Marciano v. Shulman
795 F. Supp. 2d 35
D.D.C.2011Background
- Marciano, co-founder of Guess?, sues IRS Commissioner for declaratory, injunctive relief and mandamus, alleging IRS refused to investigate/audit his taxes and failed to explain/document his tax liability for certain years.
- Plaintiff sought copies of his tax returns and an audit; IRS initially could not provide returns for 2000-2004 and 2006, later stating no tax issues exist.
- During 2005-2006, Marciano pursued litigation in California state court against former employees; judgments were entered against him and bankruptcy proceedings followed.
- Marciano filed suit in this district on August 10, 2009, seeking stay of judgments, attachment of funds, tax lien, injunction against further state actions, and a writ of mandamus plus records and an audit.
- IRS moved to dismiss for lack of jurisdiction and failure to state a claim; the court granted the motion, dismissing all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1331 confer a basis for relief with independent causes of action? | Marciano asserts federal question jurisdiction to support his claims. | Shulman contends §1331 does not create causes of action; must rely on other statutes for relief. | No independent cause of action; §1331 provides jurisdiction only. |
| Can FOIA claims be pursued under §6103 without exhaustion? | Marciano argues §6103 provides a basis and FOIA-equivalent relief; seeks records. | Exhaust administrative remedies before filing FOIA suit; Marciano failed to exhaust. | No jurisdiction for FOIA claim; exhaustion required and not satisfied. |
| Does §6321 give a private right of action against nonpayment of tax? | Marciano argues a tax lien provision creates actionable rights. | §6321 does not create a private right of action; no demand or liability here. | No private right of action under §6321. |
| Does §7422 preclude the suit absent a timely refund claim? | Marciano seeks relief not framed as a refund; argues tax issues exist. | §7422 bars suits for refunds or credits until a proper claim is filed. | Suit barred; no valid refund/credit claim filed. |
| Are APA, due process, or mandamus claims cognizable here? | Marciano alleges arbitrary IRS action and seeks mandamus to compel investigation/records. | APA claim not cognizable and mandamus unavailable where other remedies exist; due process not shown. | APA claim fail; no due process right identified; mandamus not available. |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (jurisdictional barriers and need for proper basis for action)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (jurisdictional requirements; presumption against jurisdiction)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (2007) (pleading must be plausible, not merely possible)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (plausibility standard for pleadings)
- Maxwell v. O'Neill, 2002 WL 31367754 (D.D.C. 2002) (FOIA exhaustion and 6103 relationship to FOIA framework)
- Maxwell v. Snow, 409 F.3d 354 (D.C.Cir. 2005) (FOIA/6103 context and agency responses to requests)
- Dettmann v. U.S. Dep't of Justice, 802 F.2d 1472 (D.C.Cir. 1986) (exhaustion requirement for FOIA relief)
- Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454 (1989) (due process and property interest framework)
- Chute v. United States, 610 F.2d 7 (1st Cir. 1979) (duty to act responsibly not applicable mandamus here)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (mandamus limits under the APA)