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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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