REPORT AND RECOMMENDATION

GARY R. JONES, Magistrate Judge.

Pending before the Court is Defendant Milton H. Baxley, II's Motion to Dismiss for Lack of Jurisdiction. (Doc. 5.) Plaintiff, the United States, filed a Response in Opposition (Doc. 8) and, therefore, the motion is ripe for review. For the reasons discussed below, it is recommended that the motion to dismiss be DENIED.

I. Background

On February 22, 2013, the United States filed this lawsuit to reduce to judgment the unpaid federal income tax liabilities assessed against Defendant for the years 1995 through 1999 and to collect the unpaid federal income taxes by foreclosing the federal tax liens on Defendant's real property. The United States alleges in the Complaint that Defendant failed to file federal income tax returns for these five years (Doc. 1, p. 2) resulting in total income tax liabilities of $1,525,152.07 plus interest and statutory additions thereon. (Doc. 1, pp. 3-5.) Federal tax liens for the unpaid federal income taxes attach to all property and rights to property belonging to Defendant, including the Defendant's subject property described in the Complaint. (Doc. 1, pp. 2, 6.)

Defendant responded by filing a Motion to Dismiss for Lack of Jurisdiction raising a number of specious arguments and challenges, many of which are typically asserted by tax-defiers.

II. Standard of Review

For the purposes of the motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007), Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (11th Cir. 1994). The Court must limit its consideration to the complaint and written instruments attached as exhibits. FED. R. CIV. P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

"Factual allegations must be enough to raise a right to relief above the speculative level," and the complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. Discussion

A. Statutes of Limitations

Defendant first claims the three-year statute of limitations period for assessing a tax expired prior to the date of the assessment of the tax liabilities alleged in the Complaint. (Doc. 5, p. 1.) This three-year statutory period for assessment applies to the date the return was filed. 26 U.S.C. § 6501(a). In the case of failure to file a return — as is the situation in this case — the tax may be assessed at any time. 26 U.S.C. § 6501(c)(3). Because it is alleged that Defendant did not file a return for any of the five years in question, the three-year statute of limitations is not applicable here.

Defendant also claims the ten year statute of limitations for collection of a tax expired prior to Plaintiff's filing this action to collect the tax. Defendant's argument is incorrect and ignores the fact that the taxes in this case were assessed well within the ten year period. Pursuant to 26 U.S.C. § 6502(a) the United States may collect an assessed tax by levy or proceeding in court if the levy is made or the proceeding begun within ten years after the assessment of the tax. The operative date triggering the statute is the assessment of the tax and not the tax year in question. The assessment in this case occurred in August 2009, well within the applicable ten year statute of limitations.

B. Authorization by Secretary of the Treasury and Attorney General

Defendant also contends the Complaint should be dismissed because it fails to allege that the Secretary of the Treasury authorized the action and that the Attorney General directed that the action be commenced. This argument is incorrect. Paragraph 2 of the Complaint clearly includes these statements, as required by 26 U.S.C. § 7401. (Doc. 1, p. 1.) Accordingly, Defendant's argument has no merit.

C. Homestead Property

Defendant argues that the real property to which the federal tax lien attaches is his homestead property, co-owned with his wife, Defendant Sandra G. Baxley, as tenants by the entirety, and thus exempt from forced sale. While homestead property may be exempt from execution by other creditors, homestead property is not exempt from execution by the IRS. The Supreme Court has held that federal tax collection laws preempt any state-created homestead exemptions. United States v. Rodgers, 461 U.S. 677, 701 (1983). Thus, a delinquent taxpayer's interest in property owned as a tenant by the entirety is not exempt from a federal tax lien, and a federal tax lien may be foreclosed by judicial sale of homestead property. United States v. Craft, 535 U.S. 275, 288 (2002).

Moreover, if there was any question on the issue, the provision of the Florida Constitution establishing the homestead exemption expressly excepts judgments for the "payment of taxes and assessments thereon" from the homestead exemption. Fla. Const. art. 10, § 4(a). Accordingly, as a matter of law the United States is not precluded from foreclosing the tax liens on Defendant's home, even though the property may be owned as tenants by the entireties and may constitute homestead property.

D. Jurisdictional Arguments

Lastly, the Defendant raises a number of specious tax-defier arguments including challenges to the Court's personal jurisdiction, subject-matter jurisdiction, and territorial jurisdiction over the real property to which the federal tax liens are attached. These types of challenges routinely have been rejected by other courts in cases where tax-defiers have attempted to resist the United States' efforts to collect income taxes.

For example, Defendant's argument that the United States has no jurisdiction over his real property because it is located in the exclusive jurisdiction of Florida State is frivolous. Courts across the board have rejected arguments by taxpayers that the taxpayer is not subject to federal taxation because the taxpayer is a citizen of the state in which he resides and not a citizen of the United States.1 Similarly, Defendant's claim that federal income tax is unconstitutional as an unapportioned direct tax is without merit and has been rejected by all courts that have considered the issue.2

Accordingly, Defendant's assertion that the Court does not have jurisdiction (territorial or otherwise) over the real property or over the subject matter of this suit has no legal merit and is nothing more than an attempt to delay the progress of this case and therefore is due to be rejected summarily.

IV. Recommendation

In light of the foregoing, it is respectfully RECOMMENDED that Defendant's motion to dismiss, Doc. 5, should be DENIED and the Defendant should be ordered to file an answer to the Complaint within 14 days of the date of the Court's order denying the motion to dismiss.