Kent Hovind v Scott Schneider


 * Code Section: Section 7421 -- Collection Restraints Prohibited
 * Author: Vinson, Roger
 * Institutional Author: United States District Court for the Northern District of Florida
 * Citations: Kent E. Hovind, et al. v. Scott M. Schneider et al.; No. 3:02cv297/RV/MCR (31 Oct 2002)

Suit Against IRS for Harassment Dismissed -- Barred by Tax Anti-Injunction Act A U.S. district court has granted the government's motion to dismiss an individual's motion to enjoin the IRS and its agents from contacting and harassing him and trespassing upon his premises.

Summary
A U.S. district court has granted the government's motion to dismiss an individual's motion to enjoin the IRS and its agents from contacting and harassing him and trespassing upon his premises. In an investigation into the tax liabilities of Kent Hovind, IRS special agent Scott Schneider entered Hovind's property to serve four summonses to Eric Hovind (Kent's son), CSE Transportation, Creation Science Evangelism, and Faith Baptist Fellowship. The property was posted with a notice refusing government agents permission to enter the property without written consent. Agent Schneider entered the property without permission and served the summonses. Chief United States District Judge Roger Vinson ruled that since the IRS is pursuing a criminal investigation of Hovind's income tax liabilities the relief sought would impair the IRS's attempt to assess and collect the taxes in violation of the Anti-Injunction Act. And since Hovind did not demonstrate that any of the exceptions to the Act applied, his motion was dismissed for lack of jurisdiction.

Full Text
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

ORDER

[1] The petitioners have filed a complaint to enjoin the Internal Revenue Service ("IRS") and its agents from "contacting, harassing, and trespassing upon the premises of petitioners." The respondents have moved to dismiss the complaint. (Doc. 7) The petitioners have not filed a responsive memorandum.1 The following facts are taken from the petitioner's complaint, and are accepted as true for purposes of ruling on the motion to dismiss.

I. BACKGROUND

[2] Respondent Scott M. Schneider, a Special Agent with the IRS, is conducting an investigation into the federal income tax liabilities of Kent E. Hovind. On July 11, 2002, Schneider came onto the property located at 29 Cummings Road, Pensacola, Florida, with four summons for petitioner Eric Hovind, CSE Transportation, Creation Science Evangelism (a.k.a. CSE Enterprises), and Faith Baptist Fellowship.2 These summons noted that a criminal investigation regarding tax periods 1997, 1998, 1999, 2000, and 2001 was underway against Kent E. Hovind, and provided that each of the recipients of a summons was to appear before respondent Scott Schneider, or any other designated agent, on July 22, 2002, to give testimony and provide copies of certain financial records.

[3] Posted on the grounds of 29 Cummings Road was a sign which reads:

POSTED-NOTICE This Property is Private Property NO TRESPASSING SPECIAL NOTICE TO LOCAL, STATE AND FEDERAL GOVERNMENT AGENTS, EMPLOYEES, AND INSPECTORS PERMISSION TO ENTER THESE PREMISES IS HEREBY SPECIFICALLY DENIED WITHOUT PRIOR WRITTEN CONSENT.

Despite the notice, Schneider entered the premises without procuring prior written consent and served the summons. The petitioners contend that Schneider entered the property, notwithstanding the posted notice, "with reckless disregard towards [their] constitutional rights."

[4] According to the petition, the petitioners have "realistic concerns and fears stemming from previous Gestapo actions of the Internal Revenue Service against [Kent E. Hovind]." These concerns stem from a "raid" that the IRS allegedly performed on Kent E. Hovind's home. The petitioners also allege that "Internal Revenue Service agents are permitted to carry and use automatic firearms in the course of their investigative tactics, which includes terrorizing citizens of this country." The petitioners now seek to enjoin the IRS and its agents from "contacting, harassing, and trespassing upon the premises of petitioners."

