DEPARTMENT OF TREASURY, TAX OFFICE, AND
JOYCE STEWART, Tax Director, Defendants.
High Court of
CA No. 115-99 [4ASR3d79]
February 18, 2000
 T.C.R.C.P. 12(a), providing for default judgments,
requires that a defendant serve his answer within 20 days after the service of
the summons and
complaint against him
 Tardy service alone does
not entitle a defendant to a default judgment since under T.C.R.C.P. 55(e) no
judgment by default shall be entered against the American Samoa Government
unless the claimant establishes his claim or right to relief by evidence to be
scrutinized by the court; default judgments are drastic remedies used only in
extreme situations, as where the adversary process is halted by an unresponsive
party; serving an answer a day late is not such an extreme situation.
 Under T.C.R.C.P.
12(b)(6), a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief; the court assumes the
allegations in the complaint are true, and the burden of proving the absence of
a claim rests on the party seeking dismissal.
 A.S.C.A. § 11.0408
confers jurisdiction on the High Court with respect to disputes concerning the
American Samoa income tax, and A.S.C.A. § 11.0403 incorporates by reference the
United States Internal Revenue Code, 26 U.S.C. § 1 et seq., for income
taxation in American Samoa.
 26 U.S.C. § 7521(b),
which describes procedures involving taxpayer interviews, does not give rise to
a cause of action for a failure to abide by its requirements, and the Court
will not enjoin the tax office from investigations when it appears that a
plaintiff has independently apprised himself of his rights and is exercising
 The deficiency
procedures referred to in 26 U.S.C. § 6201(d) require that a notice of
deficiency be issued before attempting to assess the same, but such notice is
not required to be given at any specific point in an audit.
 26 U.S.C. § 7421(a)—the
Anti-Injunction Act—prohibits suits against the tax office for its actions in
assessing and collecting taxes, and this section does not permit a court to
enjoin a summons.
 When the tax office
concludes that taxes are owed, it must issue a notice of deficiency under 26
U.S.C. § 6212 as a prerequisite to assessment, and it is at that point that a
challenge to the deficiency can be made by petitioning this Court under 26
U.S.C. § 6213, which [4ASR3d80] provides
for an exception to the general prohibition on suits contained in 26 U.S.C. §
 In the case of tax
proceedings, Congress deliberately waived sovereign immunity by providing for
deficiency hearings and refund suits; and as an alternative to naming the Tax
Office and the Director of the Tax Office, a plaintiff may name the American
Samoa Government (“ASG”) as a defendant in a suit founded on valid claims.
Before KRUSE, Chief Justice,
TUAOLO, Chief Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Pro Se
For Defendants, Fiti A. Sunia, Assistant
ORDER ON DEFENDANT’S MOTION
TO DISMISS AND ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Richard D. Ames (“
action on November 12, 1999 with his filing of a “Motion to Quash and/or
Terminate Summons and Second Re-examination of Tax Returns.”
then subsequently filed an “Amended Complaint” on November 15, 1999, alleging
five causes of action against defendants arising out of the Tax Office’s
alleged improper administration of
This dispute arises out of
an audit of
tax returns. After much back and forth between
and the Tax Office, the Tax Office served
with a summons on October 26, 1999, requesting the production of certain
choosing instead to seek relief from this Court. Both his original pleading and his amended
complaint, the latter served on November 15, 1999, request that the Court quash
the Tax Office summons, end its audit, and direct the Tax Office to issue
either a letter of understanding or a letter of deficiency based on its
findings to date. Defendants submitted
their motion to dismiss to the Court on December 6, 1999, and it was filed the
asserts that he did not receive notice of the motion until December 7,
1999. Based on the date he received
notice, which was one day after the statutorily permitted 20 days to file and
serve an answer,
filed a motion for default judgment on December 8, 1999. Plaintiff and defense counsel argued both the
motion to dismiss and the motion for default judgment at a hearing held on
January 24, 2000. [4ASR3d81]
A. Motion for Default Judgment
the requirements of T.C.R.C.P. 12(a).
This rule requires that a defendant “serve answer within 20 days after
the service of the summons and complaint against him . . .”
served a summons and complaint upon the Tax Office on November 15, 1999, and
asserts that he did not receive notice of the answer until approximately 2 p.m.
on December 7, 1999. Based on these
dates, he argues that the motion was not served within the requisite 20 day
period. Calculations made according to
T.C.R.C.P. 6(a) support
position and show that defendants did not serve him until 21 days after he
served his complaint.
 Defendants’ tardy service
does not, however, entitle
to a default judgment. First, T.C.R.C.P.
55(e) states that “[n]o judgment by default shall be entered against the
American Samoa Government . . . or an officer or agency . . . unless the
claimant established his claim or right to relief by evidence satisfactory to
the court.” Second, we have held that a
court must scrutinize the evidence before any default judgment may be
v. Gorniak, 26 A.S.R.2d 85, 86 (Trial Div. 1994). Third, default judgments are drastic remedies
that are to be used only in extreme situations, such as where the adversary
process has been essentially halted by an unresponsive party. H.F. Livermore Corp. v.
Aktiengeschellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir.
1970). Serving an answer a day late does
not even approach such an extreme situation.
The Court will therefore deny
default judgment and address the merits of the complaint.
