does indeed
contain hearsay. In the affidavit Revenue Officer Mello
states, "I have been advised of the following by Revenue
Officer Bruce Boyson, whom I know and believe to be a
reliable source of this information." The affidavit then
goes on to set forth the evidence in support of the
application for the writ of entry. This evidence, in sum,
was that Haggert had been issued tax assessments and notices
of deficiency for the unpaid tax liability in question; that
Haggert had neglected or refused to pay the taxes assessed
for over ten days; that Haggert had been issued a notice of
the IRS' intention to levy on his property; that Haggert
leased the business premises on which entry was sought; that
Revenue Officer Boyson had personally observed office
fixtures and furnishings on these premises, which were among
the items to be seized; that Boyson had verified that Haggert
owned these items because both Haggert's landlord and a
Uniform Commercial Code filing at the Secretary of State's
office said so; and that Haggert had refused Boyson's request
for consent to enter the premises for the purposes of levying
on Haggert's assets.
Even in an application for a warrant to enter
premises to search for evidence of criminal activity,
reliance in an affidavit upon hearsay information to
establish probable cause is permissible. A search warrant
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may be issued on the basis of hearsay information, consistent
with the fourth amendment, if issuance of the warrant is
justified by the totality of the circumstances.
The task of the issuing magistrate is
simply to make a practical, common-sense
decision whether, given all the
circumstances set forth in the affidavit
before him, including the "veracity" and
"basis of knowledge" of persons supplying
hearsay information, there is a fair
probability that contraband or evidence
of a crime will be found in a particular
place. And the duty of a reviewing court
is simply to ensure that the magistrate
had a "substantial basis for . . .
conclud[ing]" that probable cause
existed. Jones v. United States, 362
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U.S., at 271.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
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There is disagreement among the circuits whether an
IRS application for a writ of entry is subject to the
probable cause standards applied to search warrants in the
criminal law setting under Gates, id., or is instead subject
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to the less exacting probable cause standards governing
administrative searches, see Marshall v. Barlow's, Inc., 436
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U.S. 307, 320-21 (1978); United States v. Blanchard, 495 F.2d
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1329, 1331 (1st Cir. 1974). Compare United States v. Condo,
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782 F.2d 1502, 1505 (9th Cir. 1986) (applying criminal
standards), with In the Matter of Carlson, 580 F.2d 1365,
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1376-81 (10th Cir. 1978) (applying administrative standards).
Even under the criminal standards, however, we could readily
find "that the magistrate had a substantial basis for
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concluding that probable cause existed." Gates, supra, 462
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U.S. at 238-39 (quotation and citation omitted).
The hearsay statements in Revenue Officer Mello's
affidavit were not those of an unidentified informant, but of
a named IRS Revenue Officer, Bruce Boyson, whose business
address and telephone number are given in an attached
"seizure data sheet." The magistrate judge had ample reason,
therefore, for confidence in the veracity and reliability of
the hearsay declarant. See United States v. McCormick, 309
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F.2d 367, 372 (7th Cir. 1962), cert. denied, 372 U.S. 911
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(1963) ("information . . . communicated in the course of
official business by [FBI] agents among themselves . . . is
[not] excluded by the hearsay rule . . . so as to require the
quashing of a search warrant issued upon the affidavit of one
of the agents setting forth his reliance upon such
information").
In addition, Mello's affidavit adequately sets out
the basis of the hearsay information provided by Boyson.
Giving the affidavit the "practical, common-sense" reading
required by Gates, supra, 462 U.S. at 238, it is implicit in
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the affidavit that the assertions that Haggert received
various required IRS assessments and notices, which Haggert
neglected or refused to pay, were derived from IRS records
maintained in the course of official business. Similarly,
Boyson's hearsay assertion that the office fixtures and
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furnishings belonged to Haggert was supported by a Uniform
Commercial Code filing and by Haggert's landlord. Although
this would appear to be double hearsay, double hearsay is
permissible in such an affidavit if adequate indicia of
reliability are present. United States v. Angulo-Lopez, 791
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F.2d 1394, 1397 (9th Cir. 1986). A Uniform Commercial Code
filing certainly carries ample indicia of reliability.
Boyson's other statements were based on personal knowledge or
observation. If we had jurisdiction to consider the issue,
therefore, we would have no difficulty in finding a
substantial basis for the magistrate judge's determination
that the affidavit was adequate to establish probable cause.
Haggert also argues that the affidavit was
insufficient to support the writ of entry because the IRS did
not submit the actual notices of deficiency and tax
assessments against Haggert. The affidavit, however, stated
that notices of deficiency and tax assessments had been
issued to Haggert for the unpaid tax liability in question.
This was adequate, as the magistrate judge found, to
establish probable cause to believe that Haggert's property
was subject to levy by the IRS. Actual production of the
documents was not required.
Haggert's other points, as the government notes,
were all well-worn tax-protestor arguments repeatedly
rejected by the courts. Haggert argued that he was not a
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taxpayer, and owed no income tax, because his wages were not
income; that he did not live within the jurisdiction of the
IRS, which is limited to Washington, D.C.; that the income
tax is a volunteer tax by self-assessment, and he had not
chosen to volunteer; that the income tax is an excise tax;
and that application of the Internal Revenue Code to tax
Haggert would be unconstitutional. These arguments are
meritless, indeed silly, on their face. See, e.g., Cheek v.
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United States, 111 S. Ct. 604, 612-13 (1991); In re Becraft,
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885 F.2d 547 (9th Cir. 1989); Wilcox v. Commissioner, 848
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F.2d 1007 (9th Cir. 1988); Sullivan v. United States, 788
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F.2d 813, 815 (1st Cir. 1986).
The government's request for the imposition of
sanctions on Haggert, who has no record of repeated frivolous
filings in this court, is denied.
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The judgment of the district court is affirmed.
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Document Info
Docket Number： 92-1519
Filed Date： 12/22/1992
Precedential Status： Precedential
Modified Date： 9/21/2015