Rodolfo Lizcano - Page 13




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          circumstances in which a Bivens remedy is unavailable:                      
          (1) “Congress has provided what it considers adequate remedial              
          mechanisms for constitutional violations that may occur” in the             
          course of administering a Federal program,6 (2) there are                   
          “special factors counselling hesitation in the absence of                   
          affirmative action by Congress”7 that indicate that congressional           
          inaction has not been inadvertent, and (3) Congress has                     
          specifically foreclosed such relief (and courts cannot judicially           
          create a remedy).8  Id. at 1156 n.3.                                        
               The third circumstance is applicable to the instant case as            
          the Anti-Injunction Act, section 7421(a), prohibits suits to                
          restrain the assessment or collection of taxes.9  The first                 
          circumstance is also pertinent as Congress has given taxpayers              
          the right to sue for a refund.  Sec. 7422.  Additionally,                   

               6Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); see the              
          Court of Appeals for the Fifth Circuit’s decision in Baddour,               
          Inc. v. United States, 802 F.2d 801, 807-808 (5th Cir. 1986), the           
          court to which an appeal in this case would normally lie absent a           
          stipulation to an appeal elsewhere; see also Natl. Commodity and            
          Barter Ass’n v. Archer, 31 F.3d 1521, 1532 (10th Cir. 1994);                
          Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir. 1990); Cameron v.               
          IRS, 773 F.2d 126, 129 (7th Cir. 1985).                                     
               7Carlson v. Green, 446 U.S. 14, 18 (1980); see Chappell v.             
          Wallace, 462 U.S. 296 (1983).                                               
               8See Carlson v. Green, supra at 18-19.                                 
               9Sec. 6330(e)(1) overrides the Anti-Injunction Act and                 
          permits proceedings in the proper court, including this Court, to           
          enjoin the beginning of a levy during the period the levy action            
          is suspended.  See Boyd v. Commissioner, 124 T.C. 296, 299                  
          (2005).                                                                     






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