B. Motion to Dismiss
1. T.C.R.C.P. 12(b)(6)
Defendants base their motion
to dismiss on T.C.R.C.P. 12(b)(6). This rule directs the court to dismiss
complaints that fail to state a claim upon which relief can be granted. Defendants assert that
relief for two reasons. First, the
Internal Revenue Code prohibits suits that interfere with the Tax Office’s
ability to assess taxes. Second, the
Department of Treasury, the Tax Office, and their employees, as agencies of the
government and its employees, cannot be sued because there exists no statutory
authorization permitting suits against them.
 “The . . . standard with
motions of the type before us [l2(b)(6)] is that a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in [4ASR3d82]
support of his claim which would entitle him to relief.” Moeisogi v. Faleafine, 5 A.S.R.2d
l3l-134 (Land & Titles Div. 1987) (citing Conley v. Gibson, 355 U.S.
41 (1957)). In considering a 12(b)(6)
motion, the court assumes the allegations in the complaint are true. Rogin v. Bensalem Twp., 616 F.2d 680,
685 (9th Cir. 1980). The burden of
proving the absence of a claim rests on the party seeking dismissal. Kehr Packages, Inc. v. Fidelcor, Inc., 926
F.2d 1406, 1409 (3d Cir. 1991). For the
reasons discussed below, defendants have met this burden, and as a result,
their motion to dismiss is granted.
Defendants first argue that
under the tax code. We agree, for reasons laid out in the paragraphs that
 A.S.C.A. § 11.0408 confers
jurisdiction on the High Court with respect to disputes concerning the
against the American Samoa Government.
The territorial legislature has incorporated by reference the United
States Internal Revenue Code, 26 U.S.C. § 1 et seq., for income taxation
Am. Samoa Gov’t, 13 A.S.R.2d 52, 55 (Trial Div. 1989). The sections of the IRS code under which
7521(b) (2000), are thus included in the
Samoa income tax laws.
demonstrate that relief can be granted on these claims. The sections he cites can serve as a basis
for relief only in certain situations, none of which are applicable in the
7521(b), which describes procedures involving taxpayer interviews.
asserts that he was never informed of the procedure governing or his rights
under the audit process, as required by this section. Taking this assertion as true means that
under the statutory scheme and gives rise to the possibility of a due process
found, any instance in which failure to abide by the requirements of § 7521(b)
gave rise to a cause of action. In the
absence of such precedent this Court will not enjoin the tax office from
investigations when it appears that Ames has independently apprised himself of
his rights and is at this moment exercising them to the fullest extent
 Claims two through four are
grounded in 26 U.S.C. § 6201(d), which refers the reader to Subchapter B,
entitled “Deficiency Procedures.” We are
unable to find any provisions in this subchapter on which
prevent investigation. While [4ASR3d83] § 6212 requires that
defendants issue a notice of deficiency before attempting to assess the same,
it does not require that defendants issue such notice at any specific point in
2, 3, and 4, thus fail to state a claim upon which relief can be based.
defendants’ requests for further information are “clearly in further violation
of the IRS code, due process and audit procedures,” but this is anything but
clear to the Court.
and although the Court is willing to construe pleadings in the favor of those
facing motions to dismiss, and especially so in the case of those defending
themselves without the benefit of counsel, it is not inclined to research and
assert valid claims sua sponte.
simply too vague to resist the motion to dismiss.
 Even if
cited above, they would be barred by 26 U.S.C. § 7421(a). This section, commonly known as the
Anti-Injunction Act, prohibits suits against the tax office for its actions in
assessing and collecting taxes. Alamoana
Recipe Inc. v. Am. Samoa Gov’t,
24 A.S.R.2d 156, 157-58 (Trial Div. 1993). More specifically, courts have held
that this section does not permit a court to enjoin a summons. See
v. Internal Revenue Serv., 371 F. Supp. 1278, 1281 (D.
1974); Ramos v.
States, 375 F. Supp. 154, 156 (E.D. Pa.
1974). The Ninth Circuit has also held
that § 7421(a) prohibits taxpayers from obtaining an injunction compelling the
tax office to grant taxpayers a hearing before permitting an additional
inspection of their books. Zimmer v.
Connett, 640 F.2d 208, 210 (9th Cir. 1981).
Finally, courts are agreed that § 421(a) denies suits based on alleged
harassment by tax officials, barring their exceeding statutory authority. See, e.g., Black v.
(2d Cir. 1976).
request for the Court to quash summons and enjoin the tax office from further
assessment actions are thus precluded by this enactment.
to comply with the requests of the tax office. If the office concludes that
issue a notice of deficiency under 26 U.S.C. § 6212 as a prerequisite to
assessment. Klauk, 13 A.S.R.2d at
55, Robinson v.
States, 920 F.2d 1157, 1158 (3d Cir.
1990). At that point
petitioning this Court under 26 U.S.C. § 6213, which provides for an exception
to the general prohibition on suits contained in 26 U.S.C. § 7421(a). See Laino v.
630 (2d Cir. 1980).
3. Sovereign Immunity
Does Not Bar a Taxpayer Suit Concerning Deficiency or Refund [4ASR3d84]
 Defendants assert that,
has valid claims under the tax code, they are barred by the doctrine of
sovereign immunity generally enjoyed by ASG agencies. Defendants are incorrect. In the case of tax proceedings, Congress
deliberately waived sovereign immunity by providing for deficiency hearings and
refund suits. Klauk, 13 A.S.R.2d
at 60. As an alternative to naming the
Tax Office and the Director of the Tax Office,
Government as a defendant in a suit founded on valid claims.
For the reasons stated
above, defendants’ motion to dismiss is granted.
It is so ordered.