Zuckman v. Department of the Treasury , 448 F. App'x 160 ( 2012 )

10-4717-cv
Zuckman v. Department of the Treasury
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of January, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 ___________________________________________________
13
14 ADAM ZUCKMAN,
15
16 Plaintiff-Appellant,
17
18 v. 10-4717-cv
19
20 DEPARTMENT OF THE TREASURY, INTERNAL
21 REVENUE SERVICE, UNITED STATES OF AMERICA,
22 TIMOTHY F. GEITHNER, Treasury Secretary,
23 LAWRENCE R. ENGLE, Revenue Officer,
24 COMMISSIONER OF INTERNAL REVENUE SERVICE,
25 MTA-NYCTA, HALLUM ABDELHACK, RICHARD DREYFUS,
26
Defendants-Appellees.
____________________________________________________
1 FOR PLAINTIFF-APPELLANT: Adam Zuckman, pro se,
2 Brooklyn, NY.
3
4 FOR DEFENDANTS-APPELLEES
5 Department of the Treasury,
6 Internal Revenue Service,
7 United States of America,
8 Timothy F. Geithner, Treasury
9 Secretary, Lawrence R. Engle,
10 Revenue Officer, Commissioner
11 of Internal Revenue Service: Janet A. Bradley, Attorney,
12 Gilbert S. Rothenberg,
13 Acting Deputy Assistant
14 Attorney General, Bruce R.
15 Ellison, Attorney, Tax
16 Division, United States
17 Department of Justice,
18 Washington, D.C.
19
20 FOR DEFENDANTS-APPELLEES
21 MTA-NYCTA, Hallum Abdelhack,
22 Richard Dreyfus: Kristen M. Nolan, Attorney,
23 New York City Transit
24 Authority, Brooklyn, NY.
25
26
27 Appeal from a judgment of the United States District
28 Court for the Eastern District of New York (Garaufis, J.).
29
30
31 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
32 AND DECREED that the judgment of the district court be
33 AFFIRMED.
34 Plaintiff-Appellant Adam Zuckman appeals from a
35 judgment of the United States District Court for the Eastern
36 District of New York (Garaufis, J.), granting the motions of
37 defendants to dismiss his complaint challenging a levy
38 allegedly placed on his wages by the Internal Revenue
2
1 Service. We assume the parties’ familiarity with the
2 underlying facts, the procedural history of the case, and
3 the issues on appeal.
4 We review district court determinations on Rule
5 12(b)(1) and 12(b)(6) motions to dismiss de novo. See
6 Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d
7 Cir. 1997). Dismissal for lack of subject matter
8 jurisdiction under Rule 12(b)(1) is proper “when the
9 district court lacks the statutory or constitutional power
10 to adjudicate it.” Makarova v. United States, 201 F.3d 110,
11 113 (2d Cir. 2000). “In ruling on a Rule 12(b)(6) motion,
12 we accept the allegations contained in the complaint as true
13 and draw all reasonable inferences in favor of the nonmoving
14 party.” Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d
15 Cir. 2002). To survive a Rule 12(b)(6) motion to dismiss,
16 the complaint must plead “enough facts to state a claim to
17 relief that is plausible on its face.” Bell Atl. Corp. v.
18 Twombly, 550 U.S. 544, 570 (2007). Additionally, because
19 Zuckman appears pro se, we are obligated to read his
20 submissions with “special solicitude,” interpreting them to
21 raise the “strongest arguments that they suggest.” See
22 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75
23 (2d Cir. 2006) (internal quotation marks omitted).
3
1 Here, an independent review of the record and relevant
2 case law reveals that the district court properly granted
3 the defendants’ motions and dismissed Zuckman’s complaint.
4 We therefore affirm for substantially the same reasons
5 stated by the district court in its memorandum and order.
6 Even liberally construing his pro se complaint, the claims
7 raised by Zuckman do not satisfy the applicable pleading
8 standards. Contrary to Zuckman’s contentions, the federal
9 income tax is constitutional, wages are taxable income, and
10 the Sixteenth Amendment removed the apportionment
11 requirement for direct taxes. See, e.g., Ficalora v. Comm’r
12 of Internal Revenue, 751 F.2d 85, 87-88 (2d Cir. 1984). To
13 the extent that Zuckman challenges the levy on his wages,
14 there is no indication that he exhausted his administrative
15 remedies. Thus, the district court properly dismissed those
16 claims for lack of subject matter jurisdiction. See 26
17 U.S.C. §§ 7422, 7429; see also Wapnick v. United States, 112
18 F.3d 74, 75 (2d Cir. 1997) (per curiam).
19 We have considered Zuckman’s remaining arguments and
20 conclude that they are without merit.
21
22
23
4
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
5