Scharringhausen

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS FIRST CAUSE OF ACTION OF PLAINTIFF’S SECOND AMENDED COMPLAINT

Presently before the Court is the United States of America’s (“defendant”) Motion to Dismiss Robert M. Scharringhausen’s (“plaintiff’) First Cause of Action of the Second Amended Complaint (“SAC”). Defendant argues that plaintiffs first cause of action must be dismissed for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief may be granted. Plaintiffs first cause of action seeks damages under Internal Revenue Code § 7433, claiming violations of 26 U.S.C. § 7602 (c)(2), 26 U.S.C § 7122, 26 C.F.R. § 301.7602 -l(c)(3)(iii) and 26 U.S.C. § 7491 (a). For the reasons stated below, the Court grants in part and denies in part defendant’s motion to dismiss the first cause of action of the second amended complaint for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) and denies defendant’s motion to dismiss the first cause of action of the second amended complaint for failure to state a claim pursuant to FRCP 12(b)(6).

BACKGROUND

On March 20, 2003, the United States filed a complaint in…