OPINION AND ORDER GRANTING PETITIONER'S MOTION TO DISMISS COUNTER-COMPLAINT

LINDA V. PARKER, District Judge.

The United States of America filed this action to enforce two Internal Revenue Service ("IRS") summons directed to Respondent Patrick J. Conely ("Conely"). The IRS is investigating Conely's tax liability for calendar years ending December 31, 2012 and December 31, 2013. On October 1, 2015, Conely filed a Counter-Complaint against the United States alleging that the IRS' seizure of his property violated his constitutional rights. (ECF No. 6.) Conely also asserts that the IRS' actions caused him damages, including emotional distress. (Id.) Presently before the Court is the government's motion to dismiss the Counter-Complaint. (ECF No. 10.) The deadline for Conely to respond to the motion has long passed, with Conely filing no response.1

The government asserts several arguments in support of its motion to dismiss. First, the government maintains that subject matter jurisdiction is lacking because Conely fails to assert a waiver of sovereign immunity entitling the Court to entertain his request for affirmative relief against the United States. (Id. at Pg ID 46, citing McGinnis v. United States, 90 F.3d 143, 145 (6th Cir. 1996).) The party bringing an action against the United States bears "`[t]he burden of showing an unequivocal waiver of sovereign immunity[.]'" (Id. at Pg ID 47, quoting West v. FAA, 830 F.2d 1044, 1046 (9th Cir. 1987).) The Anti-Injunction Act also generally prohibits a "`suit for the purpose of restraining the assessment or collection of any tax ....'" (Id., quoting 26 U.S.C. § 7421(a).) While recognizing a limited waiver of sovereign immunity set forth in the Internal Revenue Code, 26 U.S.C. § 7426(a)(1), the United States argues the exception is inapplicable to Conely's counterclaims as he is the one against whom the tax is assessed. (Id., citing 26 U.S.C. § 7426(a)(1); McGinness, 90 F.3d at 145.)

Alternatively, the United States seeks dismissal of Conely's Counter-Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Id. at Pg ID 48.) The government argues that the only contention Conely asserts as to why the IRS levy was wrongful is that the levy was issued without a court order. The statute governing IRS levies, however, does not require a court order. (Id., citing 26 U.SC. § 6331.)

Lastly, the United States contends that Conely's Counter-Complaint must be dismissed because counterclaims are not permitted in summons enforcement proceedings. (Id., citing United States v. Rockwell Int'l, 897 F.2d 1255, 1261 (3d Cir. 1990); United States v. Wheaton, 791 F.Supp. 103, 104 (D.N.J. 1992).)

The first two reasons asserted by the United States support dismissal of Conely's Counter-Complaint, although the government's first argument is dispositive as it establishes the Court's lack of jurisdiction over this matter.2

Accordingly,

IT IS ORDERED, that the United States of America's Motion to Dismiss is GRANTED and Respondent Patrick J. Conely's Counter-Complaint is DISMISSED WITH PREJUDICE.