II. DISCUSSION

A. Motion to Dismiss Standard

[5] A motion to dismiss for failure to state a claim cannot be granted unless the complaint alleges no set of facts which, if proved, would entitle the plaintiff to relief. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L. Ed. 2d 90, 96 (1974); Blackston v. State of Alabama, 30 F.3d 117, 120 (11th Cir. 1994). On a motion to dismiss, the facts stated in the complaint and all reasonable inferences therefrom are taken as true. Sterphens v. Department of Health and Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

B. Analysis

[6] The Tax Anti-injunction Act [26 U.S.C. § 7421(a)] provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." It prohibits federal courts from issuing injunctions to enjoin the assessment or collection of taxes where the statutory scheme provides an alternative remedy. Woods v. IRS, 3 F.3d 403, 404 (11th Cir. 1993). Its purpose is to permit the government to assess and collect taxes allegedly due without judicial intervention, while allowing challenges to the disputed sums to be determined in a subsequent action for a refund. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 8, 82 S. Ct. 1125, 8 L. Ed. 2d 292, 296 (1962). The Anti-injunction Act will apply unless a recognized exception is applicable.

[7] The Anti-injunction Act does provide for statutory exceptions. However, the petitioners have not asserted that any of these statutorily-created exceptions apply, and none of them appear to be applicable.3 In addition to the statutory exceptions, federal courts may enjoin the collection of taxes if it can be shown that either: (1) under no circumstances could the government ultimately prevail on its tax claim; or (2) equity jurisdiction otherwise exists. Mathes v. United States, 901 F.2d 1031, 1033 (11th Cir. 1990). However, the general rule is that, except in very rare and compelling circumstances, federal courts will not entertain actions to enjoin the collection of taxes. Id.

[8] The IRS is pursuing a criminal investigation regarding Kent E. Hovind's federal income tax liabilities. The actions the petitioners seek to enjoin would impair the IRS's attempt to assess and collect those taxes. Therefore, the Anti-injunction Act is applicable in this instance, and the petitioners have the burden of demonstrating that an exception should be applied. Bowers v. United States, 423 F.2d 1207, 1208 (5th Cir. 1970). The petitioners have not done so. After review of the complaint, it is clear to me that this case does not present one of those "rare and compelling circumstances" necessitating an exception. The Anti- Injunction Act bars this Court from exercising jurisdiction over this matter. As a result, the complaint must be dismissed.

III. CONCLUSION

[9] For the forgoing reasons, the respondents motion to dismiss the complaint (doc. 7) is GRANTED on the basis of lack of jurisdiction. The complaint is DISMISSED, WITH PREJUDICE.

[10] DONE AND ORDERED this 31st day of October, 2002. ROGER VINSON Chief United States District Judge

FOOTNOTES

1 Failure to file a responsive memorandum may be sufficient cause to grant the motion to dismiss. N.D. Fla. Loc. R. 7.1(C)(1).

2 The relationship of these parties to one another and to Kent E. Hovind is not explained in the complaint. However, according to the declaration of Respondent Schneider, Kent E. Hovind has advertised products and services for sale through CSE Enterprises, and Kent E. Hovind is listed on public documents as the "elder" of Faith Baptist Fellowship. According to Schneider, Kent E. Hovind used Faith Baptist Fellowship to transfer property to his son, Eric Hovind. Furthermore, according to Schneider, Kent E. Hovind resides at 29 Cummings Road, Pensacola, Florida, where the unincorporated "businesses" of CSE Enterprises and Faith Baptist Fellowship are located.

3 These exceptions pertain to: (1) a petition for review by the Tax Court for relief from joint and several liability on joint returns [26 U.S.C. § 6015(e)]; (2) the assessment and collection of deficiencies prior to the issuance of a notice of deficiency [ §§ 6212(a) and (c) and 6213]; (3) a premature action for assessing a deficiency attributed to a partnership [ §§ 6225(b), 6246(b)]; (4) suspension of a levy action if a hearing is requested under Section 6330(a)(3)(B) [§ 6330(e)(1)]; (5) suspension of a levy action during the pendency of proceedings for a refund of divisible tax [ § 6331(i)]; (6) the collection of "responsible person" penalties where a bond has been filed [ § 6672(c)]; (7) the collection of a tax return preparer penalty [ § 6694(c)]; (8) the enforcement of a levy on property where such enforcement would injure the interest of a lienholder other than the person against whom the tax has been assessed [ §§ 7426(a) and (b)(1)]; (9) the review of the reasonableness of a jeopardy assessment [ § 7429(b)]; and (10) proceedings for determination of employment status [ § 7436].

END OF FOOTNOTES

Date Published: 10-31-2002