that there is a material issue of fact as to whether the IRS knowingly or negligently failed to release the lien once its legal unenforceability was discovered. Therefore, the court denies defendant's motion for summary judgment against plaintiff on the first cause of action.
2. Section 7433
Plaintiff's third cause of action is for civil damages for certain unauthorized collection actions, pursuant to section 7433. Section 7433 provides in relevant part that "if in connection with any collection of Federal tax . . . any officer or employee [of the IRS] recklessly or intentionally disregards any provision of this title," the taxpayer may bring a civil action for damages against the United States in a federal district court. Section 7433(a).
The Government first argues that the making of an assessment is not a collection activity, asserting that an assessment is a mere determination of tax liability which must precede any collection action by the IRS. The Government is correct that a mere assessment is not a collection action. However, as the Government acknowledges, a notice and demand for payment constitute a collection action, as does the filing of a notice of tax lien.
As discussed in section 1, supra, the September 4, 1989 "assessments" incorporated demands for payment within the same document. See "Statement of Tax Due IRS" Forms, Complaint Exs. 7a-7e. Furthermore, the October 16, 1989 letters were certainly collection notices and were signed by the chief of the Philadelphia Service Center's collection branch. See "Dear Taxpayer" Letters, Complaint Exs. 8a-8e. Also, a notice of tax lien was manually filed on May 1, 1990, with the direct knowledge of at least two IRS Agents; and a notice of tax lien was filed "automatically" on May 17, 1990. Whitmore Decl. paras. 8, 13. All these actions qualify as collection activities under section 7433.
The Government next contends that there is no evidence that any IRS employee acted "recklessly or intentionally disregarded" any provisions of Title 26 in pursuing collection of the Miller deficiency. However, as discussed in section 1 (iii), supra, there are material questions of fact concerning the IRS' actions in the collection of the Miller lien.
Plaintiff's attorney, Mr. Mevi, contacted the Philadelphia Service Center in late October 1989 regarding the assessments and demands issued by that office. Furthermore, on April 26, 1990, Agents Kenneth Whitmore and Jules Tupaj interviewed Mr. Miller, in person, at his home regarding the collection of his taxes. Subsequent to this face-to-face encounter between two IRS agents and plaintiff, Agent Tupaj manually prepared and filed a notice of federal tax lien against Miller at Agent Whitmore's request. Finally, on June 5, 1990, plaintiff's attorney Mr. Brookes wrote to the IRS requesting a copy of the non-existent ninety-day Notice of Deficiency.
All these actions were taken while the IRS was in the process of vigorously attempting to collect a tax deficiency from plaintiff. However, a certificate of removal of notice of tax lien was not filed, however, until July 27, 1990, and the assessments themselves were not abated until August 29, 1990. See note 16, supra.
Given this history, the court finds that there is a genuine material issue of fact as to whether any IRS agent involved in the collection of plaintiff's tax deficiency "recklessly or intentionally" disregarded any provisions of the tax code. Therefore, the court denies the Government's motion for summary judgment on plaintiff's third cause of action.
This court has considered the papers submitted and the parties' arguments. After review of the current motion, and for the reasons discussed above, the court hereby DENIES the Government's motion for summary judgment on plaintiff's first and third causes of action, under 26 U.S.C. §§ 7432 and 7433 respectively.
IT IS SO ORDERED.