Kent Hovind News Item
Robert Baty
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 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
1Failure to file a responsive memorandum may be sufficient cause to
grant the motion to dismiss. N.D. Fla. Loc. R. 7.1(C)(1).
2The 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.
3These 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