Westcott v. Internal Revenue Service

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-41065
Summary Calendar Charles R. Fulbruge III
Clerk
PERRY B WESTCOTT
Plaintiff-Appellant
v.
INTERNAL REVENUE SERVICE
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CV-438
Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Perry B. Westcott, proceeding pro se, challenges the district court’s
dismissing, for both lack of jurisdiction and failure to state a claim, his claim
against the Internal Revenue Service (IRS). (His motion for appointment of
counsel is DENIED.)
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41065
Westcott filed this action in September 2007, seeking an order requiring
the IRS to assist Westcott, pursuant to 26 U.S.C. § 6020(a), in preparing his
1998-2004 federal income tax returns and an abatement of his federal income
tax liabilities for those years. In November 2007, Westcott moved for default
judgment pursuant to Federal Rule of Civil Procedure 55, based on the IRS’
failure to file an answer within 60 days after the action was filed. The IRS filed
its answer in December 2007.
In February 2008, the magistrate judge recommended that Westcott’s
default-judgment motion be denied because it was substantively and
procedurally defective, and because the IRS appeared in the action by filing its
answer. Over Westcott’s objections, the district court adopted the report and
recommendation and denied a default judgment.
In April 2008, the IRS moved to dismiss for lack of both subject-matter and
personal jurisdiction, and failure to state a claim upon which relief could be
granted. The magistrate judge’s report and recommendation agreed that the
action should be dismissed because: 26 U.S.C. § 6020 did not confer subject-
matter jurisdiction on district courts to order the IRS to provide assistance in
tax-return preparation when it declines to do so; and Westcott’s action was
barred by the doctrine of sovereign immunity and the Anti-Injunction Act, 26
U.S.C. § 7421(a). In September 2008, over Westcott’s objections, the district
court adopted the report and recommendation, granted the motion to dismiss,
and denied Westcott’s motions for leave to proceed in forma pauperis and for
appointment of counsel to assist with this appeal.
Dismissals for lack of subject-matter jurisdiction and for failure to state
a claim are reviewed de novo. E.g., McAllister v. FDIC, 87 F.3d 762, 765 (5th Cir.
1996) (subject-matter jurisdiction); Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 288 (5th Cir. 2004) (failure to state a claim). Denials of motions for
default judgment and appointment of counsel are reviewed for abuse of
discretion. E.g., Settlement Funding, LLC v. Transamerica Occidental Life Ins.
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No. 08-41065
Co., 555 F.3d 422, 424 (5th Cir. 2009) (default judgment); Salmon v. Corpus
Christi Indep. Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990) (appointment of
counsel).
Westcott claims, inter alia, that the district court erred in dismissing for
lack of jurisdiction and for failure to state a claim because under 26 U.S.C. §
6020(a), the IRS is required to assist taxpayers in tax-return preparation.
Essentially for the reasons stated in the magistrate judge’s reports and
recommendations, adopted by the district court, we affirm.
Among other things, although 26 U.S.C. § 6020(a) allows the IRS to
prepare a tax return in the event a taxpayer fails to file, the statute’s plain
language does not require the IRS to do so. See also United States v. Stafford,
983 F.2d 25, 27 (5th Cir. 1993) (providing that, although 26 U.S.C. § 6020(b)
authorizes the IRS to file a return for a taxpayer, it “does not require such a
filing, nor does it relieve the taxpayer of the duty to file”).
Westcott’s claim that the magistrate judge’s reports and recommendations
are “not binding and illegal” because Westcott never consented to a trial by
consent pursuant to Federal Rule of Civil Procedure 73(a) is likewise without
merit. Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court may, without the
parties’ consent, assign matters to a magistrate judge for a report and
recommendation. See also, e.g., Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir.
2002). Finally, Westcott’s conclusory allegations of due-process violations are
insufficiently briefed, and are, therefore, deemed abandoned. E.g., Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
AFFIRMED.
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